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.
The "All persons born or naturalized within the US.......are citizens.." part of the 14th Amendment will one day be amended to restrict citizenship by birth to citizens and those "ferners" who are in the US legally. What part about legal and illegal don't you understand?
The rest of the 14th. Amendment, such as "equal protection under the law" will remain. If we don't remedy the flaws in the 14th., then your grand kids will have to speak Spanish and learn Napoleanic Law. You know, guilty until proven innocent. Like Red China.
Note to readers.
Psssssst! The "readers" really don't care, zook. You flatter yourself.
Read on, there's more:
"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.
This leads to the question of whether or not being in the US "without the Kings permission" or "hostile to the laws of the jurisdiction", does by law enable the offspring of those in the US illegally with the right, under the 14th. Amendment, to claim citizenship by birth. Yes I know it's the custom, but is it really the law.
By statute, it's crystal-clear that anyone born in the U.S. (except children of foreign diplomats) is a U.S. citizen. Indeed, the statutes go much farther and confer citizenship on many people that the 14th Amendment wouldn't confer citizenship on. (People born overseas to one U.S. parent, for example. Indeed, any child under 5 found in the U.S. is, by statute, presumptively a citizen unless it can be proven otherwise.) There will never be a definitive constitutional test unless Congress tries to change the law. (Don't hold your breath.)
No I won't. If it ever gets that far, it will probably be debated in Spanish. Thanks for the elucidation.
If that was his intention in drafting the language of the provision, he did a poor job drafting it. We are left with the words of the Consitution, not his intention.
What part about legal and illegal do you not understand? Also, you never answered my question about the citizenship policies of Taiwan regarding the birth of a child to foreign nationals that are on that Island illegally. You can't answer because you know that the policy of Taiwan contradicts the policy of the US as it applies to the 14th. Amendment. Why doesn't Taiwan have a version of the US 14th. Amendment?
What part of the 14th Amendment don't you understand? What don't you understand about our nation's longstanding legal tradition that those born here are entitled to citizenship regardless of the legal standing of their parents?
What don't you understand about the fact that Taiwan law or French law or Scottish law matter not a whit in determining American law and custom?
You are very confused!
And you are very Confederate.
Actually its not been part of our legal tradition for "over a hundred years", only since about 1965. The tradition before that required some legal standing of the parents, such as residence, for citizenship to be acquired. The story at the beginning of this thread provides the facts regarding the original intent and meaning of the 14th Amendment. It has, like many laws, been selectively enforced. AAMF, the "privileges and immunities" clause of the 14th. Amendment is continuously ignored by federal courts to the detriment of US citizens. So misapplying one part of the 14th and ignoring other parts is OK with you? Might makes right, is that it? The power of the state is all powerful!
The problems of illegal won't go away because we wish it so. It is expensive to all, even you. The 14th. Amendment is flawed by its disuse. It will be remedied someday to support legal immigration and refuse residence and citizenship to those who are here illegally, or there won't be a US to be "a light of freedom for the world".
I think you're wrong. And I an article that says we were denying citizenship to any "illegal" babies before 1965 is also wrong. I dare anyone to find a pre 1965 example of anyone who could prove they were born in the US being denied citizenship because their parents were "illegal."
BUMPMARK
I beg to differ. It's obvious that you know very little of the history, intent and unintended consequences of the passage of the 1965 Immigration and Nationality Act. A law pushed by the Kennedy's, passed by Democrats and signed by Lyndon Johnson as part of the "Great Society". Prior to that law, just because a foreign nationals child was born in the US, it did not automatically assure US citizenship. There were legal entry and residency requirements (jurisdiction?) that, if not met, could cause the child to be considered the nationality of the parents. Your interpretation of the 14th. Amendment, that was meant to make citizens of Southern Negro slaves and Mexicans born in what became US territory or a state, such as California, was not intended, nor was it interpreted until the last 40 years, to confer automatic, undisputable citizenship upon birth.
