Posted on 02/17/2004 7:39:20 PM PST by CIBvet
So prior to 1924 when Congress recognized American Indians as being included in the 14th Amendment what would have been the case if a woman who was a resident of a tribe went to a city hospital to give birth? Even though the hospital would have been within the boundaries of the US automatic citizenship was denied to her kid because she was not technically a citizen of the US. That's my understanding of how the law worked.
The same can be said of illegal aliens... they are not residents of this country and can be excluded unless Congress, as they did with American Indians chooses to include them.
Our rights are inalienable, God-given, and a component of our humanity. People possess the exact same rights whether they were born in America or Saudi Arabia. Whether the country oppresses these rights, or allows the free exercise of them, matters not - the individual, every individual in fact - still has them.
The Constitution does not grant us rights; it merely enumerates the ones we already possess by virtue of our humanity. A person cannot "receive" rights from the government or have them "taken away." The government can only prevent their exercise under certain circumstances.
This is very different from the "entitlement" programs, social "perks" and "programs," and other benefits associated with being an American citizen. However, these are NOT rights and ARE subject to withholding for non-citizens.
I wish, sometimes, that folks would be clearer on this. It would make these debates a lot easier.
Just my two cents.
The fact is there were exceptions to the 14th Amendment, even when those kids were born in a city hospital on US soil. Children of illegal aliens are granted automatic citizenship not because of any court or legislative mandate, but out of tradition and only that.
Not quite. See post #5.
Not at all. It's very simple. According to the Constitution they are not citizens. When their parents are naturalized so are their minor children. If the children reach the age of majority before that time and qualify for naturalization by fighting for America or other appropriate means, I see no reason why Congress would not pass laws defining and securing such means. That is how it was intended and should be.
Your definition is circular. Your statement reduces to "you're a citizen if you've agreed to be a citizen."
The 14th Ammendment is does not establish a protocol for determining, moment by moment, whether or not someone is a citizen. One does not become a citizen by virtue of coming under US jurisdiction, and then lose citizenship upon exiting--perhaps several times in an afternoon, if one lives very near a national border. From the language, the context of the times, and the preceding logic, it is clear that the question of jurisdiction clearly was meant to be of import at precisely one moment, and only at that moment: the moment of birth.
And the meaning of jurisdiction is also perfectly clear. It's dictionary definition:
The Supreme Court ruled in 1884 against an American Indian named John Elk, who despite being born in Nebraska territory and outside his tribe was not considered a citizen.
The majority opinion of the Court read:
The evident meaning of [the jurisdiction phrase] is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. Indians born within the territorial limits of the United States … although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof’ within the meaning of the [Citizenship Clause], than the children of subjects of any foreign government born within the domain of that government…
That Court's decision has never been overturned and explained why in 1924 Congress provided legislative relief to American Indians. The Court ruled btw children of illegal aliens are not citizens of this country.
And what of the children of illegal aliens, born in this country, who swear an oath of citizenship? Does swearing that oath, in Spanish, in front of their parish priest, make them citizens? If not, then you must admit that it is circular reasoning to require that a person must be a citizen (i.e., "owe direct and immediate allegiance" to the US) in order to become a citizen.
To "owe direct and immediate allegiance" to a country, is to be a citizen of that country. To argue, as the majority SC opinion that you cite does, that John Elk is not a citizen because he does not "owe direct and immediate allegiance" to the US, is to circularly argue that Mr. Elk is not a citizen because he is not a citizen.
But the real acid test is this: the 14th Ammendment's primary purpose, the fundamental reason it was adopted, was to make citizens out of those who had been slaves, who had not legally been citizens before the adoption of the Ammendment. Which interpretation of the Ammendment has the desired effect, and which does not?
If we interpret the Ammendment to mean that only the children of citizens become citizens, then the Ammendment cannot have the intended effect, because the slaves were not the children of citizens. This shows the interpretation you prefer, and which the Supreme Court long ago sanctioned, to be seriously at odds with the original intent of those who wrote and adopted the 14th Ammendment.
That is very true, which is why the Court in 1884 ruled the status of the parents of a child born within the territory of the United States determines whether or not the child is eligible for U.S. citizenship. It is their allegiance to the country that matters, not their kid's.
But the real acid test is this: the 14th Ammendment's primary purpose, the fundamental reason it was adopted, was to make citizens out of those who had been slaves, who had not legally been citizens before the adoption of the Ammendment.
Absolutely, that was what the 14th Amendment's original intent was, to give legal status to the former slaves and their offspring. Foreigners were not part of the deal, the framers of the Amendment said as much and the Court of 1884, which has yet to be overturned correctly interpreted it.
If we interpret the Ammendment to mean that only the children of citizens become citizens, then the Ammendment cannot have the intended effect, because the slaves were not the children of citizens.
Not really because with the ratification of the 14th Amendment former slaves were granted citizenship, which means their kids would fall under the automatic citizenship clause. Legal immigrants who swear an oath of allegiance to the country and become citizens are also included. The Supreme Court ruled that way in United States v Wong Kim Ark of 1898 and it still stands to this day.
That's absolutely not correct. Wong's parents specifically did not owe the US allegiance, but were here temporarily. At the time, Chinese immigrants were forbidden from ever applying for citizenship, under the Chinese Exclusion Act. The Wong decision was based not on the allegiance of the parents but the simple fact that they were resident, not diplomats, not "Indians not subject to taxation," and not part of an invading army.
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. (He may still lose his case, but it will be due to the government's argument, not FILE's.) And there's no chance at all SCOTUS will overturn Wong.
The very best you can hope for is that Rehnquist can steer the majority away from the issue of illegal aliens altogether. At worst, Wong will be confirmed and extended to cover illegal aliens. Anyone who thinks a majority of this Court is eager to revoke the citizsenship of a million Hispanic children is a fool.
Elk wasn't a citizen because he was born not on US land but on land belonging to a tribe not subject to taxation and thus not under the jurisdiction of the US. Elk could no more claim citizenship than the child of a diplomat or a child born in a foreign nation could, and the majority in Elk v. Wilkins stated it exactly that way. If anything, Elk v. Wilkins can be twisted to support birthright citizenship: Unlike foreign diplomats and Elk's Indian tribe, illegal aliens are subject to taxation and to the rule of US law.
How does the language of the 14th Ammendment bestow citizenship upon the former slaves? It nowhere says "all those who used to be slaves are hereby granted citizenship." All it says is the following:
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 interpretation of those words that does not obviously bestow citizenship on the former slaves can possibly be valid. The interpretation that requires that only the children of citizens become automatic citizens by birth fails to do that, and is therefore provably incorrect.
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