Posted on 02/17/2004 7:39:20 PM PST by CIBvet
In reading over the various quotes and comments on this thread, it appears to me that the most reasonable interpretation of that clause is that it was intended to specifically exclude persons born within the physical boundaries of the US but in areas not under its jurisdiction. For example, persons born within foreign embassies (which are considered extraterritorial and under the jurisdictions of other nations) and persons born within Indian tribal reservations (which were not considered within the formal jurisdiction of the US).
That would explain the 1868 quote by Senator Howard referring to "families of ambassadors or foreign ministers", and it would explain the Supreme Court's actions with regard to John Elk. It is not the only possible explanation, but it is certainly a plausible explanation -- one which remains consistent with the long-standing historical interpretation that any baby born in the US is automatically a citizen.
have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution".
The issue of granting children of illegal aliens automatic citizenship has never been addressed directly.
The bottom line is that SCOTUS isn't going to give you the answer you want. Wong makes the citizenship aspect Hamdi's case open-and-shut: Wong's parents were here every bit as temporarily as Hamdi's, so Hamdi is a US citizen.
Supreme Courts have overturned themselves many times. Plessy v Ferguson and Brown v Board of Education is one example. That's what the Hamdi case is about, that this Supreme Court interprets the 14th Amendment as it was written, which did not include temporary or illegal foreigners in the mix.
The Fourteenth Amendment was originally ratified to protect the freedman from the abrogation of his rights by the Southern states. Looking to protect the African American, the amendment made him a citizen and forced the federal government to be responsible for him. The Fourteenth Amendment prohibited the States from denying or abridging the fundamental rights of every citizen and required them to grant all persons equal protection and due process."
After the Civil War former slaves were made citizens, so their kids would fall under the automatic citizenship clause.
Even if this Court finds that children of illegal aliens are not protected by the 14th Amendment I do not believe most already born here will be booted out, they'll likely be grandfathered in somehow. But it will apply to future births. The US is only one of a handful of countries that grants such privileges, it's outdated and high time it was reformed.
But that was not the sense of the phrase in 1868. It meant that someone was to be regarded as a "subject" or "national" of a political entity - a kingdom or republic, what ever the situation. Therefore, that person would be "subject to the jurisdiction" - of their specific sovereign.
It didn't mean that they could not be tried for a crime in the United States - but it could mean that their status in such a trial might be different from someone "subject to the jurisdiction" of the United States. Note that this operates even today, where a certain group of people are now being denied the right of jury trial, based on their lack of nationality, and status as "enemy combatants" or "terrorists".
So the phrase "not loyal to" or "not subjects of" could be construed as being congruent with the notion of not being "subject to the jurisdiction of". The United States was, in 1868, unique in that the sovereign was the people themselves, with the state being their elected surrogate. Perhaps for that reason, and an aversion to using the old monarchial term of "subject", the Radical Republicans who wrote the 14th used the more obtuse phrasing.
But, as Carry_Okie points out with the Slaughterhouse case, that was what the judges of the time easily recognized as being the intent.
The actual outcome of FILE's argument may be less obvious. In the 1898 Wong Kim Ark case, the court referred to the concept of "Sojourners" to legitimize the citizenship of Ark, who was born in San Francisco to Chinese parents who were not citizens, and who subsequently left the U.S. to return to China. Even though the parents were admitted to be "subjects of the Emperor of China", i.e., subject to his jurisdiction, they were considered to be Sojourners temporarily subjects of the American state. This concept is based on English Common Law, which essentially made anyone in England subjects of the King. Kings tend to like the concept that everyone is beholden to them, so even if you were a foreigner in Merrye Olde England, he owned you. Your offspring during such sojourns were also considered the King's subjects.
Based on this interpretation, I think Hamdi might have an argument for his citizenship. But I don't accept Ark as legitimate; I think it was bad law then, and worse law now.
We'll see what the court thinks. Considering the recent decisions of this 'court', I'm not optimistic. In fact, it may be an opportunity for a really BAD precedent to be set.
Reaganwuzthebest is correct. See my previous post for some similar commentary with regard to the difference between geographic jurisdiction and nationality/allegiance.
For me its easy. The child was not a resident of the US which is expressly required by the last part of the sentence in the constitution.
However you ignore the issue of being a resident at the time of birth. By example, lets say a woman living in NH gives birth in VT and returns to NH. Was the child ever a citizen of VT with rights to their health care programs ? Answer:No. The child was never a resident of VT at the time of birth.
Questions regarding residence are common in tax law and the answers are not black and white. They lend themselves to being decided by the facts and circumstance in each case.
Lev19:33 " 'When an alien lives with you in your land, do not mistreat him. 34 The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. I am the LORD your God.
Just about everyone.
Go to the Code of Federal Regulations and look up the definition of United States. The majority of the time, it's defined as Washington D.C., American Samoa, the Virgin Islands and Alaska and Hawaii before they became states.
Article 1, Section 8, Clause 17
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--
Anything inside that geographic limitation and with the exception of property OWNED by the Federal government in other states is all the 'United States' consists of. Everything else is just a 'State' and should be populated with AMERICAN NATIONALS not 'United States Citizens'.
Legal immigrants in the process of acquiring citizenship clearly fall under the "subject to the jurisdiction thereof" clause (they are in the country under proper legal authorization and are answerable to American law). Thus, children born to such persons on US soil are immediately US citizens.
Of course, the problem isn't with legal immigrants.
I concur. I think the only way to prevent the misuse of the 14th would be to repeal it in toto or at least in part.
Citizenship shold depend upon blood--by which I mean: if one of your parents is a citizen, you are a citizen, regardless of locale; if neither is, then neither are you, regardless of locale. This interpretation or modification of the 14th has about as much chance of being implimented as porcine aviation.
--Boris
Exactly. Simply being born on US soil did not originally mean automatic citizenship if the parents came from a foreign country and were not residents. That is what Indian tribes are considered and what the Elk decision confirmed.
Congress properly remedied that for American Indians in 1924 which is their right under the jurisdiction clause to do.
Illegal aliens are claiming they are residents and are paying taxes, therefore they qualify. But that is a stretch since at best it's only sales tax they pay, and quite a few of them are coming across the border solely for the purpose of giving birth.
Granting automatic citizenship in those cases is a violation of the spirit of the 14th Amendment and not how it was intended to be applied.
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