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Citizens, All
Washington Post ^ | 11/12/5

Posted on 11/12/2005 6:52:36 AM PST by Crackingham

Rep. Tom Tancredo (R-Colo.) has a bold idea to stop illegal immigration: Deny automatic citizenship to the children of undocumented immigrants. "There is general agreement about the fact that citizenship in this country should not be bestowed on people who are children of folks who come into this country illegally," he told the Washington Times. General agreement? Perhaps among Mr. Tancredo's friends in the House but not among the framers of the 14th Amendment. Indeed, any such modern consensus would have a small problem in the text of the Constitution, which is, inconveniently for anti-immigrant demagogues, not subtle on the point. The 14th Amendment begins: "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." Not "all persons except children of illegal immigrants," not "all persons except those Congress exempts in moments of nativism." All persons.

How does Mr. Tancredo propose to get around this language? Like diplomats, illegal immigrants are not truly subject to American jurisdiction, he contends, and their children therefore don't satisfy the constitutional test for birthright citizenship.

The Supreme Court rejected this thesis more than a century ago. "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," the court wrote. Diplomats, as a consequence of the lack of jurisdiction Mr. Tancredo would extend to aliens, cannot be arrested or charged with crimes. Is that what Mr. Tancredo has in mind for illegal immigrants? Members of Congress ought not follow him on this ugly and fruitless path.

(Excerpt) Read more at washingtonpost.com ...


TOPICS: Constitution/Conservatism; Editorial; Foreign Affairs; Government; News/Current Events; Philosophy; Politics/Elections
KEYWORDS: aliens; anchorbabies; illegalimmigration; immigrantlist; immigration; tancredo
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1 posted on 11/12/2005 6:52:37 AM PST by Crackingham
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To: Crackingham

Diplomats, as a consequence of the lack of jurisdiction Mr. Tancredo would extend to aliens, cannot be arrested or charged with crimes.

Then any of their children born here are NOT US citizens?


2 posted on 11/12/2005 6:57:50 AM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: Crackingham
Just one observation for the authors of this editorial:

THE EUROPEANS ALL DO IT!!!

3 posted on 11/12/2005 6:58:48 AM PST by Gay State Conservative
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To: Crackingham

Interesting. It would have to be up to SCOTUS to determine what they thought the framers meant. IMO, I don't think they considered a time when expectant mothers would jump the border to have their babies here just so they could enjoy the benefits of the welfare state.


4 posted on 11/12/2005 6:59:54 AM PST by sageb1 (This is the Final Crusade. There are only 2 sides. Pick one.)
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To: Spiff; HiJinx

"How does Mr. Tancredo propose to get around this language?"

I thought that was in the Constitution somewhere. Takes an amendment. Do-able, IMHO.


5 posted on 11/12/2005 7:01:02 AM PST by Arthur Wildfire! March ("We might have dodged a bomb but we lost a lot of brains." Bill Clinton [Veteran Sink Soldier])
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To: Gay State Conservative

The Constitution and its associated essays on the 14th is quite clear. We cannot violate it, but use the process to change it. Propose an Admendment and have Congress pass it and the states ratify it. Let us not act like liberals.


6 posted on 11/12/2005 7:01:50 AM PST by Fee (`+Great powers never let minor allies dictate who, where and when they must fight.)
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To: tet68
Then any of their children born here are NOT US citizens?

I think that that's the way it works.My understanding is that "diplomatic immunity" is a concept agreed upon through treaties as the result of some of the things that governments used to do to foreign diplomats.

7 posted on 11/12/2005 7:01:52 AM PST by Gay State Conservative
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To: Crackingham
anti-immigrant demagogues

This must be phrase # 3 on the DNC daily fax. I heard it on two local shows in Chicago in the last week, and now in the Washington Post. Hopefully the liberals won't start hiring illegals to tell lies and smears that the Washington Post and other Americans won't do.

8 posted on 11/12/2005 7:03:25 AM PST by Bernard (You can either deal with your situation or be a liberal about it.)
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To: Crackingham
What a great idea! I'm glad that at least someone is interested in solving the illegal immigrant problem.
9 posted on 11/12/2005 7:04:06 AM PST by Colorado Doug (Diversity is divisive. E. Pluribus Unum (Out of many, one))
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To: sageb1
How ironic that they are reading the Constitution. There is nothing that says the parents can automatically stay or that we have to provide benefits.
10 posted on 11/12/2005 7:04:07 AM PST by CindyDawg
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To: Arthur Wildfire! March
Takes an amendment. Do-able, IMHO.

