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.
>> 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. <<
No, the LAND they are ON is subject to its jurisdiction, so therefore are the CRIMES they commit ON that land.
Please read the article in its entirety before posting. I explain this in considerable depth:
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.
Good point.
Mind you, the Senate offices would approve the transcription.
Not a good point insofar as it relates to the meaning of Howard's statement. Seriously, do you think after the pages and pages of transcriptions were typeset, someone went and checked that every comma was in its proper place?
On the opening post you truncated his words in a significant way:
"This will not of course include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of person."
"Foreigners, aliens" is repetitive; they mean the same things. The repetition is rhetorical. "Who belong to the families of ambassadors" qualifies "foreigner (aliens)." Is every foreigner excluded? No. Only "foreigners who belong to the families of ambassadors." Howard is pointing how how the Amendment is declaratory of existing law, and "existing law" (the common law provided for this exception).
"But will include every other class of persons" can hardly be reduced to meaning "only citizens." Only a very narrow class of foreigners is excluded (ambassadors); "every other class of person" is included.
At first blush. United States v Wong Kim seems to establish that all children born on US soil, even of aliens, are granted citizenship.
It's hardly just first blush: that point is hammered home every way and Sunday throughout the 50 plus page opinion.
Now, illegal aliens may not be an occupying army, and as Christians we would pause before labeling them enemies, but the point is that their loyalty remains to their homeland, not to the United States, as they have neither renounced their prior citizenship, nor taken any action towards aquiring U.S. citizenship,
This point fails both on fact and law. The argument can be made that an illegal alien desperate fleeing persecution or poverty in his/her home country has little allegiance (in the sense of fealty) to that country. Whereas, the legal alien here on an extended work visa or green card may well intend to return home to his/her home country (to which the person retains permanent allegiance.
In any event, consider this portion of the WKA opinion:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides[.}
The legal/illegal distinction simply doesn't bear on the question of jurisdiction. Both are subject to U.S. jurisdiction (save for ambassadors). One can't read "jurisdiction" to mean one thing when talking about legal aliens and then claim it means something else when talking about illegals.
Nor would it seem transience is a meaningful distinction, given the language above explicitly saying children born of aliens present here but temporarily are still citizens.
I get the point that illegality and anchor babies are abusive. But the answer is Amendment.
look it up.
in order to convey citizenship from Dec. 24, 1952 and prior to Nov. 14, 1986:
“Citizen parent physically present in U.S. or possession 10 year prior to child’s birth, five of which after age 14.”
http://photos.state.gov/libraries/unitedkingdom/164203/cons-acs/transmission_tables.pdf
being married to one is irrelevant.
just the facts
Oh, please, that's a strained reading of the language (to put it politely):
"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." The subject of the sentence is "persons." And those persons are said to be "born or naturalized" AND "subject to (U.S.) jurisdiction. "Subject to" refers back to "persons." There is no mention or hint of "land" being in view here.
If that sounds too abstract, let’s look at simple examples
The passage from the WKA opinion I quoted in my subsequent post renders all your speculation here moot.
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.
This statement is flat-out wrong. Are you suggesting that the U.S. can exercise jurisdiction over an alien (arrest, prosecute, apply all other laws) ONLY IF that country of that person's nationality has bestowed that jurisdiction on the U.S.??? Here I'm moving from "strained" to "ridiculous."
Change the title to “Foreign Nationals” instead of Aliens, and EVERYONE will understand.
A Foreign National by definition is NOT UNDER the Jurisdiction of the United States.
Did you fail 3rd Grade reading??
I'm going to modify this slightly. The opinion speaks of the children of persons "domiciled" in the U.S. That term may convey a stronger sense of residency beyond fleeting transience. But then the opinion muddies the water with the "but local and temporary" language. (It's all dicta on this point, really, given that the case didn't involve a child of transient parents.)
So there's a stronger argument to be made potentially against application of WKA to "birth tourism."
The proof that he is wrong is obvious when one considers the status of Indians as practiced by the authorities after the 14th amendment.
Indians did not get automatic citizenship because they were not regarded as "Subject to the Jurisdiction thereof."
Indians were exempt from the provisions of the 14th amendment, though they were, and continuously had been born within the borders.
Indians acquired birth citizenship by the passage of the Indian Citizenship act of 1924, though it is difficult to grasp how congress could change the meaning of an amendment through a legislative act.
Those Mexican, Central American, and South American illegal immigrants coming into the nation would mostly have been regarded as "Indians" under the 1868 understanding of the 14th amendment. If the Indian Citizenship act were repealed, there would be instant legal grounds to deny their children citizenship on that basis alone.
If the US will not grant citizenship to Indians born to tribes within it's borders, why would they grant citizenship to Indians from tribes without it's borders?
They wouldn't. The thought wouldn't have even occurred to them.
But the question remains. If Indians are excluded because they are not "subject to the jurisdiction thereof", then how can anyone argue that Foreign citizens somehow are more subject to our jurisdiction than are Indians?
We hung Indians too. We threw Indians in Jail also, yet we deliberately and explicitly did not make their children citizens.
