Skip to comments.Citizens, All
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 ...
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?
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.
"How does Mr. Tancredo propose to get around this language?"
I thought that was in the Constitution somewhere. Takes an amendment. Do-able, IMHO.
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.
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.
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.
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.
"...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.
And the amendment is a winning issue.
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):
Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)
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:
Senator Jacob Howard, Co-author of the citizenship clause of the 14th Amendment, 1866.
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.
"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.
' 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!
The first judicial activist was probably Marshall, probably appointed by Adams for partizan reasons, in an effort to undermine President Jefferson.