Probably not today.I suspect that two thirds (or is it three quarters?) of state legislatures would pass it...but the US Senate and/or House would be very,very difficult,I fear.

11 posted on 11/12/2005 7:04:45 AM PST by Gay State Conservative
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To: Gay State Conservative

"...but the US Senate and/or House would be very,very difficult,I fear..."

Yeah, with all the emboldening of rats after the last election, you have a point. It will take a few more GOP victories.


12 posted on 11/12/2005 7:15:17 AM PST by Arthur Wildfire! March ("We might have dodged a bomb but we lost a lot of brains." Bill Clinton [Veteran Sink Soldier])
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To: Gay State Conservative

And the amendment is a winning issue.


13 posted on 11/12/2005 7:16:02 AM PST by Arthur Wildfire! March ("We might have dodged a bomb but we lost a lot of brains." Bill Clinton [Veteran Sink Soldier])
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To: Bernard
That phrase is not just a favorite of the left. Some on FR and many surrogates of the administration use similar language if not worse.
14 posted on 11/12/2005 7:18:57 AM PST by mthom
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To: Crackingham
Too bad the WaPo can't cite the case. I can cite a case from more than a century ago that precisely addresses the distinction between subject to the jurisdiction and within the jurisdiction with respect to the 14th Amendment citizenship clause:

As written and ratified, the 14th Amendment was NOT intended to grant citizenship to the children of foreign subjects, all protestations of the WaPo to the contrary.

The Slaughterhouse Cases are the first Supreme Court interpretation of the 14th Amendment on record. The author of the majority opinion is a contemporary of those who drafted and debated the Amendment. The following text is from the majority opinion (about 3/4 of the way down the linked source page):

http://supct.law.cornell.edu/supct/search/display.html?terms=Slaughterhouse%20Cases&url=/supct/html/historics/USSC_CR_0083_0036_ZO.html

Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)
Opinions
MILLER, J., Opinion of the Court

"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 first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

Here is a second source:

"Every Person born within the limits of 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, 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 persons.

Senator Jacob Howard, Co-author of the citizenship clause of the 14th Amendment, 1866.

Senator Howard recognized three classes of people to whom the 14th Amendment citizenship clause would not apply: foreigners (tourists here temporarily), aliens (those here illegally but who have no intention of leaving), and foreign diplomats (here legally and in a special protected status who will leave upon the expiration of their term).

And in Section 5 "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." cedes control of implementing provisions of the Amendment back to Congress. Because the Constitution is a limiting document, the wording of the 14th Amendment citizenship clause means that they MAY NOT grant birthright citizenship to the children of illegals, nor the equivalent.

The confusion lies in the word, "subject." Clearly, in the context of a discussion of citizenship, "subject" refers to the nation of which one is a citizen, a foreign subject. Just because one is within a jurisdiction does not make them a subject.

15 posted on 11/12/2005 7:23:25 AM PST by Carry_Okie (There are people in power who are truly evil.)
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To: CindyDawg

"There is nothing that says the parents can automatically stay or that we have to provide benefits."

Correct. We could take a hard line stand and say that citizen-children of illegals will be adopted by law-abiding US citizens while the illegals are deported. That could be too nasty-sounding though. It takes careful thought.

The driving force of immigration, the root of the movement, is the war against terror. Perhaps we could win on that, but we need to think carefully. A baby is not often a terror weapon. An Islamic mother, perhaps. But a Mexican mother who just gave birth and looking for the citizen-lotto? Sleazy, true. Worthy of debate. But not a high terror risk.

Better to keep them out to begin with, obviously.


16 posted on 11/12/2005 7:23:55 AM PST by Arthur Wildfire! March ("We might have dodged a bomb but we lost a lot of brains." Bill Clinton [Veteran Sink Soldier])
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To: Crackingham
The case to which WaaPo refers is U.S. v. WONG KIM ARK, 169 U.S. 649 (1898) 169 U.S. 649
17 posted on 11/12/2005 7:26:11 AM PST by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie

' The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. '

Ah...! The Washington Compost was pulling a fast one! Very glad you weighed in!

FRegards....


