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 Grahams 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 Grahams statement and Simpsons 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 Constitutions reference to a natural standard for citizenship therefore confuses and embarrasses them. So they prefer to pretend its 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 ...
To make it clear, Kawakita was a 14th Amendment citizen who was not a natural born citizen.
My only mission is to accurately express my own thoughts and reasons (and that is challenge enough), not to convince OldDeckHand or anybody else to change their mind.
Although, I will say that I noticed the context-free citation to Madison for the proposition that the founders were NOT of a mind 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."
We're not talking about natural born citizens. We're talking about anchor babies.
The operative clause there is “To make it clear” and I’ll post what I want.
As will I.
Thanks for the case. Kawakita v. US, 343 U.S. 717 (1952)
My question was aimed at finding the reach of "under the jurisdiction." The example I hypothesized was what I'll call a "nominal citizen," that being a person born on US soil, who at a young age departs the US and resides with his alien parents in an alien land, and other than for being born, is not in the US at the time a draft or other "call for citizens" is made.
Kawakita is quite a different critter from that, as one can discern by reading the case. I don't think finding Kawakita to be a US citizen is a stretch, as he seems to obtain that status by acts that resemble naturalization (oaths of allegiance), even if he has US citizen status at birth (which he would, being post WKA).
Also of interest in the case, are citations to the expatriation by operation of various section of the Nationality Act.
Ahhh, found this, which I think answers my initial question:
"A person with dual nationality may be subjected to taxes by both states of which he is a national. He is not entitled to protection by one of the two states of which he is a national while in the territorial jurisdiction of the other. Either state not at war with the other may insist on military service when the person is present within its territory. In time of war if he supports neither belligerent, both may be aggrieved. If he supports one belligerent, the other may be aggrieved. One state may be suspicious of his loyalty to it and subject him to the disabilities of an enemy alien, including sequestration of his property, while the other holds his conduct treasonable." Orfield, The Legal Effects of Dual Nationality, 17 Geo. Wash. L. Rev. 427, 429.
And so, "subject to the jurisdiction" is clearly not some fixed quantum - and too, a dual citizen born in the US is not amenable to the draft, unless present on US soil.
Kawakita is a darn good example of the risk in finding a dual citizen at birth to also be a "natural born citizen" for purposes of qualification for the presidency.
Well would a simple Law clarify the original intent?
A de jure amendment to the U.S. Constitution is required to lawfully modify the U.S. Constitution, unless you choose to simply and unlawfull disregard the Constitutional law and do as you please by de facto in Congress, the Office of the President, and the Supreme Court.
U.S. Constitutional law and statutory law still to this day do not recognize a right of dual citizenship. The U.S. Supreme Court has entered some arguably contradictory decisions which have had the effect of denying Federal and state governments the ability to enforce some laws affecting individuals exercising de facto dual citizenship privileges in some cases. The U.S. State Department, however, continues to warn that persons who claim dual or multiple citizenships may in some events be unable to avow themselves some protections otherwise due to a person claiming U.S. citizenship and a foreign citizenship/s at the same time.
It depends on the country with whom the dual national shares nationality. Some countries do have agreements that have been codified in particular treaties that shield or insulate its citizen from conscription unless they're on US soil. But, absent those agreements - and there are not very many - Americans who enjoy dual citizenship are required by law to register for selective service (and therefor are subject to conscription), irrespective of their actual residence.
Also, many people don't realize that individuals between the ages of 18-25, who are legal alien residents MUST register with the Selective Service, or face penalties up to and including deportation, FWI
Ping!
Agreed in part. The duty to register covers more people than are amenable to induction. That is, "required to register therefore subject to conscription" isn't true. They are two separate inquiries, with two different sets of rules. See http://www.sss.gov/fsaliens.htm, if you haven't already.
From the Kawakita treason case (and I know it's from 1952) comes a note that says the duty to the US varies, depending on where the dual citizen happens to be residing.
It has been stated in an administrative ruling of the State Department that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States.
The Kawakita case is literally about a person having dual citizenship, and the two countries are at war; and would excuse the person from treason if they were compelled to fight by the other nation. And so, the various duties, especially being subject to conscription, vary.
It is interesting that a dual citizen who performs military service for a foreign country "with which the U.S. is involved in mutual defense activities will be exempt from military service if he is a national of a country that grants reciprocal privileges to citizens of the U.S."
At any rate, I think you agree that a dual citizen has duties to the US that are diluted, compared with the duties of a person with only US citizenship. And, looking the other way, more than one country has a claim on a dual citizen, e.g., the US has a claim on dual citizens living abroad; and foreign countries have a claim on dual citizens living in the US. Exactly what those claims comprise is variable, complex, and can depend on immediate situations.
All of the above pretty far afield from the contention that the US constitution mandates anchor babies, by dint of the 14th amendment. It took a civil war and constitutional amendment to get around the Dred Scott decision, maybe it'll take similar to get around WKA.
ping
Good thing the current occupier of the White House isn't handpicking judges to fulfill his agenda...
SCOTUS just replaced left wingers with communists. No change, as far as net affect.
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