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 ...
The exchange in the Annals of Congress says otherwise. There was indeed a question of citizenship of Mr. Smith, who was born on what would later become US soil. And in Federalist 42, notice the varying state criteria for the establishment of citizenship; primarily residency for a period of time.
As for why the absence of discussion in Federalist 42, I think is because Madison was simply selling the ceding from the states, to the feds, of the authority to make law of naturalization.
I'm open to evidence that the founders were of a mind that children born of transient persons (absence of residence in the US), on US soil, were US citizens at birth. All of the evidence I have seen points in the opposite direction; but I'm no expert on the subject.
Wong Kim Ark is interesting too, as a child of Chinese citizens who were legal residents of the US, but who could NOT become citizens, as a matter of statutory law. Wong Kim Ark relies on the operation of the 14th amendment, and some rank trickery around the phrase "subject to the jurisdiction" in order to find citizenship for Wong Kim Ark.
Contemporary as in the late 20th century maybe, but NOT at the time of the revolution:
A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth (written by Jefferson)
Virginia May 1779
...all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.
http://press-pubs.uchicago.edu/founders/documents/a4_2_1s4.html
Isn't that the operative problem for Smith? He was Barry Goldwater, before Barry Goldwater was Barry Goldwater - some challenged Goldwater's eligibility because he was born on soil that wasn't actually US soil at the time of his birth.
"I'm open to evidence that the founders were of a mind that children born of transient persons (absence of residence in the US), on US soil, were US citizens at birth."
To be clear, that's not the argument I'm making. In fact, I don't think that at the time of the founding, the Framers could envision children being born here to parents that were transient, for the reasons I previously mentioned. It was just a set of circumstances that they didn't address, because they couldn't imagine it.
I have NO DOUBT ever single Framer would be fiercely opposed to children born of illegal immigrants (or transients) being disallowed citizenship. Virtually all of the aliens that were here, had a "permanent" domicile here.
But, what I'm suggesting the US adopt, is that citizenship ONLY be granting to children born of actual citizens (or at least one citizen parent) - and not aliens of any kind, legal or illegal.
"Wong Kim Ark relies on the operation of the 14th amendment, and some rank trickery around the phrase "subject to the jurisdiction" in order to find citizenship for Wong Kim Ark."
This is a seperate discussion, but I don't think Gray could have opined differently, given the circumstances. The 14th says what it says. Yes, perhaps it was poorly constructed and worded, but that's how it was worded. If you are on us soil and you don't enjoy diplomatic immunity, then you are quite clearly "subject to the jurisdiction thereof". As Gray says about the 14th...
"It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."
I think that's right. The authors of the 14th should have chosen their words more carefully.
http://www.freerepublic.com/focus/news/2539663/posts?page=94#94
What you leave out is that part of the discussion that pertained to citizen, not NBC & Madison also further went on to say that
“Mr. Smith founds his claims upon his birthright; his ancestors were among the first settlers of that colony...if he were not a minor, he became bound, by his own act, ... if he was a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature.”
Smith was making his claim that he was a citizen by mere fact of jus soli birthright, however Madison goes on to dispel that claim. Madison further explains farther into his speech on the floor that Smith being a minor at the time of the Declaration of Independence; Smith's citizenship came through his father(ties of nature). IOW, according to Madison, birth on soil did NOT automatically make one a citizen, the parents must have been citizens for the child to become one.
Who are calling a propagandist, asshole?
You continually edit & parse the words of the founders, purposefully omitting that which does not support your argument. Or shall I say, you continually cut & paste from DrConspiracy’s website.
I have NO DOUBT ever single Framer would be fiercely unopposed to children born of illegal immigrants (or transients) being disallowed citizenship
Hey, go F yourself. This was a thread where reasonable people were having intelligent discussion about complicated subject until you showed up and starting launching invective and ad hominem attacks.
You're a little b1tch.
Smith was not a Barry Goldwater as he was born prior to the revolution and his parents were citizens of the colony(society) in which he was born to. Ramsay was arguing that Smith's parents had died before Smith came of age, thus he could not have been a citizen, however he is wrong as Madison went on to explain. Smith's guardians were citizens of the society & since it was the “society” that sent Smith overseas to study & then “intern” under Franklin, Smith had always been recognized as a citizen of the society in which he was born to because his parents were members of that society at his birth & upon the Declaration, that status had not changed, thus when the colonies became states, those that adhered to the cause, became themselves citizens of the new US State & union.
I'm sure it was well-deserved, very well-deserved.
It's not a question of being "disallowed." The issue is what attaches automatically. Can the US reach the child born to transients, and without qualification, subject them to the jurisdiction of the draft, regardless of where they are located in the world?
-- If you are on us soil and you don't enjoy diplomatic immunity, then you are quite clearly "subject to the jurisdiction thereof". --
Same issue as above. "subject to the jurisdiction" can be read to mean "must obey the traffic and nuisance laws," or it can be read as owing allegiance. When I am in Europe, I am subject to the jurisdiction, but I'm at the same time subject to the jurisdiction of the US (see tax and other laws that associate with citizenship).
If the 14th amendment is ambiguous, and one must reasonably concede it is, see dissent in Wong Kim Ark; which construction (as between "has to obey local custom" and "owes allegiance") is most likely what the drafters intended?
That said, the reason I brought up Wong Kim Ark wasn't for what it said, per se, but rather to point out the condition of the law before that case was decided. Birth on US soil was NOT enough to obtain citizenship.
Right, for black people. Absent slavery, the 14th Amendment never would have been enacted.
Actually, yes. There's a case from WWII, Nishikawa v. Dulles that held just that.
Wrong case, give me a sec to find the right one.
You are debating a “brick wall”. Old Deck Hand has a personal stake in this matter & the erroneous WKA ruling is the only thread holding his dream world together.
No disagreement. But there is a time span and there are cases (not referring to SCOTUS, even though there may be cases, but to immigration/citizenship decisions by federal authorities) between ratification of the 14th, and the Wong Kim Ark decision.
I think we are in general agreement, that the founders saw birthplace as potentially relevant (and I think they assumed "birthplace" corresponded with "residence of parents"), but not conclusive - that in contrast with modern US law that holds birthplace alone as conclusive and sufficient. Not just for citizenship, but for eligibility to the presidency as well.
Kawakita v. United States is the cases. Kawakita, a dual Japanese/US citizen was convicted of treason for helping the Japanese during WWII, although he returned to Japan just before reaching the age of majority. If they can convict you of treason, they certainly can convict you of draft evasion.
Stupid is no way to go through life, son. Here, if you are going to mention someone in a post, the custom is to ping that person, although I wouldn’t expect someone as ridiculously immature to understand that.
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