18 posted on 11/12/2005 7:26:56 AM PST by Arthur Wildfire! March ("We might have dodged a bomb but we lost a lot of brains." Bill Clinton [Veteran Sink Soldier])
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To: Arthur Wildfire! March
There were problems with activist courts LONG before Earl Warren. Remember that the latter ruling was during the great wave of immigration of the late 19th Century.
19 posted on 11/12/2005 7:29:12 AM PST by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie

The first judicial activist was probably Marshall, probably appointed by Adams for partizan reasons, in an effort to undermine President Jefferson.


20 posted on 11/12/2005 7:35:26 AM PST by Arthur Wildfire! March ("We might have dodged a bomb but we lost a lot of brains." Bill Clinton [Veteran Sink Soldier])
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To: Gay State Conservative

Thats hardly a reason to emulate anything. I could point out a million things that the Europeans do, that the United States (thank god) does not. Thats what makes this a much better place than europe.

I dotn agree with Tancredo on this one. If youre born in the United States, youre American, period. No matter what the circumstances of your birth.


21 posted on 11/12/2005 7:41:26 AM PST by ketelone
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To: Crackingham
The 14th Amendment begins: "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." Not "all persons except children of illegal immigrants," not "all persons except those Congress exempts in moments of nativism." All persons.

How does Mr. Tancredo propose to get around this language?

Same way you liberal idiots get around this one:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.


22 posted on 11/12/2005 7:46:36 AM PST by Bommer (To Ted Kennedy - "Fat Drunk and Stupid is no way to go through life son!" - Dean Wormer)
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To: Crackingham
I am all for stopping illegal immigration. But to deny citizenship to those born in this country is not only wrong, it is impossible. Anyone born in America is, by definition, a native American and is automatically entitled to citizenship.

What makes it wrong is that the illegal parents are here in the first place, and that the newcomer and its family are immediately plugged into the welfare system and taken on the backs of the rest of the country.

Immigration reform should include:

1. Deport all illegal aliens if it takes ten years.

2. Build an electronic wall along all of our borders.

3. Deny Constitutional protection to non-citizens.

4. Deny welfare benefits to illegal aliens.

5. Require all applicants for citizenship to prove that they are able and willing to assimilate, speak, read and write English, and possess the education and skills needed to be self-reliant.

6. Restore immigration quotas to pre-1970 numbers.
23 posted on 11/12/2005 8:31:43 AM PST by R.W.Ratikal
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To: Carry_Okie

Thanks, you saved me the trouble of citing the Slaughterhouse case, along with finding the original debate materials. I'd be interested in knowing what case they're citing.


24 posted on 11/12/2005 8:48:09 AM PST by andyk (Fear my strategery of misunderestimation.)
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To: andyk
I'd be interested in knowing what case they're citing.
25 posted on 11/12/2005 8:53:45 AM PST by Carry_Okie (There are people in power who are truly evil.)
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To: ketelone

See post #15. The statute was NEVER meant for those crossing our borders illegally.


26 posted on 11/12/2005 9:15:07 AM PST by WatchingInAmazement (You canít tell someone much about a boxing glove until it hits them in the face.)
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To: Crackingham; 1_Inch_Group; 2sheep; 2Trievers; 3AngelaD; 3rdcanyon; 4Freedom; 4ourprogeny; ...
Click to see other threads related to illegal aliens in America
Click to FR-mail me for addition or removal

Interesting. Carry_Okie has again posted the particulars at #15 that the press blithely choose to ignore. And so, the 'debate' continues.

FWIW, IMO I don't agree with conferring citizenship on anchor babies.

27 posted on 11/12/2005 9:21:26 AM PST by HiJinx (~ www.ProudPatriots.org ~ Serving Those Who Serve Us ~ Operation Season's Greetings ~)
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To: Crackingham
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

(sigh)

Everyone insists on putting more into this sentence than is actually there.

The United States does NOT mean the entire country...if it did, the additional qualifier of 'and of the State wherein they reside' would be redundant, but it's not.

The *United States* and it's jurisdiction is defined by Article I, Section 8,paragraph 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;

__________________________________________________

Even though the extent of the United States is CAREFULLY outlined in the Constitution, NO politician or anyone else in the federal government will EVER admit to it. To do so would greatly diminish governmental control.

