Skip to comments.Are baby's born to illegals US Citizens?
Posted on 02/01/2014 8:34:39 AM PST by Yooperman
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The word "thereof" meaning from that cause or origin of foreign country.
Good luck with any changes to the law, as right now you have Republican leaders trying to make the illegals legal, their kids born in Mexico are "dreamers". It will take a conservative anti-illegal President and a lot of effort to bring about the political will to enforce existing law and then begin expelling the invaders. We need to de-condition the people to being Mexicanized.
I don't like the legal concept of citizenship by place of birth.
U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) discusses, among other things, British common law that all persons born within the British realm, unless the child of a foreign minister, ambassador, or alien enemy during and within their hostile occupation of part of the King's dominion, are citizens of the King.
Wong Kim Ark is worth reading, even though I consider it bad policy.
In Wong Kim Ark, the Court says:
In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history of the law as previously existing.
Wong Kim Ark at 653-654.
The Court later says:
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
Wong Kim Ark at 657.
That's simplistic, and certainly not all Wong Kim Ark discusses, but those two paragraphs say a lot about the Supreme Court's view on U.S. citizenship of most babies born on U.S. soil.
I take not that Wong Kim Ark's parents were not illegal aliens, so that issue is not specifically discussed. However, the opinion does not say it is limited to children of legal resident aliens in the U.S.
As I said, I don't like the public policy.
Voila - there it is. You put your finger on the essence of the problem. When both major US political parties are for illegal immigrants "being legal" even though for different reasons, the US government will ignore laws.
Texas just executed a Mexican national. I'd say that's evidence that they are.
That's a very creative definition of that term, and one that I don't think would stand up in court. Otherwise Ted Cruz wouldn't be giving up his Canadian citizenship.
Of course they are.
Can they be detained?
Can they be brought in front of an Article III court?
Can they be forcibly removed?
Look, XIV is the worst drafted amendment except for XXII. But the language has to be changed to fix this.
Saying that people who can be arrested, tried, and removed are somehow "not subject to jurisdiction" is ridiculous.
Is there ANY reason you think the plural of “baby” is “baby’s?” This may come as a shock to you, but in English this SIMPLE PLURAL is spelled b-a-b-i-e-s. “Babies.” There. It’s not so hard. “Baby’s” is POSSESSIVE and not plural. The RULES are REALLY, REALLY, REALLY simple. FOR THE LOVE OF GOD, please bookmark this link.
And what I posted in #35 about the phrase "Subject to Jurisdiction Thereof" is accurately and correctly understood by two political professors Dr John Eastman and Dr. Edward Erler who testified before Congress, and likely much to the dismay of certain Congs who were in attendance.
So is "jurisdiction". And illegal aliens can be arrested, tried, and jailed if convicted.
All persons within the United States are obligated to obey the law, yet not all persons within the United States owe political allegiance to the United States.
Sen. Lyman Trumbull, Framer of the 14th Amendment said:
“The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘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.”
This admits that a person born in the United States might not be subject to the jurisdiction of the United States, they might owe allegiance to somebody else.
If birth within the United States was the sole requirement for citizenship there would be no jurisdiction proviso in the 14th Amendment.
Foreigners owe allegiance to their country as do their children.
Read post #35 for your answer.
Under current circumstances, yes. However, neither the 14th allows for it, nor did the creator of the 14th want it. The pure intent was that those subject to our laws (born of those here legally), would be citizens.
British common law made that distinction, and that distinction was discussed as dictum by the U.S. Supreme Court in Wong Kim Ark.
However, under British common law, allegiance to the monarch was also tied to protection by the monarch (protectio trahit subjectionem, et subjectio protectionem), and those who were considered not to have the allegiance-based jurisdiction for the purpose of passing British citizenship to a child born within the British empire were foreign ministers, ambassadors, or foreigners during the hostile occupation of any part of the territories of England.
There are foreigners in our nation who have kids all the time.
And those kids aren’t citizens.
The 14th Amendment dealt with freed slaves. It was never intended for anchor babies.
They are citizens, they shouldn’t be, but they are. It would need a constitutional ammendment to change it. I’m all for it, but it will never happen. It would be part of my program to curtail illegal immigration without spending a lot of money. Just remove every cent of government money from the pockets of illegal immigrants, and also children of illegal immigrants are also illegal immigrants. To survive in the United States an illegal immigrant would have to pay cash for everything, including hospitals. In this way they would leave their families home, they are the real burden to the rest of us. If illegal immigrants were just single young guys pushing lawn mowers, the financial burden on the tax payer would end.
No. The parents are intentionally committing a crime and scamming this country so none of their babies should be granted automatic citizenship.
That legislative history also makes it clear that many of the Fourteenth Amendment's prominent framers also believed the Fourteen Amendment provided that American Indians and their children could not be U.S. Citizens because the U.S. government dealt with them by treaty.
However, as the U.S. Supreme Court pointed out in Wong Kim Ark, British common law bestowing citizenship on the basis of place of birth (except in certain circumstances) was the law in the North American British colonies, and the law in the U.S. predating the Fourteenth Amendment.
The question, then, is whether the Fourteen Amendment was intended to remove citizenship rights that predated the Fourteenth Amendment.
True. Wong Kim Ark's parents were not illegal aliens.
Obviously a riyxh-ruort. The letters are shifted.
I don't like the policy.
I understand what the legislative history of the Fourteen Amendment is.
However, the U.S. Supreme Court has interpreted our Constitution and federal laws and regulations since it granted itself that power under Marbury.
Wong Kim Ark applies rather than the legislative history of the Fourteenth Amendment.
