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.
legislative intent is non sequitur when the statute or const'al article under consideration is clear and unambiguious. The Const. is replete with ambiguious terms (due process, unreasonable search, etc) but the one you're worked up about is without any ambiguity, it says something clear and simple and therefore means precisely what it says. All of the fervent teeth-nashing and breast-beating will not change the plain meaning of the words used in the article.
I'm reading you loud and clear now. Nevermind.
"I can just imagine a young Tesla trying to immigrate here today.. the professional associations and protectionists would try to stop him."
---
I fear they already have...:
http://www.freerepublic.com/focus/news/1237232/posts?q=1&&page=190#190
I think many have different views of what they want for America.
I see America as a commercial state, where even a poor person can become rich. And where people from around the world who believe in liberty can come. The only limitations I would seek for immigration are to make sure it isn't enough to destabilize the nation. So many more then we are letting in legally now.
I also see America as revolutionary in nature. Where we don't stop new technologies.. even if they would mean millions losing their jobs. So scientists from around the world, who get held down by their nation's bureaucracies, special interests, eco-nazis or whoever.. can come to America and pursue their dreams.
There's plenty of dispute about what "subject to the jurisdiction thereof" exactly means. Does it mean that arresting authorities in the United States who arrest illegals for crimes committed here DO NOT have to notify the Mexican consulate or embassy of their arrest by virtue of their being "subject to the jurisdiction" of the United States and therefore not subject to any Mexican jurisdiction? Teh government of Mexico is claiming that they must be notified as the arrestees are still Mexican citizens and subject to Mexican jurisdiction. The case of Jose Ernesto Medellin is on the Supreme Court's docket for this term. We'll see.
When I was in 2nd grade we had one of those workbook exercises where you had to match a question with an answer by drawing a line across two columns. I knew the answer to question 5 was C, but my line pointed somewhere between C and D. My teacher marked it wrong. "But I meant to draw it to C!" I said. "But you didn't!" she replied.
No. Given the manifestly simple language of the 14th Amendment, its authors' intent means nothing.
I see things the same way you do.
In fact, we see things similar to how Ronald Reagan saw them. From his fairwell Address:
The past few days when I've been at that window upstairs, I've thought a bit of the `shining city upon a hill.' The phrase comes from John Winthrop, who wrote it to describe the America he imagined. What he imagined was important because he was an early Pilgrim, an early freedom man. He journeyed here on what today we'd call a little wooden boat; and like the other Pilgrims, he was looking for a home that would be free. I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.
"And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here."
well I was told I was eligible for German citizenship. There wasnt ever any doubt for me either...
you are correct about the Presidency thing though. I am eligible, but not even close to willing.
Therefore, by your logic, the intent of your reply is irrelevant.
I beg to differ. In the real world, not that of the economic theoretical, immigration is increasing the price, cost and shortage of entry level rental dwellings. At the same time, urban planners have become reluctant to issue permits to build apartments because the cities do not want the density that comes with immigrant housing. As the price to rent an apartment goes up - and it does with illegal immigration - so does the cost to buy a single family dwelling or condo.
In Mr. Medellin's case, the Mexican government is playing the part of a juvenile's parents - but in no way is the jurisdiction over the right to prosecute Mr. Medellin for his crimes affected. His case is essentially no different than that of an arrestee who wasn't read their Miranda rights, as far as I can tell, with procedural violations being at issue, rather than whether the United States has a right to arrest and prosecute Mr. Miranda in the first place.
There should only be citizens of states.The "citizens" of the federal government are the states themselves through their duly elected representatives.
On the contrary, in Medillin's petition, the Government of Mexico raises the issue of diplomatic protection of its citizens and has asked for an annulment of the conviction and sentence for Medillin. That certainly raises jurisdictional questions and materially affects the right of the State of Texas to prosecute Medillin for his crimes. See this quote from the brief filed on Medillin's behalf in the Supreme Court case:
Seeking relief on its own behalf and, in the exercise of its right of diplomatic protection, of its nationals, Mexico claimed that the United States had violated Article 36 in each of those cases and requested, among other relief, the annulment of the convictions and sentences of the 54 Mexican nationals
marking
Here is Article 36 of the VIENNA CONVENTION ON CONSULAR RELATIONS
Article 36
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded unde this Article are intended.
Please note Section 2 above - why? Because it confims the receiving State's jurisdiction. And note that the last sentence of 36 1 (b) seems to be at issue in the Medellin case, and doesn't speak at all towards jurisdiction.
Further, please note Article 41 para 3, which affirms the receiving State's jurisdiction over consular officers, by stating that:
3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.
In fact, the only time a consular officer is afforded immunity is during the course of his or her duties, as specified in Article 43:
Article 43
IMMUNITY FROM JURISDICTION
1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
Seeing that Mr. Medellin was not a consular officer, and certainly not acting as one when he committed his crimes, the argument that his case is about jurisdiction has nothing to support it.
Plainly put, the United States has jurisdiction over persons on it's territory. And as things stand right now, that jurisdiction confers American citizenship to those born under it, per the 14th Amendment.
Let me know when you feel like explaining why my reply was irrelevant.
Ok, because you claim that "intent" is irrelevant. Therefore, whatever "intent" your reply had, regardless of your intent, it was irrelevant.
Since you like parables, how's this:
Suppose you were driving along the street, obeying all the traffic laws and someone steps out in front of your car and you kill them. What was your intent? Murder? Manslaughter? What shall the DA charge you with? Or was it an accident and your "intent" was not to hurt anyone at all. But, like your 2nd grade example, you did kill the jaywalker, therefore, according to your logic, your intent, benevolent or malevolent, is irrelevant. You have the right to remain silent.
In the case of the 14th Amendment, the context of the times was slavery and the patriation American Negroes from slaves to full US citizens and not for Mexican nationals to purposely arrange the birth of their offspring within the US to make them US citizens. It was not the intent of the 14th. Amendment to promote Mexicans into jaywalking across the US Border, drop their kid in El Norte` and use the newborn to get a specious legal argument for residence. Making US citizens out of Mexican newborns was not the intent of the 14th. Amendment, as the commentary from the times, posted at the beginning of this thread, bears witness.
If you have or will ever sit on a jury, intent is a large consideration during the trial and deliberation. I admit that the wording of the 14th. Amendment is very broad, but no person of integrity would ever imply that the intent was to enable foreign nationals, conceived as such, to become US citizens if birth takes place within US borders.
There is nothing secretive or complex about jurisdiction when the issue is "in personam" jurisdiction for purposes of constitutional application. If a living human being is within the borders of the US, including any territory or possession, that person is subject to the jurisdiction of the American law and the judiciary for all purposes. The attempt to create some fatuous distinction and non-extant ambiguity is meaningless. The question is so finally resolved that it wouldn't even make a good constitutional law I exam question.
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