"When all government, in little as in great things, shall be drawn to Washington as the Center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."
– Thomas Jefferson

_________________________

Oh.... and claiming to be a *US citizen* is not necessarily a good thing:

"... a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that `citizen' means `citizen of the United States,' and not a person generally, nor citizen of a State ..."
U.S. Supreme Court in US v. Cruikshank, 92 US 542:

______________________________________________________________________

The US Supreme Court in Logan v. US, 12 SCt 617, 626:
"In Baldwin v. Franks ... it was decided that the word `citizen' .... was used in its political sense, and not as synonymous with `resident', `inhabitant', or `person' ..."

______________________________________________________________________

14 CJS section 4 quotes State v. Manuel 20 NC 122:
"... the term `citizen' in the United States, is analogous to the term `subject' in the common law; the change of phrase has resulted from the change in government."

______________________________________________________________________

125 Fed 322, 325:
"The thirteenth amendment is a great extension of the powers of the national government."

______________________________________________________________________

U.S. v. Rhodes, 27 Federal Cases 785, 794:
"The amendment [fourteenth] reversed and annulled the original policy of the constitution"

______________________________________________________________________

Hague v. CIO, 307 US 496, 520:
"... the first eight amendments have uniformly been held not be protected from state action by the privileges and immunities clause" [of the fourteenth amendment]

28 posted on 11/12/2005 9:23:49 AM PST by MamaTexan (I am NOT a ~legal entity~.... nor am I a *person* as created by law!!)
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To: HiJinx

Protect our borders and coastlines from all foreign invaders!

Support our Minutemen Patriots!

Be Ever Vigilant ~ Bump!


29 posted on 11/12/2005 11:19:13 AM PST by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: Crackingham

Until I see a solid argument otherwise, I will maintain the position that it is perfectly Constitutional - and more than that, proper - to deny citizenship to the US-born children of illegals. Illegal aliens, by entering this nation in felonious violation of our law, by their own actions deny the jurisdiction of the United States. They cannot then justly claim that very same jurisdiction as a basis for citizenship for their children.


30 posted on 11/12/2005 11:24:03 AM PST by thoughtomator (Bring Back HCUA!)
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To: Crackingham
which is, inconveniently for anti-immigrant demagogues, not subtle on the point.

After I read this sentence, I didn't really need to go any further.....

susie

31 posted on 11/12/2005 12:40:15 PM PST by brytlea (I'm not a conspiracty theorist....really.)
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To: Carry_Okie

THank you. Very clear.
susie


32 posted on 11/12/2005 12:43:50 PM PST by brytlea (I'm not a conspiracty theorist....really.)
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To: Carry_Okie

Excellent Post.

Thanks.

I learn something new here at FR everyday.


33 posted on 11/12/2005 1:42:26 PM PST by Col Freeper
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To: Crackingham
"How does Mr. Tancredo propose to get around this language?"

The same as how the Second Amendment is prostituted by federal and state firearms controls, or as Campaign Finance Reform restrictions infringe upon the First Amendment rights of free speech, or as property tax laws allow seizure of property without just compensation crossgraining the Fifth Amendment.

The key? "subject to the jurisdiction". No citizen birthright certification ought to be issued without first one parent present their own birth certificate and/or a certificate of naturalization if issued outside the United States.

IMO, ALL marriage certificates issued to illegals ought also be voided whether the other is a legal resident or not. That "legal" person ought be prosecuted for aiding and abetting an illegal alien's stay.

34 posted on 11/12/2005 1:55:06 PM PST by azhenfud (He who always is looking up seldom finds others' lost change.)
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To: Crackingham

Liberals are taking alot on with this since so many instances of fraud exist to make this a ten ton millstone about their necks.


35 posted on 11/12/2005 3:18:41 PM PST by junta (It's Jihad stupid!)
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To: ketelone

You must be in some trance not to realize we are being had.


36 posted on 11/12/2005 3:23:07 PM PST by junta (It's Jihad stupid!)
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To: Fee
The Constitution and its associated essays on the 14th is quite clear. We cannot violate it, but use the process to change it. Propose an Admendment and have Congress pass it and the states ratify it. Let us not act like liberals.

When the text of the Constitution, Ammendments, or laws are unclear or debated, one must look at the intent and words behind the law.
Please see post 15.
To accept a false interpretation of an Ammendment to the Consitution is to damage the document. Thus Congress is under no olbigation to hold that children of illegal aliens or any aliens are citizens.

