Posted on 08/19/2015 6:44:53 AM PDT by SeekAndFind
Donald Trump continues to bewilder political experts. He unabashedly wades into politically dangerous territory and yet continues to be rewarded by favorable poll results. He has clearly tapped into a reserve of public resentment for inside-the-Beltway politics. How far this resentment will carry him is anyone’s guess, but the Republican establishment is worried. His latest proposal to end birthright citizenship has set off alarm bells in the Republican party.
The leadership worries that Trump will derail the party’s plans to appeal to the Latino vote. Establishment Republicans believe that the future of the party depends on being able to capture a larger share of this rapidly expanding electorate. Trump’s plan, however, may appeal to the most rapidly expanding electorate, senior citizens, and may have an even greater appeal to the millions of Republicans who stayed away from the polls in 2012 as well as the ethnic and blue-collar Democrats who crossed party lines to vote Republican in the congressional elections of 2014. All of these voters outnumber any increase in the Latino vote that Republicans could possibly hope to gain from a population that has consistently voted Democratic by a two-thirds majority and shows little inclination to change.
Critics say that Trump’s plan is unrealistic, that it would require a constitutional amendment because the Fourteenth Amendment mandates birthright citizenship and that the Supreme Court has upheld this requirement ever since its passage in 1868. The critics are wrong. A correct understanding of the intent of the framers of the Fourteenth Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Simple legislation passed by Congress and signed by the president would be constitutional under the Fourteenth Amendment.
Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration. Many of Trump’s critics believe that this policy is an explicit command of the Constitution, consistent with the British common-law system. This is simply not true.
Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the Fourteenth Amendment. Here is the familiar language: “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.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the Fourteenth Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.
Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”
Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S.
Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the Fourteenth Amendment. This was a 5–4 opinion which provoked the dissent of Chief Justice Melville Fuller, who argued that, contrary to the reasoning of the majority’s holding, the Fourteenth Amendment did not in fact adopt the common-law understanding of birthright citizenship.
The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.
America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.
Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the Fourteenth Amendment, and characterized the right of expatriation as “a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness.” Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: “The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy.” The notion of birthright citizenship was characterized by another member as an “indefensible doctrine of indefeasible allegiance,” a feudal doctrine wholly at odds with republican government.
Nor was this the only legislation concerning birthright citizenship that Congress passed following the ratification of the Fourteenth Amendment. As mentioned above, there was almost unanimous agreement among its framers that the amendment did not extend citizenship to Indians. Although born in the U.S., they were not subject to the jurisdiction of the U.S. Beginning in 1870, however, Congress began to pass legislation offering citizenship to Indians on a tribe-by-tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become a citizen. Thus Congress used its legislative authority under Section 5 of the Fourteenth Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to the jurisdiction of the United States. A constitutional amendment is no more required today than it was in 1923.
Legislation to end birthright citizenship has been circulating in Congress since the mid ’90s and such a bill is circulating in both houses today. It will, of course, not pass Congress, and if it did pass it would be vetoed. But if birthright citizenship becomes an election issue and a Republican is elected president, then who knows what the future might hold. It is difficult to imagine that the framers of the Fourteenth Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Indians who had been born in the United States. Those who defy the laws of the U.S. should not be allowed to confer such an advantage on their children. This would not be visiting the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. would not be denied anything to which they otherwise would have a right. Their allegiance should follow that of their parents during their minority. A nation that cannot determine who becomes citizens or believes that it must allow the children of those who defy its laws to become citizens is no longer a sovereign nation. No one is advocating that those who have been granted birthright citizenship be stripped of their citizenship. Equal protection considerations would counsel that citizenship once granted is vested and cannot be revoked; this, I believe, is eminently just. The proposal to end birthright citizenship is prospective only.
Political pundits believe that Trump should not press such divisive issues as immigration and citizenship. It is clear, however, that he has struck a popular chord — and touched an important issue that should be debated no matter how divisive. Both the Republican party and the Democratic party want to avoid the issue because, while both parties advocate some kind of reform, neither party has much interest in curbing illegal immigration: Republicans want cheap and exploitable labor and Democrats want future voters. Who will get the best of the bargain I will leave for others to decide.
— Edward J. Erler is a senior fellow at the Claremont Institute.
RE: It means owing exclusive political allegiance to the U.S.
That would disqualify even children born from those who come here as green card holders.
Those who legally apply for permanent residency do so with the INTENT of becoming American citizens.
Rubio’s parents, Jindal’s parents and Cruz’s father all went through this process.
You don’t come to the US and become a citizen overnight. You live here for at least 5 years before you qualify to apply for citizenship.
In the meantime they are technically “not in exclusive political allegiance” to the USA, no matter how much they desire to BE Americans.
