Posted on 08/01/2010 8:30:59 AM PDT by EternalVigilance
In an article I just read at the American Thinker website, Cindy Simpson reacts to Sen. Lindsey Graham’s opinion that “Birthright citizenship I think is a mistake.” She says “Although Graham talked about “changing” the Constitution to outlaw the practice, many experts say the Constitution as written does not authorize birthright citizenship in the first place.”
Both Graham’s statement and Simpson’s comment describe the situation in an inaccurate and misleading way. The problem is not “birthright citizenship.” Most American citizens are birthright citizens, meaning simply that at birth, and without need of any process of naturalization , they are natural born citizens of the United States. In this sense, birthright citizenship cannot be abolished without making citizenship the arbitrary gift of government, rather than a fact arising from unalienable right. The Constitution itself takes cognizance of this natural route to citizenship when it specifies that, except for those who were citizens at the time of its adoption, only natural born citizens shall be eligible for the Office of President of the United States. Of course, for purely ideological reasons most contemporary so-called experts want to reject the idea that the U.S. Constitution in any way requires a jurisprudence of that relies on the concept of natural right (jus naturale) or natural law (lex naturalis). The Constitution’s reference to a natural standard for citizenship therefore confuses and embarrasses them. So they prefer to pretend it’s not there.
But it is there, and its common sense meaning was so taken for granted at the time the Constitution was written that use of the term “natural born” stirred no controversy and little discussion.
(Excerpt) Read more at loyaltoliberty.com ...
Whoops. Forgot the link to the American Thinker article he references:
http://www.americanthinker.com/blog/2010/07/the_question_of_birthright_cit.html
Anyone with a working knowledge of this section of the Constitution.
Wasn’t this put in the Constitution to protect children born to SLAVES-Period?
btt
Yes. It was never intended to make citizens out of the children of parents who were subject to foreign governments and not our own. That’s crystal clear.
Take it to SCOTUS.
Absolutely right. And, people always get this wrong. It bugs me.
The US should do what many (maybe even most) of the European countries have done, and adopt a lux soli requirement, rather than a plain jus soli requirement. That is to say that not only do your parents have to be in this country legally, at least one of your parents has to be a US citizen. Yep, I know that's not exactly what the Founders had in mind, but things change depending on circumstances, and our circumstance is now dire. Until we do that, our problems will continue, IMHO.
Well, it's also clear from reading the Congressional record from the period when this Amendment was being debated, that there were PLENTY of Representatives and Senators who knew precisely that this is what the practical effect of the 14th Amendment would be. One of the Senators actually goes on at some length about how "gypsy trespassers" would be given citizenship for their children because of the 14th Amendment. So, they wouldn't at all be surprised by our current predicament.
I think that is exactly what the founders had in mind. Expanding citizenship is the result of one of Chester A. Arthur's hand-picked Justices seeing to it that citizenship is assigned on place of birth, regardless of the citizenship of the parents.
I think it is prudent and necessary for Americans to reconsider the criteria for citizenship that make “anchor babies” possible. But unless we mean to disclaim U.S. jurisdiction over the illegal immigrants and other regular (i.e., not treaty exempted) non-U.S. citizens on our territory, I seriously doubt that it can be done without a constitutional amendment. A careful reworking of the relevant language of the 14th amendment is readily conceivable. But it would have to rely on the simple distinction already alluded to in the Constitution, between natural born (of U.S. citizen parentage) and naturalized citizens.
I'm not so sure. Madison said this in a speech in House in 1789...
"It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States."The circumstances - the technological circumstances - are so different today from what they were in the late 16th century, it's tough to draw any parallels to their situation and our situation. The Founders couldn't possibly have imagined the ease and expediency of intercontinental travel. When people came here in the late 1700s, they were coming here permanently and they were coming here to be Americans, unless of course they were children of diplomats - which was INCREDIBLY rare.