37 posted on 11/12/2005 4:07:13 PM PST by rmlew (Sedition and Treason are both crimes, not free speech.)
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To: HiJinx; Carry_Okie

I'll have to read the post again and the related links later, but a question comes to my mind.

If two U.S. citizens (or let's say even just one of the parents is a U.S. citizen) have a baby born abroad, is that child automatically considered a citizen of the United States?

I would think that the child would be a U.S. citizen. It would seem funny to me if the child were not.

This is how I think it should work. In other words, a child born of citzens of Mexico should be considered a citizen of Mexico as well. A child inherits the family name, fortunes, etc. But the family cannot pass on what it does not have, in this case, citizenship which does not belong to either parent.

If the U.S. were invaded by an army from abroad, would children born of that army while hostily on U.S. soil be a U.S. citizen? That wouldn't make much sense.


38 posted on 11/12/2005 4:43:28 PM PST by planekT
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To: planekT
If two U.S. citizens (or let's say even just one of the parents is a U.S. citizen) have a baby born abroad, is that child automatically considered a citizen of the United States?

Yes.

This is how I think it should work. In other words, a child born of citzens of Mexico should be considered a citizen of Mexico as well. A child inherits the family name, fortunes, etc. But the family cannot pass on what it does not have, in this case, citizenship which does not belong to either parent.

Here is the key distinction: The parents need to be naturalized to be citizens and so should their children, born here or not. The child of naturalized parents may choose to become an American citizen at the age of majority, but must himself go through the same process as the foreign born.

Frankly, I wish it were the case that even native born citizens went through a process requiring a commitment to gain full voting rights. The current practice of offering voting rights to the insane or the mentally incompetent must end. There are supposedly cases wherein the nurses hold up photographs of candidates in front of the patients and supposedly write down whatever person the patient supposedly preferred.

39 posted on 11/12/2005 4:54:49 PM PST by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie

Thank you for the post. I was always taught that if you are born on US soil, you automaticly are a US citizen. Where did this interpretation of the 14th Admend come from?


40 posted on 11/12/2005 6:15:12 PM PST by Fee (`+Great powers never let minor allies dictate who, where and when they must fight.)
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To: Fee
The Slaughterhouse Cases were brought before the Supreme Court as the first clarification of the 14th Amendment after its ratification. Chief Justice Miller thus deemed it necessary to articulate the entire amendment as part of his decision. The reason is that, even then, its meaning was controversial, especially as regards equal protection of fictitious persons; i.e., corporations.

For more on that, I wrote an article here.

41 posted on 11/12/2005 6:24:42 PM PST by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie

Thanks, CO, for your enlightening post which everyone should read, INCLUDING our lawmakers. I'll make sure it gets to those in my state.


42 posted on 11/12/2005 6:59:40 PM PST by janetgreen
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To: sageb1

I think I read something a while back about how Roberts opposed automatic citizenship to children of illegal immigrants. Not sure though.


43 posted on 11/12/2005 7:42:06 PM PST by SC33
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To: Carry_Okie

Ok, try to follow this. I know it's confusing, but it's worth it.

Firstly --
Justice Miller's aside in the Slaughterhouse Cases is NOT the holding in the case, and therefore has no legal precedential value. In fact, it is thoroughly dismissed in the LATER case cited by the WaPo (US v. Wong Kim Ark), where the majority opinion stated:

"Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: 'The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.' . . . This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase ...."

In other words, Miller was wrong. And as an "aside" which was not necessary to Miller's holding in that case, it was never law.

The court in Wong Kim Ark went on to say that the real intention of the words "subject to the jurisdiction of" was to exclude "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."

And why would we want illegal aliens to be "subject to the jurisdiction" of the United States? For the same reasons explained by the Wong Kim Ark court:

"The reasons for not allowing to other aliens exemption 'from the jurisdiction of the country in which they are found' were stated as follows: 'When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were . . . not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption."

Got that?

Secondly -
Lets take a look at your second cite -- Senator Jacob Howard. "Foreigners, aliens" is not meant to stand alone, but rather are qualifiers and emphasis for the rest of the sentence -- "who belong to the families of ambassadors" etc.
Otherwise, there would have been an "or" thrown in there.

Thirdly --
"Alien" DOES NOT MEAN "ILLEGAL ALIEN". It is a normal and ordinary synonym for any "non-citizen."