Back to you Jack@$$.
Ridiculous is your normal state of being.
The history of Law regarding citizenship for children born to Indians is that they were not citizens, and this is pretty much acknowledged by everyone who is worth the trouble to consult.
We "arrested, prosecuted, and applied all other laws" to Indians. Consider your argument blown to bits.
Oops!
September 25, 2014:
A small number of undocumented immigrants in the U.S. will have an opportunity to join the military for the first time in decades under a new Department of Defense policy unveiled Thursday.
The new rules will expand an existing program allowing recruiters to target foreign nationals with high-demand skills, mostly rare foreign language expertise or specialized health care training.
For the first time, the program — known as Military Accessions in the National Interest, or MAVNI — will be open to immigrants without a proper visa if they came to the U.S. with their parents before age 16. More specifically, they must be approved under a 2012 Obama administration policy known as Deferred Action for Child Arrivals, or DACA.
Why are there so many foreign nationals who were arrested, tried and convicted in the U.S. criminal justice system and who currently reside in U.S. jails and prisons?
If we can arrest you, try you, convict you and incarcerate you, you are most definitely “subject to the jurisdiction of the United States and the state wherein you reside.”
“A new report released by the U.S. Government Accountability Office (GAO) has confirmed some rather unsurprising suspicions—that the majority of foreign prisoners in the U.S. are from Mexico. Of the 55,000 foreign nationals currently imprisoned in U.S. detention facilities, approximately 38,500 of them are Mexican nationals. Of those imprisoned Mexican nationals, 65 percent of them are serving time for illegal immigration offenses, with the second most common offence being drug related crimes. The report shows that foreign nationals make up 25 percent of the total prison population in America and that in federal prisons; the number of foreigners in U.S. prisons has risen 7 percent since 2005. However, more surprisingly, the number of foreigners in local and state prisons has risen 35 percent during the same time period.”
https://www.usimmigration.com/foreign-national-prison.html
Click the keyword Aliens to see more illegal alien, border security, and other related articles.
A criminal act is wholly incompatible within the structure of the 14th amendment and you should know that, People like you amaze me at how you will distort and or ignore key words in a sentence in order to justify your position that lacks reason and logic. A foreign National can be DEPORTED! a US Citizen CANNOT. A US Citizen can be TRIED FOR TREASON a Foreign National CANNOT. GOT IT.
We learned this in the 60’s in the 2nd GRADE, where were you?
Here’s the law of the land: 31 CFR 515.329 - Person subject to the jurisdiction of the United States.
§ 515.329 Person subject to the jurisdiction of the United States.
The term person subject to the jurisdiction of the United States includes:
(a) Any individual, wherever located, who is a citizen or resident of the United States;
(b) Any person within the United States as defined in § 515.330;
(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.]
[50 FR 27437, July 3, 1985, as amended at 68 FR 14145, Mar. 24, 2003]
https://www.law.cornell.edu/cfr/text/31/515.329
Don’t like the criminal law example? O.K.
How about the 1986 Immigration Reform and Border Control Act? With the stroke of his pen President Reagan made 2.7 million illegal aliens Permanent Resident Aliens. If all persons in this country who don’t have Diplomatic Immunity or who aren’t members of a foreign invading military aren’t “under the jurisdiction of...” how could illegals be transformed into legals BY LAW.
A foreign national can be deported precisely because foreign nationals ARE subject to the jurisdiction of U.S. Immigration Law.
Oh, and by the way, naturalized U.S. citizens can be and have been denaturalized and deported. Ask any of the former Nazis who got U.S. citizenship and then were repatriated to Germany or other nations.
https://en.m.wikipedia.org/wiki/List_of_denaturalized_former_citizens_of_the_United_States
If you were actually responding to his point, the word "conscripted" or something verbiage equivalent, would have to be included in your rebuttal.
So how about you respond to the Indian Citizenship thing? We hung em, we jailed em, and we fined em, but they weren't citizens.
I take this to mean that subject to our laws does not mean the same thing as "subject to the jurisdiction thereof" in the context of the 14th amendment.
Sounds like a clever dodge around the rules for your side, but the Indian thing blows it completely out of the water. The fact that Indians were prosecuted and incarcerated while yet remaining non citizens though born here, demonstrates that your meaning of the term is not the one used in the 14th amendment.
Otherwise Indians would have been citizens prior to 1924.
If you go to France (and aren't a French citizen), you are subject to their laws, but you are not subject to their jurisdiction. You can't be pressed into their armed services if there was a draft and you can't (legally) vote in their elections.
To be a U.S. "citizen", you must be born here AND subject to our jurisdiction (not just our laws as anyone visiting would be).
The amendment suggests that you have to already be a legal resident of the state wherein they reside in order to be a citizen. What should follow is that if an illegal has a child born in the US and is subject to the rules,laws and dictates of her country so would her child.
The proof that I am right is the undeniable fact that the United States today (as always) has exercised jurisdiction over foreign nationals living within the United States. Yes, in fact, the U.S. does arrest, prosecute and jail foreign nations, both legal and illegal.
