Posted on 08/27/2015 7:23:36 AM PDT by dangus
The chattering class insists that the 14th amendment automatically grants citizenship to children of illegal aliens. They do this by relying on the public's ignorance of the 14th amendment and the obscurity of the meaning of "under the jurisdiction thereof. The author of the 14th amendment was very clear when he proposed it, however:
"This amendment, which I have offered is simply declaratory ... that every person born within the United States, and subject to their jurisdiction is by virtue of natural law and national law a citizen of the United States. This will not of course include persons born in the United States who are foreigners, aliens, ..."
The problem is that the mainstream media either omit the pasage "and subject to the jurisdiction thereof" or lead their audience to falsely presume what it means to be subject to a jurisdiction.
Foreigners are subject to U.S. law while residing in the United States because the land they are on are the jurisdiction of the United States. But citizens are also the jurisdiction of the United States, not just land. Foreigners, even those in the United States, are only the jurisdiction of the United States where that jurisdiction has been granted by their home country under the terms of their entry.
If that sounds too abstract, let's look at simple examples:
EXAMPLE 1: Joe is sent to war in Vietnam, and doesn't return. Vietnam claims he is dead. Is he legally dead? Not until the United States declares him legally dead. He was in Vietnam, but he was under US jurisdiction, not Vietnamese.
EXAMPLE TWO: Bill sleeps with a sixteen-year-old while visiting Elbonia. Under Elbonian law, this is statutory rape. He is tried in Elbonia, not because HE is under Elbonian jurisdiction, but because he is on land within Elbonian jurisdiction.
EXAMPLE THREE: Elbonia passes a law granting divorce without spousal consent. Bob wants to divorce Maria. So he goes to Elbonia. But Elbonia will not grant him the divorce, because they respect that Bob is under American jurisdiction.
EXAMPLE FOUR: This gets tricky: Fatima is granted a divorce from Ali, and moves to America. She and her daughter become citizens, and convert to Christianity. Then Elbonistan rules that because she has become Christian, she loses custody rights. Both the U.S. and Elbonistan claim jurisdiction over Fatima's daughter.
The point is regarding what is the correct meaning of the term "subject to the jurisdiction thereof" in the 14th amendment.
That it has nothing to do with being subject to the laws is demonstrable by the fact that Indians were subject to the laws, but apparently not "subject to the Jurisdiction thereof".
Had they been "subject to the jurisdiction thereof", they would have been citizens.
Again, this demonstrates that "subject to the Jurisdiction" does not mean the same thing as "subject to our laws."
And once again, Foreign Indians, (the bulk of illegal immigrants) are less subject to our jurisdiction than were US born Indians, and if US born Indians couldn't be citizens, then by no stretch could the children of foreign Indians be citizens.
Go find a piece of paper and a brick. Write on the paper “You’re an idiot”. Tie it to the brick, and then throw it through your front window.
Except that neither opinion in these cases conflates Indians with immigrants in the way you're trying.
The Elk opinion and the WKA opinion were authored by the same Justice -- Horace Gray. I think that Justice Gray understood better than you why these opinions aren't conflicting.
The whole subject is academic because as we know the Justices will rule as they please unrestrained by the wording in the Constitution, ethics, or anything else. But thanks for a polite conversation.
If you can find an example of someone who is resident in the U.S. in the year 2015 who is not a citizen, doesn’t have diplomatic immunity and is not subject to the jurisdiction of the United States, I would be most interested in hearing about them.
Illegal aliens are required to register for the draft and they are counted for census purposes.
Subject to the jurisdiction means that a legal entity, such as a court or the government of a country, has the right to exert physical control over as well as apply and enforce its laws against a person. It is a stipulation contained in the Fourteenth Amendment to the U.S. Constitution that defines who is eligible for citizenship. The precise meaning of the phrase has been the subject of debate by scholars and lawmakers, and has been defined in particular situations by the U.S. Supreme Court.
The citizenship clause of the U.S. Constitution confers automatic citizenship on anyone who is “born or naturalized within the United States, and subject to the jurisdiction thereof.” Establishing whether or not a person was born or naturalized in the U.S. has historically been relatively easy. The question of whether a person born or naturalized in the U.S. is also subject to its jurisdiction has been less clear when applied to certain populations.
In court cases, the U.S. Supreme Court has held that it does not apply to children of diplomats, ministers, consuls, or embassy staff. As foreign nationals in the U.S. on the business of their governments, the parents and children owe their allegiance to their home country. They are not subject to the jurisdiction of the U.S., and are immune from most laws and from prosecution.
A child born in the U.S. to parents who are not on assignment by a foreign government is subject to the jurisdiction of the U.S. and is considered a citizen. The parents could be traveling in the U.S. or be in the process of legal or illegal immigration. In legal terms, the distinguishing point is not whether the parents are citizens of another country, but whether the parents are active agents of a foreign government, immune from the laws of the U.S. If the parents are in the U.S. of their own free will, the child born in the U.S. is considered a U.S. citizen.