Fourthly --
"Subject"?? Subject is not a noun in this case!!! If you are "subject to the jurisdiction" it means you are within the control of the jurisdiction. Why on earth would you want illegal aliens to be exempt from our laws? (See 1. above)

Glad to be of help.


44 posted on 11/13/2005 4:36:45 PM PST by rebmarks
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To: rebmarks; HiJinx; gubamyster; Spiff; inquest; Arthur Wildfire! March; andyk; MamaTexan; ...
Ok, try to follow this. I know it's confusing, but it's worth it.

You just had to sign up here to do this and you’re annoyed? So sad. Seeing as you’ve not learned what this site is about yet, I’ll be glad to help. At least you’re probably getting paid for this, unlike the rest of us.

Justice Miller's aside in the Slaughterhouse Cases is NOT the holding in the case, and therefore has no legal precedential value.

If you read my post, I said that the Slaughterhouse Cases ADDRESS the issue. I did not say that they were precedent. The majority opinion, because it was contemporaneous with the ratification of the 14th Amendment, record the understanding of those who drafted, passed, and RATIFIED the Amendment, which DOES have value toward an originalist interpretation. Unless you believe that Justice Miller was lying, or prefer a rubber, er, "living Constitution," what the law meant at the time it was ratified is what is at issue, not what anybody else wishes it to mean at a later date. The opinion therefore has value in interpreting the intent of the 14th Amendment.

Got that?

In fact, it is thoroughly dismissed in the LATER case cited by the WaPo (US v. Wong Kim Ark), where the majority opinion stated:

About which I don't particularly care, for reasons I’ll explain later.

Now, as to dicta, notwithstanding the secret construction, hasty passage, and coerced ratification of the 14th Amendment, if it was true that the Supreme Court NEVER used dicta as precedent, you might be on solid ground. However, as Santa Clara v. Southern Pacific (118 U.S. 394 (1886)) proves (pertinent because it is more contemporary with Wong Kim Ark), even a headnote, written by the court clerk has carried significant precedence, especially because it established equal protection for fictitious persons (which may have been (railroad lawyers), Conkling and Bingham’s intent, but was not the understanding of those ratifying the Amendment). Interestingly, that self same court clerk, Court Reporter J. C. Bancroft Davis, was a corporate socialist, a student of Marx, and had a record of falsifying documents, but I suspect that doesn't matter a whit to you.

You can't have it both ways, sirrah. Drop equal protection for corporations and return them to full State jurisdiction and you might have a deal insofar as the integrity of your argument is concerned, but enough of that digression.

In other words, Miller was wrong. And as an "aside" which was not necessary to Miller's holding in that case, it was never law.

No, that's not what it says, despite how much you might wish otherwise. It says that Miller's opinion didn't matter because they were going to define the phrase as they saw fit. Fitting for the corporate attorneys who dominated the Supreme Court in those days.

Allow me to start with an examination of just who these concurring legal geniuses on the Court really were:

We have Rufus Peckham, infamous inventor of the now-discredited term, "substantive due process," used to invalidate a state statute regulating the hours of bakery employees.

We have George Shiras, a prominent (drum roll please) railroad lawyer with no prior judicial experience and friend to corporate railroad barons with a rather keen interest in retaining Chinese coolies. Kinda reminds you of something rather more contemporary, doesn't it?

We have Horace Gray, author of the majority opinion, a buddy of Brandeis, Holmes, and other noted court activists and a big fan of paper money.

We have Yalie David Brewer, founder of the American Society of International Law, peace advocate, and judicial activist toward using the court to supersede State laws.

We have Yalie Henry Brown, , author of Plessy v. Ferguson!!!, and a huge fan of the use of Admiralty Law as a regulatory means (even though he hired a substitute to serve in the military for him in the Civil War).

Lovely bunch.

Now, in your discussion, it is notable that you neglected to cite the dissent. Allow me to correct what must be an unintentional oversight on your part:

We have Chief Justice Melville Fuller, a big fan of Thomas Cooley’s Treatise on Constitutional Limitations and property rights, but by no means a corporate shill.

Finally among the dissenters, there is John Marshall Harlan, who had the temerity to oppose broad interpretation of the Commerce Clause and opposed Plessy v. Ferguson.

Justice McKenna did not participate as he was newly confirmed.

So far, I like my team better, so let’s take a look at that dissenting opinion.

