Posted on 08/18/2015 3:22:38 PM PDT by cotton1706
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. - US Constitution, Amendment XIV, Section 1
(Excerpt) Read more at law.cornell.edu ...
Agreed. They have had a string of recent successes in doing so.
Legislative intent is a foundation issue in understanding and properly applying the law.
Again, agreed. Few are better at it that Justices Scalia and Thomas.
You missed my entire point, which was that arguing original intent on this issue will get us back in front of SCOTUS where we will lose because they are not going to overturn decades and decades of case law (over and above citizenship cases) that rests on the phrase "subject to the jurisdiction." We will ultimately have to get a constitutional amendment to end birthright citizenship. If I am wrong, hallelujah!
That will stop the "birth tourism" industry dead in its tracks.
U.S. Const. art. VI, cl. 2.
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Gray abrogated treaties with China.
The common law of England is not part of the supreme law of the land, nor are the constitution or laws of any state.
Aside from abrogating treaties, Gray applies the “common law” of England. England’s common law is not the supreme law, but foreign law.
Madison letter to Washington October 18, 1787
What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.”
Madison called the English common law “a dishonorable and illegitimate guide” in defining terms in the Constitution.
Aside from abrogating treaties and applying English common law, Gray deliberately misinterprets the jurisdiction clause of the Fourteenth Amendment.
The 14th Amendment:
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Framers of the Fourteenth Amendment explained the jurisdiction clause:
Rep. Bingham:
The Fourteenth Amendment 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.”
Sen. Trumbull:
“‘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.”
Sen. Williams:
Senator during the drafting of Amend. XIV, later as US Attorney General ruled the word “jurisdiction” under Amend. XIV “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” “Political and military rights and duties do not pertain to anyone else.”
The jurisdiction clause is specifically stated to be political allegiance, not territorial bounds.
Ignoring legislative history Gray “presumes” the intent of the jurisdiction clause:
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” 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.”
The Framers of the Fourteenth Amendment make clear that “subject to the jurisdiction thereof” is political and not geographic bounds, specifically stating “allegiance”. Gray ignores their intent conflating “jurisdiction” in the first sentence with the last. The first sentence confers citizenship, the last sentence applies law. These are entirely different matters, in the first instance political and in the last instance geographical.
Having misconstrued the jurisdiction clause as territorial Gray then proceeds to examine the common law of England.
To lend a sheen of legitimacy Gray cites State v. Manuel:
The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State.”
State v. Manuel is an 1838 case before the North Carolina Supreme Court. The following is the first portion of the paragraph containing the cited sentence:
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan’s Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens – and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State.” Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: “The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law.” ….
It is quite clear that Judge Gaston’s references to “our law” and “our constitution” are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method. The cited sentence is inapplicable to the federal government.
Gray’s cite of Manuel to justify use of English common law is dishonest.
Gray’s use of English common law is inappropriate:
Jefferson letter to Edmund Randolph, August 18, 1799:
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.
Gray ignored legislative history of the Fourteenth Amendment and interpreted the intent of the jurisdiction clause territorially rather than politically ignoring the specifically stated intent of its Framers.
He arrogated to himself a system of law “infinitively beyond [his] power to adopt” and erected himself into a legislator deciding “what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States” (Madison letter to Jefferson, Jan 18, 1800).
The holding is binding on lower courts: the SINGLE question of whether Wong was a citizen of the United States by virtue of the first clause of the Fourteenth Amendment was answered in the affirmative.
The rationale when erroneous is dicta. It has little value as precedent or guidance and is not binding on lower courts.
Well, you’re right, but SCOTUS is not the end of the line as so many think.
When SCOTUS blatantly ignores or rewrites the Constitution in its decision, that decision (or the part of the decision that is contra the Constitution) is invalid and not constitutionally binding. Using the Constitution as the basis and giving notice as to why it is unconstitutional, either another federal branch or a state may call out the decision as unconstitutional and, therefore, invalid, null, and void.
Agreed.
The rationale when erroneous is dicta. It has little value as precedent or guidance and is not binding on lower courts.
Since IANAL, I don't know what principle of law makes an erroneous legal conclusion become dicta. I will leave it to our attorneys to argue whether or not Gray's rationale is dicta and not binding.
(To clarify for those who may be following, a judge's remarks are dicta when the remarks are not part of the legal basis for the decision. Ray76 didn't assert that Gray's remarks were dicta because they were not part of the legal basis for the decision. He asserted that they are dicta because they are erroneous.)
As to your points about Gray's wrongheadedness, I'm aware of the myriad arguments for and against Gray's logic. I have been over the citizenship cases with a fine-tooth comb during my years-long debate with birthers.
