Posted on 12/26/2023 5:52:00 PM PST by SeekAndFind
The Supreme Court considered what the original meaning of NBC was in Wong Kim Ark. Long read but important to anyone who wants to know what the ORIGINAL INTENT was:
https://www.law.cornell.edu/supremecourt/text/169/649
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem,’—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king....
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established...”
The child of an illegal alien would NOT be a NBC because they were not under the authority of the government at the time - just as an ambassador or foreign soldier is not. All the rest? NBC.
Because that qualifier is why children of diplomats are not considered citizens, for example.
Even American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.
Even a cursory glance at the legislative and statutory history of this topic would show that for the longest time, Native Americans were not considered to be under the total jurisdiction of the United States, given the unique situation involving the status of the Indian territories and reservations. Hence why, once Congress passed legislation revising the jurisdictional relationship between the United States and the Indian tribes/reservations, the 14th Amendment's birthright provision became applicable to Native Americans going forward.
Did you read what you cited?
“...and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.”
You then write “The child of an illegal alien would NOT be a NBC because they were not under the authority of the government at the time - just as an ambassador or foreign soldier is not.”
Illegal aliens are subject to our laws the moment they cross our border. Ambassadors are not, and foreign soldiers are subject to the laws of war in the situation described (”hostile occupation”).
Illegal aliens are subject to American jurisdiction so long as they are within our country. In a conflict between our laws and the those of their homeland, ours would trump their homeland every time (selective enforcement and selective prosecution notwithstanding).
American Indians are an interesting case, as many tribes negotiated treaties with the United States and were, depending on the circumstances, considered to be nations.
“Illegal aliens are subject to our laws the moment they cross our border.”
ILLEGAL aliens are, by definition, here IN OPPOSITION to our government! ILLEGALLY! They are the equivalent of a foreign army.
I start by saying we seriously need a USSC decision on this definition. The court refused 6 cases on Sotero.
I go back to the 1744 definition by Vattel a natural born citizen is born in country by two citizen parents. In other words the child has no option of being a citizen of a second country.
this letter shows the concern of Washington and jay about who should be commander in chief, no foreigner.
https://founders.archives.gov/documents/Washington/04-05-02-0251
Sotero, , Harris, and Haley hd choices when they were born. Example Sotero chosen british citizenship because of his father being a British/Kenyan citizen. In my opinion if you can be a citizen of another country and not exclusively a US citizen you re not natural born to the US. You are simply a US citizen.
I support the children of ambassadors and military serving over seas being natural born. See McCain. But the congress knew there was problem when they passed a resolution so he could run for president.
Ironic coming from a British citizen. ;-)
Children that exist when their parents are naturalized are naturalized as well though a process known as derivation.
The children born after the naturalization of the parents are natural born.
Everyone in the colonies was a British citizen until July 4, 1776.
Since Hamilton emigrated to the United States in 1772, he would have become a citizen via the Declaration of Independence. He was clearly a citizen after ratification of the Constitution in 1789, because he was confirmed as the first Secretary of the Treasury under President Washington.
-PJ
IIRC Ark was declared a US “native citizen.” Can you point out to me in the case where they define natural born citizen. I have read it twice and can no longer see the forrest for the trees.
This is patently false in the judicial, legislative, and the civic sense. Rhetoric aside (because there are tangible effects with mass migration that must be addressed in the realm of legislative and administrative policy), civilians who illegally enter our country are nonetheless categorically different from soldiers enlisted and serving under the color of a foreign country. Per "Plyler v. Doe" from 1982:
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The Fourteenth Amendment provides that
"[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
(Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins,118 U. S. 356, 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67, 426 U. S. 77 (1976). [Footnote 9] Page 457 U. S. 211
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [Footnote 10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized
Page 457 U. S. 212
that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:"
"Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws."
Yick Wo, supra, at 118 U. S. 369 (emphasis added).