If you would have told Madison that - "Hey, that child born this morning in Virginia could be back in France late this afternoon", he probably would have had a different opinion about the importance of "parentage".
Remember, the Naturalization Act of 1790 came some three years after the adoption of the Constitution. When they actually wrote the Constitution, they weren't even thinking about the criteria for citizenship or naturalization, as neither is even mentioned in the USC, except in relation to the Executive.
Then I think an amendment to clarify ORIGINAL INTENT is in order.
US Const., Art. 1, Sec. 8 - Powers of Congress
The Congress shall have Power ... To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; ...
As for Madison's thoughts as to the importance of common rules for naturalization, see James Madison, Federalist, no. 42. Residence is mentioned as pertinent (corresponding with your remarks about ease of travel now, vs. then); and I think the presumption that residence and citizenship are hand-in-hand is clear.
Carrying the principle into practice, the quote you cited refers to a specific case, that of a Mr. Smith.
... it will therefore be unnecessary to investigate any other. Mr Smith founds his claim [of being a US citizen for 7 years, and qualification for a seat in the House] upon his birthright his ancestors were among the first settlers of that colony.
Place of birth is (was, at the time), in general, the most certain finding to establish allegiance. In Mr. Smith's case, place of birth happened to coincide with the residence of his parents. And so, while the snip you isolated appears to say "look at location only," the case in hand looked at the residency of the parents, which happened to be the place of Mr. Smith's birth.
The full speech is interesting. It discusses the vesting of US citizenship to inhabitants, in place of what had been allegiance to Great Britain, before the revolution was concluded.
Here is a link to the "Congressional Record" of the era. Madison's remarks are some pages hence from the starting point I've linked below. Mr. Smith speaks on his own behalf, and arguments are made on both sides of whether or not he was a citizen before reaching the age of 18, and how his absence from the US may affect the outcome of the question. I'm reading through it now, for the first time, but thought you would enjoy it soonest.
Annals of Congress, House of Representatives, 1st Congress, 1st Session - Starting at page 413.
And let us suffer the decision of The Wise Latina and the upcoming Kaganator?
No thanks.
Just replace the legislatures at all levels with some AMERICAN PATRIOTS for a change.
This is such a common sense issue, it doesn't even deserve to be discussed, let alone abused and misinterpreted like it is now.
If you are not an American citizen, you cannot give birth to American citizens, period.
That's one of those instances where you think you've finished your thought, but your fingers forgot to type it. I meant to add that it (naturalization) was delegated to the Congress.
The larger point I was trying to make is that the Constitution doesn't make any attempt to define who qualified for the legal state "citizenship" beyond those people who traveled here (naturalization). I think from a fair reading of the contemporary literature, the assumed and accepted classification of (virtually) any child born "here" would be of "US citizen" and the idea of a child being born to someone who wasn't supposed to be here, hadn't yet been conceptualized. In short, if you were "here", then you were supposed to be "here", assuming of course you weren't subject of an enemy of the state.
Even in Federalist 42, Madison doesn't address the circumstance of being born on US soil, I think probably because there wasn't any question about what the citizenship status would be of a child born on US soil. Madison, after all, certainly would have been aware of Calvin's Case
Of course, that presupposes it was a white child.
or how about going back to the original language of the 1866 Act:
The 1866 Act provides: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's parents, remained a citizen or subject of the parents' home country was not entitled to claim the birthright citizenship provided by the 1866 Act.
Having a Constitutional Convention in this country today would spell the end of the USA. The welfare class is already larger than the providers and is growing far faster than the producers. There is no way that today’s liberal could limit themselves to amending only the birthright parts of the Constitution. We would end up with several or maybe even hundreds of changes that would abrogate the intent of Jefferson, Washington, Adams et al. You could kiss off the Electoral College, for instance, the only thing that makes the small states relevant. A few other changes like that and the USA would be ruled by New York City, Chicago, and LA.
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