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.
"Subject to the jurisdiction thereof" means to owe allegiance as a member of the society, not just subject to its laws while within its territory. This is what Senator Howard, who wrote the amendment, pointed out in the floor debate. Illegal immigrants legally are merely transient aliens owing no allegiance to the United States. Otherwise the words are superfluous and have no meaning at all.
The 14th amendment does not and never has granted citizenship to children of illegal immigrants. The proper remedy for the multiple abuses of the 14th would be to withdraw citizenship from those improperly awarded citizenship and to cease immediately the unlawful application of the 14th.
“The anchor baby scam was invented 30 years ago by a liberal zealot, Justice William Brennan, who slipped a footnote into a 1982 Supreme Court opinion announcing that the kids born to illegals on U.S. soil are citizens. Fox News is treating Brennan’s crayon scratchings on the Constitution as part of our precious national heritage.”
- Ann Coulter
Question is we have a lot of Anchor Babies who have turned 18. Are they “under the jurisdiction of”. Are they allowed to vote? Can they get clearances? Are they required to be naturalized? I favor doing whatever it takes to disallow future Anchor Babies, but I’m not as sure as others about the 14th. SCOTUS will make the final determination on the 14th. I guess that ruling will come when we try to deport an Anchor Baby.
I guess another way that courts could take up the case is by some enmity denying an Anchor Baby the right to vote.
Thanks EVERYONE!
If you had continued to read the Senate debate from which you quote, you would have seen that the question of birthright citizenship for children of noncitizen aliens (with a couple of exceptions noted) specifically came up, and a key supporter of the amendment specifically stated that it would, if adopted, make birthright citizenship for such children part of the Constitution.
Since there was no federal law restricting immigration when the 14th Amendment was adopted, there was no such thing as an “illegal immigrant.” A reasonable person should recognize that, as a consequence, the framers of the 14th Amendment could not have intended to exclude the children of illegal immigrants from birthright citizenship. If you think that’s a bad policy that ought to be changed, you should support changing the Constitution, not trampling the Constitution to get the policy result you favor.
I quote from the Senate transcript. Sen. Conness of California is speaking:
“The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate that same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage, whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal Civil Rights with other citizens.”
Zactly.
Anyone who is not a Citizen or permanent resident is a transient alien, at a minimum...
They cannot be conscripted into war and are therefor not under the jurisdiction of the United States, in that regard, otherwise they would be a full citizen.
Further, the United States cannot represent them in foreign affairs with Kings, Potentates, Ambassadors or even at the Embassy level, to petition for relief of any sort for a citizen.
That responsibility and purview would remain with their country of actual citizenship. Only their government could represent them...
It means your parents are transient aliens, not subject to the jurisdiction of the United States and cannot by Jus sanguinis.
Wish it weren’t so because I don’t believe the children have any choice in the matter, particularly when their parents make a conscious decision as to where their children will be born, out of certain expediencies.
>> If you had continued to read the Senate debate from which you quote, you would have seen that the question of birthright citizenship for children of noncitizen aliens (with a couple of exceptions noted) specifically came up, and a key supporter of the amendment specifically stated that it would, if adopted, make birthright citizenship for such children part of the Constitution. <<
An interesting rebuttal. Now for my counter-rebuttal:
>> Since there was no federal law restricting immigration when the 14th Amendment was adopted, there was no such thing as an “illegal immigrant.” <<
The “few exceptions” you mention are those in which it is evident that the resident does not owe allegiance to the United States (see post 14 about owing allegiances).
Read what Sen. Cowan went on to say:
“It is perfectly clear that a man born in a country has not heretofore entitled him to the right to exercise political power.”
Or Sen. Trumbull:
“It cannot be said that any Indian who owes allegiance, partial if you will, to any other govenrment, that he shall be “subject to the jurisdiction of the United States.””
The catch is in the added wording ‘and subject to the jurisdiction thereof’. I don’t believe the words and expressions are/can be separable or that such was ever intended to be the case. If the child (new or recent born) is intended by the parents to be subject to the jurisdiction of the US it seems to me that the parents are responsible for making such legal presentation on US soil instead of hustling the child back across the border to the intended country of official citizenship.
We have for decades and for generations, followed the present interpretation, namely children of illegal aliens born on US soil are US citizens. Like it or not.
Cruz himself has stated that a law is necessary to change this.
Plus there is the legal precedent, stemming from this long-standing interpretation.
Finally the concept whereby our Constitution bars “ex-post-facto” laws, so such changed law would only operate going forward.
The exceptions were very specific: children of diplomats, children of lawful enemy combatants, and Indians. What the first two had in common was that they couldn’t be prosecuted for any crimes they had committed under federal law. This may or may not have been true of Indians subject to tribal jurisdiction. Because of doubts regarding Indians’ jurisdictional status, they were excluded from birthright citizenship at the time the 14th Amendment was adopted.
Illegal aliens can and are tried in federal court, and sometimes put in federal prison. They obviously are “subject to the jurisdiction” of the U.S. in that sense, which is the relevant one.
Of course, Sen. Cowan ultimately voted against the 14th Amendment. He understood it would constitutionally enshrine birthright citizenship for the children of the vast majority of aliens living in the U.S. if they were born in the U.S., and he was opposed to that policy. That’s why he voted no. But his side lost. The amendment passed.
Of course, Sen. Cowan ultimately voted against the 14th Amendment. He understood it would constitutionally enshrine birthright citizenship for the children of the vast majority of aliens living in the U.S. if they were born in the U.S., and he was opposed to that policy. That’s why he voted no. But his side lost. The amendment passed.
United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a person who:
is born in the United States;
of parents who, at the time of his birth, are subjects of a foreign power;
whose parents have a permanent domicile and residence in the United States;
whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject;
becomes, at the time of his birth, a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution.
if being born on the land does not award citizenship and it must come from a parent then ...
0bama is not a citizen
his mother was 18 when she gave birth, too young to convey citizenship. and his father was never a citizen.
opps
when do we start swearing in biden?
“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.”
“and subject to the jurisdiction thereof” as opposed to those who are by birthright, citizens of countries other than the United States and are NOT subject to the jurisdiction thereof the United States. This speaks of those who ARE under U.S. jurisdiction as opposed to those who are under jurisdiction by birthright and are NOT U.S. citizens.
>> his mother was 18 when she gave birth, too young to convey citizenship. <<
Neither common law nor natural law, as discussed by Sen. Howard’s speech introducing the 14th amendment and innumerable 19th-century court cases would in any way require a mother to be 18, or any age, to convey citizenship. <<
>> and his father was never a citizen <<
But he was married to one, making it evident that he intended, at the time, to be an immigrant, not a wayfaring traveler.
Now, had his mother stayed in Indonesia, you might have a tenuous argument that she surrendered her citizenship, and through her, he did. But this argument would be very tenuous indeed, because it is in fact at the core of the very first Supreme-Court decision related to immigration, wherein the daughter of a Brit who returned to Britain was ruled to be a citizen by birth.
Your best bet would be to say he renounced his citizenship, and that the fact that he claimed to be an immigrant confirms that he thought of himself as having renounced it.
Once you grant that, the argument that "subject to its jurisdiction" does not apply to aliens is nonsensical. Of course they are subject to U.S. jurisdiction. Aliens (resident or illegal) who commit crimes can be prosecuted and incarcerated as with any U.S. citizen. The exception to this is foreign diplomats, for whom "diplomatic immunity" takes them outside of U.S. jurisdiction. This is consistent with the common law rule that said all children born within the jurisdiction of the sovereign -- even to alien parents -- were "natural born" subjects (or citizens, as the case may be).
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