Posted on 04/24/2005 8:38:00 AM PDT by Founding Father
The UnConstitutionality of Citizenship by Birth to Non-Americans
By P.A. Madison
Former Research Fellow in Constitutional Studies
February 1, 2005
We well know how the courts and laws have spoken on the subject of children born to non-citizens (illegal aliens) within the jurisdiction of the United States by declaring them to be American citizens. But what does the constitution of the United States say about the issue of giving American citizenship to anyone born within its borders? As we explore the constitutions citizenship clause, as found in the Fourteenth Amendment, we can find no constitutional authority to grant such citizenship to persons born to non-American citizens within the limits of the United States of America.
We are, or should be, familiar with the phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This can be referred to as the citizenship clause of the Fourteenth Amendment, but what does it mean? Does it mean anyone born in the United States is automatically an American citizen? Fortunately, we have the highest possible authority on record to answer this question, the author of the citizenship clause, Sen. Jacob M. Howard (MI) to tell us exactly what it means and its intended scope as he introduced it to the United States Senate in 1866:
Mr. HOWARD: I now move to take up House joint resolution No. 127.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.[1]
It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil, something our courts have wrongfully assumed. But what exactly did "subject to the jurisdiction thereof" mean to the framers of the Fourteenth Amendment? Again, we are fortunate to have on record the highest authority to tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:
[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.[2]
Sen. Howard concurs with Trumbull's construction:
Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]
In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now. Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:
[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]
No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:
In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.[5]
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]
Further convincing evidence for the demand of complete allegiance required for citizenship can be found in the "Naturalization Oath of Allegiance to the United States of America," an oath required to become an American citizen of the United States. It reads in part:
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...
Of course, this very oath leaves no room for dual-citizenship, but that is another troubling disregard for our National principles by modern government. Fewer today are willing to renounce completely their allegiance to their natural country of origin, further making a mockery of our citizenship laws. In fact, recently in Los Angeles you could find the American flag discarded for the flag of Mexico in celebration of taking the American Citizenship Oath. James Madison defined who America seeked to be citizens among us along with some words of wisdom:
When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.[7]
What does it all mean?
In a nutshell, it means this: The constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American jurisdiction. It is the allegiance (complete jurisdiction) of the child’s birth parents at the time of birth that determines the child’s citizenship--not geographical location. If the United States does not have complete jurisdiction, for example, to compel a child’s parents to Jury Duty–then the U.S. does not have the total, complete jurisdiction demanded by the Fourteenth Amendment to make their child a citizen of the United States by birth. How could it possibly be any other way?
The framers succeeded in their desire to remove all doubt as to what persons are or are not citizens of the United States. They also succeeded in making both their intent and construction clear for future generations of courts and government. Whether our government or courts will start to honor and uphold the supreme law of the land for which they are obligated to by oath, is another very disturbing matter.
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Footnotes
[1]. Congressional Globe, 39th Congress (1866) pg. 2890 [2]. Id. at 2893 [3]. Id. at 2895 [4]. Id. at 2893 [5]. Id. at 2897 [6]. Id. at 1291 [7]. James Madison on Rule of Naturalization, 1st Congress, Feb. 3, 1790.
Permission is granted to use, copy or republish this article in its entirely only. Last updated 2/20/05.
Congress merely ratified what had always been the law. Congress cannot create constitutional law. I presume in 1924 there was a question of sovereign indian nations claiming their members were not being accorded equal protection of the laws. In response Congress removed the issue from the prospect of the judiciary. Your example being used to prove a negative would not be persuasive to any legal authority.
Exactly! Diplomats were the reason for the wording.
Maybe the child should decide at the age of maturity?
Good post. I am a proponent of increased legal immigration. However, I think the automatic granting of citizenship is absolutely one of the stupidest abuses of the Constitution (among many).
Take the case, where a couple comes to the US on a tourist visa from abroad (perfectly legally). She hides her pregnancy or doesn't show. She can overstay her visa or possibly extend, have the baby in the US and the baby in entitled to US citizenship. The parents having secured a US passport for their child go back to their home country, never paying taxes in the US and raising their children outside of the US. We are producing citizens who know nothing of the US and are not even living there at any time.