In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 163 U. S. 238. [Footnote 11] Our cases applying the Equal Protection Clause reflect the same territorial theme: [Footnote 12]
Page 457 U. S. 213
"Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, each responsible for its own laws establishing the rights and duties of persons within its borders."
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 305 U. S. 350 (1938).
There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.
Page 457 U. S. 214
Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H.R. 63) that was to become the Fourteenth Amendment. [Footnote 13] Cong.Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later, Bingham posed the following question in support of the resolution:
"Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?"
Id. at 1090.
Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State:
Page 457 U. S. 215
"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction."
Id. at 2766 (emphasis added).
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.
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Take note: even though the dissenting Justices (which included William Rehnquist) disagreed with the majority on the matter of how the Equal Protection Clause was applied regarding state education of children of illegal aliens, they did not dispute whatsoever that they were subject to the state's jurisdiction.
Quote (bold is emphasis mine): "CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting...I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state."
You don't say. ;-)
-PJ
side bar Nice post. In ark the court said he was a native born citizen. In some of the cases you posted they used that term. I conclude the use of native born is to avoid the term NATURAL BORN in ark they state the president should be NATURAL BORN a term they admit is not defined in the constitution.
Laura is not wrong.
That Nimrada is even running, shows her ignorance or disrespect for the Constitution.
What about what Alexander Hamilton wrote in Federalist #68? What do you make of that?
Irrelevant. It was an anonymous statement not about the Constitution which did not then exist. If Scotus interprets the Constitution differently than some historical figure did, the Scotus version prevails.
Moreover, Chester Arthur became Vice-President and President while born of an alien parent. Barack Obama became President while being born of an alien parent. Kamala Harris became Vice-President while being born of two alien parents.
There are two classes of citizen, and two only: naturalized and natural born. Every citizen is one of those two classes. Naturalized citizens are born aliens and become citizens at some time subsequent to birth, via a legal process. Citizens who are not naturalized citizens are natural born citizens. Wong Kim Ark, 169 U.S. 702:
The Fourteenth Amendment of the Constitution, in the declaration that"all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,"
contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.
All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States. It says nothing about parents or their status. It speaks only of the child.
Conroy v. Aniskoff, 507 US 511, 519 (1993), Scalia, J., concurring
The greatest defect of legislative history is its illegitimacy.We are governed by laws, not by the intentions of legislators. As the Court said in 1844: "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself...." Aldridge v. Williams, 3 How. 9, 24 (emphasis added). But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. And the present case nicely proves that point.
Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends.
One problem with with quoting what some Framers discussed is that the people never ratified Framer discussions. They ratified the black letter text of the Constitution itself. Neither Framers nor the Federal legislature ratified the Constitution or any of its amendments. That was done by States.
The purported intent of the lawgiver is irrelevant if the actual words of the law have a clear meaning. The words prevail even where the lawgiver's words are contrary to his intent. This is even so with legislation where the legislators voted to pass legislation. The words are ratified or passed into law, the intent is not.
Ex Parte Grossman, 267 U.S. 86, 108-09 (1925)
The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.
"A Matter of Interpretation," Federal Courts and the Law, by Antonin Scalia, 1997. This book contains an essay by Antonin Scalia and responses to that essay by professors Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, and Gordon Wood. There is a final response by Antonin Scalia.
Laurence Tribe, pp. 65-6
Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what a legal text means — what it requires of us, what it permits us to do, and what it forbids — we ought not to be inquiring (except perhaps very peripherally) into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question. To be sure, those matters, when reliably ascertainable, might shed some light on otherwise ambiguous or perplexing words or phrases - by pointing us, as readers, toward the linguistic frame of reference within which the people to whom those words or phrases were addressed would have "translated" and thus understood them. But such thoughts and beliefs can never substitute for what was in fact enacted as law. Like Justice Scalia, I never cease to be amazed by the arguments of judges, lawyers, or others who proceed as though legal texts were little more than interesting documentary evidence of what some lawgiver had in mind. And, like the justice, I find little to commend the proposition that anyone ought, in any circumstances I can imagine, to feel legally bound to obey another's mere wish or thought, or legally bound to act in accord with another's mere hope or fear.