So, a strict interpretation of “ exclusive political allegiance to the U.S.” would make Rubio a Cuban at birth and Jindal and Indian at birth.
any person within its jurisdiction
___________________________________
again with the “jurisdiction” phrase...
The writers of the Constitution never envisioned future people to be ignorant of plain speaking..
coupled with the previous part where the 14th Amendment mentions “jurisdiction”, the whole thing is self explanatory...its one long thought...its all connected..
those subject to the jurisdiction of are citizens and have certain unamiable rights..
IOW illegal aliens do not have the rights that citizens have..
When you know that the authors of the Constitution based their ideas on the Greeks and Romans and English Law, and were greatly influenced by the French Huguenots, you know that only those who are citizens can claim the Constitution as their own..
consider Roman law...when Paul who wrote much of the New Testament was being persecuted and arrested by the Roman soldiers, he protested telling them he was born in Tarsus, a Roman city and he had rights as a Roman citizen, and so they immediately left him alone, that Roman citizenship meant something..he had certain rights under the Roman version of the US Constitution..the Roman soldiers would have been executed for touching him..
but as a Jew, a non-Roman he would not have had any rights and if he had just claimed those rights the soldiers would have laughed at him and continued to arrest him..
as a citizen Paul had rights ..without that Roman citizenship he had none..
citizenship brings with it a difference or it means nothing..
the right to vote..does the Constitution give all the right to vote ??? No you have to be a citizen and over the age of 18..
Government jobs..you have to be a citizen to work for the government..
Perverting the meaning of an Amendment to satisfy an end does not mean that unconstitutional practice will be grandfathered in..
American citizens can be stripped of their citizenship, and so can illegal aliens be stripped of a citizenship that was given by fraud and deceit..the illegal aliens were not entitled to receive the status of citizen in the first place..what law allows them to keep something they never qualified for ???
Hasn’t all the Obamacare litigation taught us that the Constitution is now whatever 5 members of SCOTUS say it is?
That may be so, but couldn't it be interpreted also as the children's allegiance is determined by their parents' allegiance and thus citizenship passes to them when their parents become U. S. citizens?
Of course, then the issue of natural born citizen would likely come into play (I'm getting a headache..)
His opponents tried to say he was born in Ireland, then Canada but were unable to prove it. Are you saying Cruz is not eligible to be President?
No, I was saying in #12 “as for the other points, the child of green card holders is a citizen but not an NBC.”
I not depicting trump that way. I know people who are. Would just like to have good response
Trump is very good I think
I didn’t read that article primarily because it’s politico
GO CRUZ!!!
If the child needed to be naturalized I could see your point. The child is born in the US and is a citizen of the US. Would the child of legal immigrants, who haven't yet been naturalized, be a NBC?
OK, here’s my view: It is vital to undo “birthright citizenship”. Any statute or EO which attempts to do so will be declared unconstitutional, probably 9-0.
The task of amending the Constitution, although difficult, is less difficult that replacing five USSC justices in hopes of reversing their decision on the meaning of “jurisdiction”.
Therefore, it is a waste of time to attempt to undo birthright citizenship by any means other than a Constitutional amendment.
If Trump cannot get any new interpretation of this, or get a single favorable new law passed to deal with immigration he can still make a huge difference if he can secure the border and enforce the laws we already have. The naysayers act as though nothing can be done so we must allow illegals to pour in and we must give them handouts and a free pass on crime. The truth is securing the border and enforcing laws already in place is possible, and would make a huge dent in the problem.
My exact thought back in the day.
The people choosing to make citizens of their children are the illegal aliens themselves. What kind of club - or nation - allows non-members to decide who the members of the club will be?
It's an absurdity on its face.
I believe the citizenship of the parents has to be the determining factor as it is in most countries. I would say if one parent is a citizen then the child should be a citizen. If neither parent is a citizen then the child’s citizenship should be that of one or both parents.
If someone is here LEGALLY, has children, and later becomes a citizen they should be able to petition for citizenship for their children at that time, not at birth.
We are in agreement here.
I also believe that because those who applied here and wait their turn to be permanent residents, and eventually get it ( i.e. the green card ), are mostly those who have the intent of becoming Americans after living here for the required 5 years.
If they have a child during the 5 year interim before they are legally allowed to apply for citizenship, the child becomes a PERMANENT RESIDENT like them ( not a citizen ).
The child can then apply for citizenship when he becomes of legal age ( which means he can’t vote if he does not apply for citizenship ).
A partial solution would be no benefits on any type for the family or the child for 5 years. That would weed out the “bennie babies”
Levin stated it well.
OUTSTANDING ping, HiJinx. Thanks. Great article, great thread. Great post, SeekandFInd. Thanks.
HOORAY Edward J. Erler.
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