The UnConstitutionality of Citizenship by Birth to Non-Americans

Immigration News ^ | February 1, 2005 | P.A. Madison

[ut1992]

Wow, I was unaware that this is possible; i.e. American & German citizenship for U.S. military dependents.

My brother Mike was also born on base in West Germany while we were stationed there. There was never a question of which country's citizenship he held. My understanding was that the Status Forces Agreement with Germany stipulates that a child born within marriage to a US service member is automatically a U.S. citizen, and is ineligible for German citizenship as German citizenship is was/still (as I understand it) based on German bloodline, not place of birth. I thought the U.S. reasoning behind this was that the child is born on sovereign U.S. soil, thus, is still eligible to become president.

Maybe my understanding isn't complete.

[middie]

legislative intent is non sequitur when the statute or const'al article under consideration is clear and unambiguious. The Const. is replete with ambiguious terms (due process, unreasonable search, etc) but the one you're worked up about is without any ambiguity, it says something clear and simple and therefore means precisely what it says. All of the fervent teeth-nashing and breast-beating will not change the plain meaning of the words used in the article.

[moehoward]

I'm reading you loud and clear now. Nevermind.

[traviskicks]

"I can just imagine a young Tesla trying to immigrate here today.. the professional associations and protectionists would try to stop him."
---

I fear they already have...:

http://www.freerepublic.com/focus/news/1237232/posts?q=1&&page=190#190

[ran15]

I think many have different views of what they want for America.

I see America as a commercial state, where even a poor person can become rich. And where people from around the world who believe in liberty can come. The only limitations I would seek for immigration are to make sure it isn't enough to destabilize the nation. So many more then we are letting in legally now.

I also see America as revolutionary in nature. Where we don't stop new technologies.. even if they would mean millions losing their jobs. So scientists from around the world, who get held down by their nation's bureaucracies, special interests, eco-nazis or whoever.. can come to America and pursue their dreams.

[FreedomCalls]

And the Supreme Court has agreed to hear the case of Jose Ernesto Medellin wherein local authorities must notify the Mexican government when they are charging one of its citizens with a crime so that the suspect will have access to the legal resources provided by that government's consulate or embassy. That makes them not "subject to the full jurisdiction" of the United States as this gives them rights not available to United States citizens does it not?

[FreedomCalls]

the one you're worked up about is without any ambiguity, it says something clear and simple and therefore means precisely what it says.

There's plenty of dispute about what "subject to the jurisdiction thereof" exactly means. Does it mean that arresting authorities in the United States who arrest illegals for crimes committed here DO NOT have to notify the Mexican consulate or embassy of their arrest by virtue of their being "subject to the jurisdiction" of the United States and therefore not subject to any Mexican jurisdiction? Teh government of Mexico is claiming that they must be notified as the arrestees are still Mexican citizens and subject to Mexican jurisdiction. The case of Jose Ernesto Medellin is on the Supreme Court's docket for this term. We'll see.

[zook]

When I was in 2nd grade we had one of those workbook exercises where you had to match a question with an answer by drawing a line across two columns. I knew the answer to question 5 was C, but my line pointed somewhere between C and D. My teacher marked it wrong. "But I meant to draw it to C!" I said. "But you didn't!" she replied.

No. Given the manifestly simple language of the 14th Amendment, its authors' intent means nothing.

[traviskicks]

I see things the same way you do.

In fact, we see things similar to how Ronald Reagan saw them. From his fairwell Address:

The past few days when I've been at that window upstairs, I've thought a bit of the `shining city upon a hill.' The phrase comes from John Winthrop, who wrote it to describe the America he imagined. What he imagined was important because he was an early Pilgrim, an early freedom man. He journeyed here on what today we'd call a little wooden boat; and like the other Pilgrims, he was looking for a home that would be free. I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.



"And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here."

[MikefromOhio]

well I was told I was eligible for German citizenship. There wasnt ever any doubt for me either...

you are correct about the Presidency thing though. I am eligible, but not even close to willing.

[elbucko]

Given the manifestly simple language of the 14th Amendment, its authors' intent means nothing.

Therefore, by your logic, the intent of your reply is irrelevant.

[elbucko]

..but it's not relevant to your argument that immigrants are unfairly increasing the price of housing.

I beg to differ. In the real world, not that of the economic theoretical, immigration is increasing the price, cost and shortage of entry level rental dwellings. At the same time, urban planners have become reluctant to issue permits to build apartments because the cities do not want the density that comes with immigrant housing. As the price to rent an apartment goes up - and it does with illegal immigration - so does the cost to buy a single family dwelling or condo.