Well, now the Mexican police are obligated to return them. Of course, American citizens used to commit murder here and hide in Mexico (and vice versa.) It's not much, but it's a start. These little arrangements probably are more important than the more specacular stuff.
The childish gibberish started when you started calling people who didn't agree with you "ignorant." That's probably why Juanita left you, Mr. Elducko!
And it's so cute how you use the argument "none of the other countries do it!" to complain about some poor child being granted citizenship just because he was born in the USA.
America is different. The right to citizenship of those born here has become a principle of law, one that is unlikely to ever change. And I'll betcha that most Americans support that principle.
Response on post #111
The fact is that you are "ignorant". Constitutionally ignorant. You are also arrogant and rude.
And it's so cute how you use the argument "none of the other countries do it!"
This is a fact. It's a generally accepted policy by most all countries of the world that - now read this carefully - that a child born of two foreign nationals, who are in the country WITHOUT VISA, is the nationality of the parents and not the country of nativity.
The right to citizenship of those born here has become a principle of law, one that is unlikely to ever change. And I'll betcha' that most Americans support that principle.
The left in this country has been able to slip that policy past the nose of Americans. It may be, as you say "a principal of law", but only recently and only temporary. And I'll betcha' that most Americans would vote to repeal the 14th. Amendment and eventually will.
That's probably why Juanita left you, Mr. Elducko![childish moron]
As for my girlfriend "Juanita", asshole, her name is Nina, she is a Mexican national and I married her sometime ago while I was in the Army fighting for morons like you to remain ignorant. She is still a Mexican citizen and my daughter has dual citizenship. Stuff that paradox in your rice hole.
OK, Mr. Supreme Court Justice, if my daughter marries another American, becomes pregnant here in the USA, but gives birth to the child on the Island of Taiwan, is the child a Taiwanese citizen?
No. That would only make me smarter than you, you racist rice ball.
Oh, yeah, you're one smart dufus alright! "Thar gonna repeal the 14th Amendment! Yup! That's whut thar gonna do! Then we'ns can keep all them ferners outa here! [banjo music playing in background]."
[Note to readers. I always start out nice and respectful. But when some crackerheaded goober tells me I'm ignorant, then shows his own ignorance through a series of non-sensical replies, well, I just can't help but engage in a bit of sport.]
You're playing semantics.
...Because the Founding Fathers were precise and used these terms in the contexts intended....
"The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head;Federalist 44-
http://www.constitution.org/fed/federa44.htm
Are you one of those that claim that "rights" are implied?
Yeah,you got me.Saw right through me.I am one of those who believes that I was born with rights,which may have been merely implied before they were stated in no uncertain terms in the Declaration of Independence.
Had the Founding Fathers wanted to grant rights to the states - and I don't know by what authority the feds could do that - the 10th Amendment would have said so.
The founders were not granting rights to the states but limiting their(constituents')rights,like ANY form of government.Far from granting rights,we in America believe that rights precede government,and that governments are established to preserve those rights.And the authority comes from the consent of the governed.
I hate to disillusion you,...
No worries about that.
No I'm not. You're just po'd and confused because some of your long held, but erroneous beliefs are, in fact, wrong!
Federalist 44-
The Federalist paper No. 44, is not the law of the land, the Constitution is. The use of the word "rights" in these papers were for the popular understanding of the times to a not entirely literate society. See the wording of the 9th Amendment and you see the Founding Fathers make a direct connection between "the people" and "rights". Rights are superior to "powers" and that is why the distinction.
If you actually believe that powers and rights are interchangeable and mean the same thing, then you have just condemned this country to become the totalitarian society that we all fear. The Left believes that government has "rights". The concept of rights and powers is the struggle against the socialists that we are engaged in. Socialists/Collectivists believe that government has "right's".
Are you one of those that claim that "rights" are implied?
No.
I am one of those who believes that I was born with rights,
So am I!
Far from granting rights,we in America believe that rights precede government,...
I agree. Rights existed before government.
...and that governments are established to preserve those rights.
Yes, governments are empowered by the governed to protect rights that existed before government.
And the authority comes from the consent of the governed.
Yes, with "the people", where ultimately, all rights and powers reside.
So what's your beef?
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