That ignores some of the other issues discussed in this thread, but is that simple enough?
It’s true that the writers of the 14th should have been more specific in that it referred to freed slaves and their descendants. I’m not sure why they weren’t, but, unfortunately it says what it says. I have pissed off liberals, who object to the language of the 2nd Amendment, and drug warriors. The Constitution and its amendments says what it says, and a court has apparently affirmed that the 14th means that babies born in the US, even if their mothers are here illegally, are citizens.
As we will not get a court to change that interpretation anytime soon, we’re left with the option of changing the wording via another amendment. It’s not a pleasant conclusion but it is the harsh reality that we face, especially if we make the claim that we believe in the Constitution, and the rule of law.
Are you saying that the womb of an illegal alien is the territory of a foreign country?
Look, you can’t use the liability for criminal actions committed in the United States as justification for non-related activities, like location of birth, as the meaning of “subject to the jurisdiction thereof”.
Location of birth alone is not an absolute in determining citizenship, otherwise there would not be the second requirement “. . . AND subject to the jurisdiction thereof”.
The legal implications of “ and subject to the jurisdiction thereof” will require future court rulings or legislative actions.
It is within the power of Congress to more accurately define the meaning of this clause as specified in the same 14th Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
There are US-born children who do NOT qualify for birthright citizenship, even if they subject to US criminal laws, such as foreign embassy staff persons, foreign military stationed in the USA, etc.
Congress could clear this up with simple legislation in accordance with Section 5’s powers. With the likes of Boehner and Cantor and Ryan, they won’t.
“They shouldnt be.
And if they are... the congress should have the power to strip them of their citizenship.”
Amendment 14, Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
“. . . were left with the option of changing the wording via another amendment.”
Congress can do it by legislation.
Amendment 14, Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The subject was set by the OP about "illegal mothers" and their offspring born in the US is that simple enough... and he seems to have posted and ran.
This is an error of fact. British common law was to varying degrees adopted in the colonies, although not all colonies. This is also true after those colonies became independent states.
When the states joined together as the United States neither government established by them, neither the Articles of Confederation nor the Constitution, incorporated British common law.
The impossibility of incorporating British common law into the Federal government is ably explained in this 1798 letter.
Gray makes two errors. The first is in believing British common law was uniform throughout the colonies. The second is stating that it continued in the United States afterwards.
British common law was not the law of the United States predating the Fourteenth Amendment. It never has been.
There are other problems with Ark.
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 jurisdiction clause is specifically stated to be political allegiance, not territorial bounds.
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.
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.
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.
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 have 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, (Swans 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 Gastons 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.
Grays cite of Manuel to justify use of English common law is dishonest.
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.
But Congress cannot change the wording of it, and no court would permit it to do so, not without another amendment. Only a dictator like Obama could do that.
They don’t have to change a word of it.
Section 5 gives them the power to define what “subject to the jurisdiction thereof” means.
They have already defined what it means with regard to certain foreign nationals and Indians.
I wish you were right. I wish congress could declare that an illegal alien’s sperm and womb are foreign territory, but we have to deal with the world as it is, not as we would like it to be. Furthermore, what do you think the chances are of Congress doing what you say they can do, and Obummer signing it? Almost as good as getting constitutional amendment.
Gray in his WKA opinion excepted below in a short paragraph dismisses the original intent of the 14th Amendment as not being relevant that he characterizes as only "debates" so he can gives himself carte blanche to say whatever he wants the 14th Amendment to be.
Gray - "Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words.
"Must be sought in the words" - "not admissible as evidence..."? Wuut? You kind'n me? The guy had an agenda like any activist judge we see today.
Gray did live up to his name as an obfuscater - being in a 'Gray area'. LoL.
I believe the SCOTUS should re-interpret the 14th ammendment. But not likely that they will.
But more importantly if we had secure borders and did not let millions of illegals in the country the 14th ammendment would not be such a big problem.
“Furthermore, what do you think the chances are of Congress doing what you say they can do, and Obummer signing it? Almost as good as getting constitutional amendment.”
If you presume Obama is to be in power forever, no chance.
But if there is a change in 2014/2016 to conservatives (not the current RINOs) in Congress and the White House, then it can happen.
And that change can happen if the Republicans were to make it a prime campaign issue in 2014/2016. Immigration was never allowed to be an issue for campaign debate from 2006 to now because the Republican establishment won’t bring it up. If they did, you would be surprised how well it would resonate with voters, especially the blue collar Reagan Democrats, who are most affected by the illegal alien invasion.
One thing is certain - pandering to Hispanics only results in FEWER of their votes going to Republicans. And the base gets so disgusted with pandering RINOs that they stay home, like 4 million did in 2012, and 5 million in 2008.
The Fourteen Amendment isn't the first, only, or last time a Federal Court has ignored legislative history, but post-Marbury, the Federal Court's interpretation is the interpretation, until it's overturned by a higher Federal Court or by additional legislation.
Here, the U.S. Supreme Court has spoken and Congress has taken no action to override the Supreme Court's interpretation.
Arguments about the legislative history of the Fourteenth Amendment are irrelevant at this point unless the issue of Fourteenth Amendment citizenship arises as the issue in question before another Federal Court, preferably the U.S. Supreme Court.
The original intent arguments certainly aren't going to change the minds of anyone in Congress.
Improper use of italics - 5 yards and replay down.
You might be a Liberal if spelling is more important than the question.
There is abundant Supreme Court authority on the issue. Lots of people here including me don't like it; it is possible that Congress could craft legislation around the "under the jurisdiction" clause denying citizenship that would stand up to Constitutional attack; but on the face of current authority, they are citizens.