If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court,-an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.

It is an admirably clear construction of the modern consequences of the ruling, all your protestations notwithstanding.

Chief Justice Fuller goes on with this elegant argument equating your preference with feudalism:

The English common-law rule, which it is insisted was in force after the Declaration of Independence, was that 'every person born within the dominions of the crown, no matter whether of English or of o reign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.' Cockb. Nat. 7.

The tie which bound the child to the crown was indissoluble. [169 U.S. 649, 707] The nationality of his parents had no bearing on his nationality. Though born during a temporary stay of a few days, the child was irretrievably a British subject. Hall, Foreign Jur. 15.

The rule was the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord. It was not local and temporary, as was the obedience to the laws owed by aliens within the dominions of the crown, but permanent and indissoluble, and not to be canceled by any change of time or place or circumstances.

How charming. Maybe he’s done? Not quite, and by a long shot.

You see, citizenship appertains exclusively to the allegiance of parentage, else the choices and preferences of those parents, AS LEGITIMATELY EXERCISED UNDER LAW, including changing citizenship by naturalization, is not something so easily superseded unless you think the State has a claim on the baby, the parents allegiances notwithstanding. So, I take it that you are anti-family in your stance too!

Allegiances of parentage are not so easily transgressed in law as you would suppose either. Back to the dissenting opinion:

Twiss, in his work on the Law of Nations, says that 'natural allegiance, or the obligation of perpetual obedience to the government of a country, wherein a man may happen to have been born, which he cannot forfeit or cancel or vary by any change of time or place or circumstance, is the creature of civil law, and finds no countenance in the law of nations, as it is in direct conflict with the incontestable rule of that law.' Volume 1, p. 231.

It’s really quite an opinion; you ought to read it. Of course if you had, then your post relegates from probably contractual interest to one of singular dishonesty.

Fuller goes on to cite Story, Taney, and any number of opinions from within the Department of State, proving that Gray et al. could in no way honestly be citing historical precedent within the US as regards common law in this instance. He includes citation to the Federal Convention as well, indicating that the issue was raised and disposed in opposition of the majority opinion.

When he’s done with court and general pre-war precedent regarding citizenship, then Fuller looks to the essential precedent to the 14th Amendment, the Civil Rights Act of 1866, passed a mere TWO MONTHS before the drafting of the Amendment:

The civil rights act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided 'that all persons born in the United States, and not subject to any foreign power, excluding Indians [169 U.S. 649, 720] not taxed, are hereby declared to be citizens of the United States.' And this was re-enacted June 22, 1874, in the Revised Statutes (section 1992).

The words 'not subject to any foreign power' do not in themselves refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that, nevertheless, they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.

You will also note that citizens of a foreign country are usually expressly prohibited from taking other citizenship without having renounced their native allegiance. It is patently illogical that their children would be allowed by that foreign power to do otherwise.

He completed his treatise addressing treaties between China and the US as well.

As to Mr. Howard's oratory in chambers (as opposed to written work), whether it should have included an "OR," frankly, that you find it necessary to make a Constitutional distinction between the children of diplomats and those of invaders and travellers is to render our treaty understandings with those countries and their jurisdiction over their citizens laughable. It is to show NO RESPECT for any other nation on earth and flies in the face of our nation's understanding of equal protection under the law.

Thirdly --

"Alien" DOES NOT MEAN "ILLEGAL ALIEN". It is a normal and ordinary synonym for any "non-citizen."

Silly me. As if I didn't know that. My point in all this detail is that the children of LEGAL aliens aren't legitimate 14th Amendment citizens either.

But I’m not done with you.

"Subject"?? Subject is not a noun in this case!!! If you are "subject to the jurisdiction" it means you are within the control of the jurisdiction. Why on earth would you want illegal aliens to be exempt from our laws? (See 1. above)

If I'm driving in Europe, I have to obey their traffic laws because I am WITHIN their jurisdiction. That doesn't make me a European SUBJECT.

I take you to Bouvier’s Law Dictionary, most applicable to the understanding of the word, “subject,” common at the time the Amendment was drafted and ratified (you know… the law):

SUBJECT, persons, government. An individual member of a nation, who is subject to the laws; this term is used in contradistiction to citizen, which is applied to the same individual when considering his political rights.

2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. §286; Phil. & Am. on Ev. 732, n. 1.