You may think it so, you may wish it so, but it is not the tradition. It is a corruption of the 1965 Immigration act that has led to this notion. What you are arguing for is a cynical and self serving interpretation of the citizenship clause that was not intended at the time for the contemporary context that is at issue. Do you really think that Congress would have passed this act had it known that wealthy Korean and Taiwanese businessmen and professionals would fly their pregnant wives to the USA, put them up in hotels close to hospitals so that their children would be born on "US Soil" and then fly them back to Korea or Taiwan to be used as "tickets out" in case the communists invaded their countries? I don't think so. Were I a member of the Korean or Taiwan legislatures, I would consider laws that denied the recognition of any such citizenship by manipulation.
You may think you know whereof you speak, but the more you say, the more I know you either don't know, or don't want to admit. The '65 I&N Act needs to be revisited by congress and the legal entry and residency laws restored to the pre-1965 requirements.
I dare anyone to find a pre 1965 example of anyone who could prove they were born in the US being denied citizenship because their parents were "illegal."
"Illegal" immigration was extremely rare prior to 1965. People here illegally were deported along with their children. Their child may have been considered to be a US citizen, but that fact, if so, did not provide an "anchor" for the parents to stay in the US. All were deported. Most Mexicans wanted their kids with them and raised in Mexico. If they wanted their US citizen kids to be raised in the US, they sent them to a family member that was a US citizen. Now, these "anchor babies" are used to enable mama, papa, abuelita e abuelito (that's grandma and grandpa in español), to reside in the US, partly or wholly, at the taxpayers expense. You may argue that the former is more cruel than the latter, but considering the impact of excessive crowding and the reduction in quality of US schools, is it really?
And that is eventually the point of permitting "illegal" immigration. Is it moral?
I know my history and I know the facts. I know a foolish statement when I read one. Illegal immigration was extremely rare before 1965? That's an astoundingly absurd assertion. You think that Mexicans weren't wandering across the border for most of our history? Especially since they were wandering into lands that used to belong to them?
Sorry bucko, your argument has no wings, not even legs.
to read later
Yes. Before the end of the Bracero Program, Mexicans would visit their American relatives in the North, but rarely stayed. I can remember that in the early 1960's, here in California, illegal immigration was not even an issue. By the 1970's, the Immigration Service was raiding businesses in Los Angeles as a result of the '65 Immigration Act.
That's an astoundingly absurd assertion.
No, this statement of yours is absurd. To wit: "Especially since they were wandering into lands that used to belong to them?". That makes it right in your mind, does it? It would seem that you have a curious way of interpreting the law or the concept of a sovereign nation that suits your convenience. I wonder how the island country of Taiwan would fare if it had the amount of immigration from the Chinese mainland that the US has from Mexico? After all, Taiwan used to belong to China, therefore, the Red Chinese have the right to "wander" onto lands that "used (?) to belong to them". N'est ce pas?
All I can say based on reading your posts, especially your last two, is that you ought to be really really careful tossing around the word "ignorant."
e.g., "illegal immegration was extremely rare before 1965".
Moreover, none of your examples regarding Taiwan have any relevance whatsoever regarding the question of whether our tradition and law allows a child born in the U.S. to be considered a citizen. Yet you keep gnawing at them like a dog on a rubber bone. Nor have you been able to find a single case where anyone having been born in the U.S. has been legally denied a claim to citezenship since the 14th Amendment.
You simply have no argument other than to say you don't like the current situation. But that was never the point. You've run completely out of ammo and have lost the debate.
No zook, the point was and is "illegal". Not immigration, not Taiwan, not what you belive, or desire to be fact.
..you ought to be really really careful tossing around the word "ignorant."
In your case its easy to see that it applies. You answer no pertinent questions, you proffer no facts or relate empirical experience. So far, your only tactic of debate is repudiation without substantiation and simplistic repetition. The tactic of a child or the ignorant when they have no argument. Therefore, zook, I yield you the point, such as it is, but not on any facts that you offered and defended, but only to escape an onerous argument with an ignorant man.
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