[Hoplite]

Mr. Medellin is as much under our jurisdiction as, say, a juvenile offender who's parents or guardians must be notified upon their arrest, per US Code 18/IV/403/5033.

In Mr. Medellin's case, the Mexican government is playing the part of a juvenile's parents - but in no way is the jurisdiction over the right to prosecute Mr. Medellin for his crimes affected. His case is essentially no different than that of an arrestee who wasn't read their Miranda rights, as far as I can tell, with procedural violations being at issue, rather than whether the United States has a right to arrest and prosecute Mr. Miranda in the first place.

[kennyo]

There should only be citizens of states.The "citizens" of the federal government are the states themselves through their duly elected representatives.

[FreedomCalls]

but in no way is the jurisdiction over the right to prosecute Mr. Medellin for his crimes affected

On the contrary, in Medillin's petition, the Government of Mexico raises the issue of diplomatic protection of its citizens and has asked for an annulment of the conviction and sentence for Medillin. That certainly raises jurisdictional questions and materially affects the right of the State of Texas to prosecute Medillin for his crimes. See this quote from the brief filed on Medillin's behalf in the Supreme Court case:

Seeking relief on its own behalf and, in the exercise of its right of diplomatic protection, of its nationals, Mexico claimed that the United States had violated Article 36 in each of those cases and requested, among other relief, the annulment of the convictions and sentences of the 54 Mexican nationals

[djreece]

marking

[Hoplite]

Aye Carumba.

Here is Article 36 of the VIENNA CONVENTION ON CONSULAR RELATIONS

Article 36
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded unde this Article are intended.

Please note Section 2 above - why? Because it confims the receiving State's jurisdiction. And note that the last sentence of 36 1 (b) seems to be at issue in the Medellin case, and doesn't speak at all towards jurisdiction.

Further, please note Article 41 para 3, which affirms the receiving State's jurisdiction over consular officers, by stating that:

3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.

In fact, the only time a consular officer is afforded immunity is during the course of his or her duties, as specified in Article 43:

Article 43

IMMUNITY FROM JURISDICTION

1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

2. The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:

(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Seeing that Mr. Medellin was not a consular officer, and certainly not acting as one when he committed his crimes, the argument that his case is about jurisdiction has nothing to support it.

Plainly put, the United States has jurisdiction over persons on it's territory. And as things stand right now, that jurisdiction confers American citizenship to those born under it, per the 14th Amendment.

[zook]

Let me know when you feel like explaining why my reply was irrelevant.

[elbucko]

Let me know when you feel like explaining why my reply was irrelevant.

Ok, because you claim that "intent" is irrelevant. Therefore, whatever "intent" your reply had, regardless of your intent, it was irrelevant.

Since you like parables, how's this:

Suppose you were driving along the street, obeying all the traffic laws and someone steps out in front of your car and you kill them. What was your intent? Murder? Manslaughter? What shall the DA charge you with? Or was it an accident and your "intent" was not to hurt anyone at all. But, like your 2nd grade example, you did kill the jaywalker, therefore, according to your logic, your intent, benevolent or malevolent, is irrelevant. You have the right to remain silent.

In the case of the 14th Amendment, the context of the times was slavery and the patriation American Negroes from slaves to full US citizens and not for Mexican nationals to purposely arrange the birth of their offspring within the US to make them US citizens. It was not the intent of the 14th. Amendment to promote Mexicans into jaywalking across the US Border, drop their kid in El Norte` and use the newborn to get a specious legal argument for residence. Making US citizens out of Mexican newborns was not the intent of the 14th. Amendment, as the commentary from the times, posted at the beginning of this thread, bears witness.

If you have or will ever sit on a jury, intent is a large consideration during the trial and deliberation. I admit that the wording of the 14th. Amendment is very broad, but no person of integrity would ever imply that the intent was to enable foreign nationals, conceived as such, to become US citizens if birth takes place within US borders.

[middie]

There is nothing secretive or complex about jurisdiction when the issue is "in personam" jurisdiction for purposes of constitutional application. If a living human being is within the borders of the US, including any territory or possession, that person is subject to the jurisdiction of the American law and the judiciary for all purposes. The attempt to create some fatuous distinction and non-extant ambiguity is meaningless. The question is so finally resolved that it wouldn't even make a good constitutional law I exam question.