Fancy that. You are either igonorant of the mid-19th Century term, "subject," or the misconstruction you offered is intentional. If you were in my employ, I'd withhold the check. If you are a lawyer, you'd best ask for a refund on my tuition as this engineer has made hash of your arguments.

Welcome to FreeRepublic, where people take the original intent of laws rather seriously, else they become rubber legislation with no meaning at all.

45 posted on 11/13/2005 10:34:57 PM PST by Carry_Okie (There are people in power who are truly evil.)
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To: Carry_Okie

Ok, I have a question for you.

How could the Fourteenth Amendment bestow citizenship rights on American-born former slaves or children of former slaves, if their parents were not citizens? Certainly the Emancipation Proclamation didn't do it, or there would have been no need for the Fourteenth Amendment. According to your interpretation, they were not "subject to the jurisdiction" of the United States because they inherited the foreign citizenship of their parents. If that is not the case, by what mechanism did slaves lose their citizenship of their country of birth? Kidnapping? By your logic, if former foreign-born slaves did not become American citizens by actively seeking naturalization, then their children, and their children's children, and their children's children's children, ad infinitum, would not be citizens today -- and the Fourteenth Amendment would be meaningless. And if you argue intent, why didn't the framers just write the Fourteenth Amendment to cover the descendants of slaves, and slaves only?


46 posted on 11/14/2005 5:45:50 AM PST by rebmarks
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To: rebmarks
How could the Fourteenth Amendment bestow citizenship rights on American-born former slaves or children of former slaves, if their parents were not citizens?

It's an Amendment to the Constitution. That was its intent. It was ratified. Nothing more need be said. Sheesh.

47 posted on 11/14/2005 6:20:07 AM PST by Carry_Okie (There are people in power who are truly evil.)
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To: rebmarks
How could the Fourteenth Amendment bestow citizenship rights on American-born former slaves or children of former slaves, if their parents were not citizens?

They may not have been citizens prior to the amendment, but they were undoubtedly subjects. They owed absolutely no allegiance to any foreign nation. Only the U.S.

48 posted on 11/14/2005 12:56:42 PM PST by inquest (FTAA delenda est)
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To: inquest

That's exactly my point -- what made them "undoubtedly subjects"? The fact that they were subject TO the control of U.S. laws? (Subject in the Fourteenth Amendment is used as an adjective, not a noun. It does not say "a subject of" but rather "subject to" -- see Websters 1928 Dictionary; more likely closer to the understanding of most of the framers than Bouvier's, which only defined the noun). If that were the case, then everyone on U.S. soil is subject to the control of U.S. laws (except diplomats).

And what made them owe allegiance to the U.S.? Again -- kidnapping? Please, someone, tell me by what legal mechanism first-generation slaves lost their citizenship of their country of birth in Africa.

If the framers intended this Amendment to apply to slaves and slaves only, then they would have written it that way. Surely it didn't just slip their minds. But they didn't. They said "persons." And that must have been for a reason. Can someone answer that? In all your parsing of the intent of the framers someone somewhere must have said why they didn't write "persons of African Slave descent".


49 posted on 11/15/2005 9:28:15 AM PST by rebmarks
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To: rebmarks
Subject in the Fourteenth Amendment is used as an adjective, not a noun. It does not say "a subject of" but rather "subject to"

Are you familiar with the grammatical concept of a substantive noun? It's when an adjective is used as a noun (as with the word "variable", for example). A subject of a government is someone who's subject to its jurisdiction.

That means, by the way, subject to its jurisdiction at all times, even when he's out of the country. That's why a U.S. citizen who engages in child prostitution in Thailand can be prosecuted by U.S. authorities. That's why Johnny Jihad was charged with treason, despite the fact that his actions took place in Afghanistan.

And what made them owe allegiance to the U.S.? Again -- kidnapping? Please, someone, tell me by what legal mechanism first-generation slaves lost their citizenship of their country of birth in Africa.

However grossly immoral it was, it was perfectly legal under our laws at the time. That's just a fact we have to face. And it's really beside the point, because slave imports from Africa were cut off in 1808, so there'd have been nary an American former slave alive in 1868 who'd even know what the country of his ancestors' origin was, or in many cases, who is ancestors were. America is the only country they ever knew.

50 posted on 11/15/2005 9:55:55 AM PST by inquest (FTAA delenda est)
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