Aldridge v. Williams, 44 U.S. 9, 24 (1845)
In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.
United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)
In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston v. Browder, 1 Wheat. 115, 120 [argument of counsel -- omitted].
Downes v. Bidwell, 182 U.S. 244, 254 (1901)
In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.
Wong Kim Ark at 169 U.S. 658-59:
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established. In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying: "Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide." 6 U. S. 2 Cranch 64, 6 U. S. 119.
In Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects."
Wong Kim Ark at 169 U.S. 662-63:
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said: "All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
The principle of English common law regarding citizenship carried on for three centuries before independence, and it continued after independence, with all thirteen original states explicitly adopting so much of the English common law as was not inconsistent with the Constitution, either in their state constitution or state statute law.
This isn’t 1982 and I think most people accept now that the ILLEGALS flooding America are not here under the authority of government! They are entitled to due process just as any foreign criminal who ends up here is, but they are not “within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign”!
Props to completely dismissing the diaries of the first Supreme Court Justice, the fourth President of the United States, and the first Secretary of the Treasury, who were actually in the room when this was being debated during the creation of the Constitution.
You bolded interesting passages from history, but could just as easily have other parts of the same quote to argue the other side.
From Tribe:
To be sure, those matters, when reliably ascertainable, might shed some light on otherwise ambiguous or perplexing words or phrases - by pointing us, as readers, toward the linguistic frame of reference within which the people to whom those words or phrases were addressed would have "translated" and thus understood them.Tribe then adds "But such thoughts and beliefs can never substitute for what was in fact enacted as law." Just how comprehensive has the natural-born citizen issue been enacted as law? In some of your prior citations, I've seen "native born" substituted for "natural born," but they cannot be the same thing or the Justices would have used the same language.
From Aldridge v. Williams, 44 U.S. 9, 24 (1845)
we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.
From United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)
But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it.
In Downes v. Bidwell, 182 U.S. 244, 254 (1901), did you just copy/pasted the same text from Aldridge v. Williams, 44 U.S. 9, 24 (1845) or did this case just rely on the same wording from the prior one?
On a personal note, I appreciate that you included both sides of the quotations and did not simply limit the wording to the part that you bolded.
Since you cited repeated mentions of the importance of words and their meaning at the time, what do you make of the inclusion of "natural born citizen" in Article II Section 1, but simply "citizen" in Article I Sections 2 and 3? I may be wrong in my assertion, but it appears that the citations you offered have reduced the phrase "natural born" to being superfluous, and that it offers no special distinction to offset the use of only "citizen" when creating Congress. Why do you think "natural born" was included if it offers no value to the office?
-PJ
The child of an illegal alien would NOT be a NBC because they were not under the authority of the government at the time - just as an ambassador or foreign soldier is not. All the rest? NBC.
https://fam.state.gov/fam/08fam/08fam030101.html
8 FAM 301.1ACQUISITION BY BIRTH IN THE UNITED STATES
(CT:CITZ-50; 01-21-2021)(Office of Origin: CA/PPT/S/A)
8 FAM 301.1-1 INTRODUCTION
(CT:CITZ-50; 01-21-2021)[...]
(a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and
(b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child's parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.
[Ultra Sonic 007 #83] “Illegal aliens are subject to our laws the moment they cross our border.”[Mr Rogers #85] ILLEGAL aliens are, by definition, here IN OPPOSITION to our government! ILLEGALLY! They are the equivalent of a foreign army.
If illegal aliens are not subject to U.S. jurisdiction, it means they can rob your house, kill your dog, rape your wife, and give you a penectomy and bilateral orchidectomy, and nothing could be done more than to deport them. That falls under the law of unitended consequences.
For courts to act, they require jurisdiction. Entering the country illegally does not earn one diplomatic immunity. Neither does it make one visiting royalty.
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