This interpretation of the subject to the jurisdiction part of the citizenship clause is hotly debated. It grants automatic U.S. citizenship to children who are born in the U.S. to parents who are citizens of another country. The loophole effectively allows illegal immigrants to have children in the country who automatically become citizens, making it much more complicated to deport families with mixed legal status. Opponents of this interpretation argue that the illegal parents are no more subject to the jurisdiction of the U.S. than the diplomat, since the U.S. would deport them back to their own country rather than exert legal jurisdiction over them, and the children should have the same status as the parents despite their birth on U.S. soil.
All the things you say are true, but deliberately dodge the point. The point is that the 14th amendment "jurisdiction" does not mean the same thing as criminal law "jurisdiction." If it did, Indians would be citizens, because they were most certainly subject to criminal law jurisdiction.
But we know for a fact Indians were not citizens. Therefore Criminal Law Jurisdiction is not the meaning of the term "Jurisdiction" as referred to in the 14th amendment.
I have a piece of paper. Can I just use your head for the brick? It's about as dense and immutable to thought and reason as hardened clay.
I know this is frustrating for you.
*You try to claim I misstate facts, but when pressed you can't identify and substantiate a single one on which I've erred.
*You try to claim I ignore your arguments, but when pressed you can't identify and substantiate a single one I've ignored;
*You try to claim I cite things that are "fantasy," but when pressed you can't identify a single point that isn't grounded in fact, argument, and evidence.
And this is after two years of periodic dialogue on these topics.
By contrast, I can list off the top of my head and document a whole host of your screw-ups and facts and arguments you've ignored.
It must be so frustrating; we can all see that impotent rage seeping out of you.
Aww, you're not going to put up the totally irrelevant copy of the 19th century NY citizenship statute? I'm so disappointed.
And you're not going to try to answer why you think that legislation matters one bit when the 39th Congress and the SCOTUS both cite to Lynch? Here I'm not the least surprised.
I think Horace Gray's opinion is very well documented and reasoned. Any contrary ruling would have been against the weight of authorities and Congressional testimony.
His opinion, for reasons I've given, covers the case of domiciled aliens (legal or illegal). Less clear is "anchor babies,' for which I think some room for not applying that case exists.
But thanks for a polite conversation.
No problem. And the same. A polite and irenic tone warrants the same.
You really should keep up. There is another thread going on regarding this subject. Jump in, show other people how stupid you are.
His father was NOT an immigrant to the United States. 
CORRECTION: Barack Obama, the first 
Indians ARE citizens.
According to the Dred Scott decision, blacks, whether free or enslaved, could not be citizens and had never been citizens. Were blacks “under the jurisdiction” of the United States prior to 1868?
We are talking at cross purposes. You are discussing citizenship and I am discussing non-citizens being under the jurisdiction of the United States, meaning subject to our laws.
If the constitution was a document of a kingdom, it would not say jurisdiction. It would say “subject of sovereign.” That is a better way to think of it.
A person who is a citizen of another country is treated under our laws, but ther loyalty lies with their “sovereign.”
Using the examples of the immigrants of the old west, it was the judgement that they came here with the intent to immigrate, that they held no allegiance to the country they left, and subjected themselves to conscription at great peril.
This does not fit the situation of a pregnant immigrant who rushes across the border to give birth in a border town.
I’m through about 40 minutes. Very good. Thanks for the link.
Seriously? You are seriously going to pretend the point is beyond your grasp?
Why do you play these games? You know very well that after the 14th amendment was passed, Indians were not citizens. As that is the time period we have been discussing, your point that Indians are now citizens is a deliberate effort to dodge the point.
More so than Itinerant foreigners. You aren't helping your claim with this line of reasoning.
We are talking at cross purposes. You are discussing citizenship and I am discussing non-citizens being under the jurisdiction of the United States, meaning subject to our laws.
And you have given us another example of people being born in the United States, but who were not citizens. How is that supposed to help your argument?
Oh, It's another distraction from the salient point; That being subject to our laws does not mean the same thing as "jurisdiction" in the meaning of the 14th amendment.
Yes, talking about something that has nothing to do with the main fallacy of your argument helps you, because it gets people off into the weeds rather than focusing on a fact that contradicts your assertions.
Agreed. It was never intended to apply to people who had not interest in making this nation their home.
This does not fit the situation of a pregnant immigrant who rushes across the border to give birth in a border town.
Exactly right. Nor does it fit the situation of someone who takes a vacation in this country in order to make a citizen of their newly born child.
Do you know of a judicial ruling or an act of Congress that separates “subject to the jurisdiction of” from the law?
On the other side of the issue is: Plyler v. Doe
457 U.S. 202
Argued: December 1, 1981
Decided: June 15, 1982
Opinion, Brennan
Concurrence, Marshall
Concurrence, Blackmun
Concurrence, Powell
Dissent, Burger
Syllabus
Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.
https://www.law.cornell.edu/supremecourt/text/457/202
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.