Now, I can't tell if you're actually trying to deny this (a foolish proposition, though you are prone to those) or you're just trying to do another of your dodge-and-weave evasions by talking instead of 19th century Indians. "Is he daft? Or is he just evasive?" That's the question everyone has to answer when dealing with you.
No, DumbDumb, despite your early eagerness and catty comments that you've come up with some resounding answer to my earlier post, the fact remains is that you raised this point and I answered to it 6 months ago!!
This is what's so frustrating with you. When you leave one of your little piles of poo on the Board, I take the time to rub your nose in the correct answer; but like the over-eager puppy you are you don't get the lesson and soil the carpet again. Like now.
It's worthy laying out what I schooled you on back in February. This portion of the story I'll refer to as "Sen. Trumbull and the Indians."
******
"You just block out and plow aside anything inconvenient to your argument. Trumbull repeatedly makes the point that children born here of non-naturalized immigrant are citizens:
"I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. Is not the child born in this country of German parents a citizen?" Sen. Trumbull, Cong. Globe, 39th Cong., 1st Sess. 497 (1866).
"I am afraid that we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens."' Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)
"I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is." Sen. Trumbull, Cong. Globe, 39th Cong. 1st session. 600 (1866)
Trumbull's statement that children of ambassadors can't be made citizens is the exception to the general rule. There's a reason Trumbull speaks of ambassadors. Contrary to your deliberate misread, ambassadors aren't just some example of "foreign persons." Ambassadors and their children are well-recognized exceptions to the common law rule of birth-citizenship, even as to the children of aliens. Children of run-of-the-mill foreigners are citizens; children of ambassadors are not and cannot be made so. Trumbull is following the common law..
[DL quote of Trumbull] "Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign power or tribal authority.
Are you now clear that in saying "not subject to any foreign power" Trumbull doesn't mean those non-naturalized Germans giving birth here to citizen offspring? Or do I need to pound this into your head one more time?
The focus here (and the same with "subject to the jurisdiction thereof") ISN'T with children of European aliens. The "great case of Lynch v. Clarke" can be put to the entire House as exemplary of "existing law" with no one batting an eyelid. They all knew this much. It was the same common law rule which had long existed.
But in a jus soli world, Indians pose a unique problem. You don't get this point, and so keep seizing upon language which is primarily concerned with Indian tribes and casting that back onto European immigrants.
[DL]As it should turn out, Indians did NOT get that "birth citizenship" you are always going on about until 1924.
Right. Indians were carved out as an exception alongside the familiar common law exceptions of children of ambassadors and hostile invaders. I said on a prior post "When the common law was adapted in American a third case was presented: Indian tribes.") You act like children of Indians pose some problem to my view: they don't; as usual, I'm two steps ahead of you in the discussion. [Add: Make that two steps, plus 6 months, DumbDumb.]
*******************
But here's more from Trumbull which shows you for the historical illiterate you are:
"Then it was proposed to adopt the amendment as it now stands, that all person born in the United States not subject to any foreign power, excluding Indians not taxed, shall be citizens. What does that phrase 'excluding Indians not taxed' mean? . . . It is a constitutional term used by the men who made the Constitution itself to designate, what? To designate a class of persons who were not a part of our population. They are not counted in the census.
* * *
Whenever they are separated from their tribes, and come within the jurisdiction of the United States so as to be counted, they are citizens of the United States.” Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 572 (1866).
Sen. Trumbull highlights that the exclusion for Indians still fully within their tribal loyalties existed at the inception of the Constitution. The Civil Rights Act and 14th Amendment carry forward this same exclusion. But the exclusion of Indians does not mean foreigners from Europe, etc., were not under U.S. jurisdiction. They were. Trumbull makes that abundantly clear in his comment about children of German immigrants constituting a healthy part of Pennsylvania citizenship.
But the question remains. If Indians are excluded because they are not "subject to the jurisdiction thereof", then how can anyone argue that Foreign citizens somehow are more subject to our jurisdiction than are Indians?
Well, Duh, Sen. Trumbull made that very argument and explanation of the Civil Rights Act citizenship clause. And we know that "and subject to the jurisdiction thereof" in the 14th Amendment was simply the positively state reciprocal of the CRA's "and not subject to any foreign power."
And, of course, someone DID argue before the U.S. Supreme Court that foreigners (aliens) ARE more subject to U.S. jurisdiction than are Indians. And, guess what? That argument WON!!
"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42."
That excerpt is from a case you really ought to read and attempt to understand -- U.S. v. Wong Kim Ark. Really, truly, you need to read it at some point.
So, in summary, I made all these points to you back in February. And your answer? Zippo. Nada. Silence. Your usual "I don't have any answer, so I'll just stick my fingers in my ears and go 'nah, nah, nah . . I'm not listening. . . '" Maybe with 6 months to think about it, you'll muster some half-*ssed reply. But I doubt it.
Now, show everyone what an intellectually lazy fool and incompetent you are and proclaim this is too long for you to understand.
All politicians have committed treason.
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