My citation of Wong Kim Ark, however, was not intended to support Gray's rationale. It was meant to show that various citizenship cases have relied on Justice Marshall's rationale in The Exchange v. McFadden.
Good discussion. Thank you.
Indeed. Without a Convention of States, the primary method for invalidating unconstitutional law is nullification by the states. I know Mark Levin and Judge Nap are at odds on the constitutionality of birthright citizenship, but I'll point out that both support the concept of nullification. The states formed the federal government not the other way around!
I’m glad you get that. I’m also glad Mark Levin and Judge Nap get it. Regardless of who is for it it’s good I think, as you alluded to, to have convinced yourself of the constitutional validity of individual state nullification which I believe, among other things, resides in the Supremacy Clause (Art VI, Cl 2) and the basic presumption of delegated & unprohibited rights residing with the states and the people as confirmed by the Ninth and Tenth Amendments.
What constitutional grounds can override the Declaration of Independence? If it is asserted to be more powerful than British Law when that was in effect, it certainly must be more powerful than any subsequent US Law.
After all, the authority to create the Constitution was conveyed by the Declaration. It is the declaration the created the Nation. It is the mother of all subsequent authority enacted by the United States.
For example, if Congress were to pass a law forbidding slavery, the South could show that the Constitution gave the feds no authority to pass such a law.
Lincoln was the Obama of that era. (Both Lawyers from Illinois who engaged in extra-constitutional executive actions. ) The Union was already routinely violating the constitution as regards fugitive slaves, and Lincoln was expected to issue all sorts of extra-legal "Executive Orders" designed to interfere with Slavery or any other thing as Lincoln saw fit.
Given his subsequent track record, this was not a foolish concern.
Unconstitutional federal action, which is probably at least around 80% of federal action today, is by definition tyranny and, therefore, destructive and should be resisted at every level. It is as true then as it is now.
It is worse now as a consequence of how successful it was then. We allowed the FedGov to cross many bridges back then that it should not have been allowed to cross. Much of our current mess is the consequence of the doctrines and principles that were birthed from that war.
Anchor babies is one of them. Banning Prayer in Public Schools is another. Abortion is a third. "Gay Marriage" is a forth.
In fact, there are a whole host of modern legal maladies which are the result of that conflict.
You: What constitutional grounds can override the Declaration of Independence? If it is asserted to be more powerful than British Law when that was in effect, it certainly must be more powerful than any subsequent US Law.
After all, the authority to create the Constitution was conveyed by the Declaration. It is the declaration the created the Nation. It is the mother of all subsequent authority enacted by the United States.
Well, the D/I isn't considered to have mandatory authority but it certainly is an authoritative document to discover original intent and understanding of constitutional presumptions. It also also I believe lays a valid foundation for secession which could and should be used as a template for states considering secession.
I think I've changed my mind a bit on the validity of the South seceding from the Union because I now realize they should have, as was reflected in the D/I, laid a proper moral foundation and gone through a more step-by-step process of attempting through notification and nullification of unconstitutional federal acts to curtail further unconstitutional encroachment.
The D/I first lays the moral argument for freedom, prudence, and, finally, cessation. It then lists 27 specific grievances. IMO, the South should have begun by nullification of unconstitutional federal acts and taken it from there. As the D/I said, prudence dictates a certain longsuffering before final secession action is taken.
Fast-forward to today, I've told the Texas National Movement they should consider this before launching what likely could be a premature attempt at cessation.
And I agree with you on this. They bungled it. They were too belligerent and in too much of a hurry to make an aggressive political statement. Had they been slower and more methodical, they could have achieved independence, but Lincoln won the political war before he ever got started on the shooting war.
Had they played the political game better, they would have been able to convince the bulk of the Northern states to let them go in peace, but Lincoln was a master at politics, and he had their number coming and going.
Fast-forward to today, I've told the Texas National Movement they should consider this before launching what likely could be a premature attempt at cessation.
I would be very uneasy associating with any group that asserts it's goal is secession or anything of a similar nature. That will be the place at which the tip of the spear is pointed should the time become necessary.
I would suggest that people are better off going about their daily lives, and if they want to move toward's secession, work at economic separation first, and building their own states internal capabilities for supporting it's own population independently of trade with others.
I already make a point to refrain from buying products that come from Liberal states. I will do so if there is no other choice, but I prefer not to buy anything from California, Washington, New York or Massachusetts if I can help it.
Not so fast there. Ogabe willingly took an oath as an Illinois state senator, a US senator, and twice as US POTUS to preserve protect and defend the constitution of the US. I would think that that should constructively constitute swearing allegiance to the USA.
Please don’t dash my dreams of seeing this usurper lawfully executed after being duly convicted for the crimes of usurpation and treason.
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