Posted on 12/17/2005 11:39:40 AM PST by Founding Father
Alien Birthright Citizenship: A Fable That Lives Through Ignorance
Ever since the subject of Congress taking up Birthright Citizenship have we seen the power of ignorance at work through the MSM. It is difficult to find any editorial or wire story that correctly gives the reader an honest and accurate historical account of the Fourteenth Amendment in regards to children born to foreign parents within the United States. Most often the media presents a fabled and inaccurate account of just what the Citizenship Clause of the Fourteenth Amendment means.
Recent story lines go something like this: "Currently the Constitution says that a person born in this country is an American citizen. That's it. No caveats." The problem with these sort of statements other than being plainly false is that it reinforces a falsehood that has become viewed as a almost certain fact through such false assertions over time.
This is like insisting the sun rotates around the earth while ignoring the body of evidence to the contrary.
During the reconstruction period following the civil war the view on citizenship was that only children born to American parents owing allegiance to no other foreign power could be declared an American Citizen upon birth on U.S. soil. This is exactly the language of the civil rights bill of 1866: "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
The author of the Fourteenth Amendment, Rep. John A Bingham (OH), responded to the above declaration as follows: "I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."
Already before we get to the Fourteenth Amendment Citizenship Clause we have the entire Congress declaring only children born to parents who owe no foreign allegiance shall be citizens. We also have the author of the Fourteenth Amendment declaring this is law of the land. It just gets worst for advocates who want to either believe or, revise history, to support their fable that the Fourteenth Amendment somehow magically makes anyone born in the United States regardless of the allegiance of their parents a natural born citizen.
Sen. Jacob Howard, who wrote the Fourteenth's Citizenship Clause believed the same thing as Bingham as evidenced by his introduction of the clause to the US Senate as follows:
[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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.
Advocates for birthright citizenship for aliens either through ignorance, or deception, attempt to pretend "subject to the jurisdiction" means only one thing: location at time of birth. It does not, and never had such a meaning during the time period in question. The record of law is full of references to jurisdiction that had nothing to do with physical location. Take for example title XXX of 1875, sec 2165 where is states:
[Any] alien who was residing within the limits and under the jurisdiction of the United States...
Simply being on US soil (limits) does not automatically put you under US jurisdiction like some pro alien advocates would like to believe. Under the common myth of the meaning -- simply being within the limits of a State automatically places an alien under US jurisdiction for Fourteenth Amendment purposes. It does not as Bingham and Howard plainly makes clear as well as laws regarding the subject at the time also make clear.
So than, what exactly did subject to the jurisdiction mean? Sen. Lyman Trumbull, Chairman of the Judiciary Committee, framer of the Thirteenth Amendment told us in clear language what the phrase means under the Fourteenth:
[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
Sen. Jacob M. Howard, responded to Trumbull's construction by saying:
[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Myths can be difficult to dispose of, and birthright citizenship to aliens is no exception. Pro immigration advocates will refer to the Supreme Court ruling U.S. v. Wong Kim Ark as a desperate attempt to keep the fable alive. The problem with relying on Wong Kim Ark is that it draws zero support from the Fourteenth Amendment. In fact, the ruling had nothing to with the Fourteenth Amendment at all, but everything to do with English Common Law, something the Fourteenth's Citizenship Clause had no connection because it was a virtue of "national law."
There is other significant problems with the Wong Kim Ark ruling other than having no basis in Fourteenth Amendment text, intent and history that will never hold up under review -- and that is how will any court with a straight face attempt to reconcile the Civil Rights bill of 1870. Remember that civil rights bill declared those children born to parents subject to a foreign power cannot be declared United States citizens.
You cannot simply revise he Fourteenth's Citizenship Clause to mean yes, it really was the intent of the Congress to grant citizenship to alien children born on US soil when the same Congress enacted law afterwards that did just the reverse. Try and explain why Congress would pass a Constitutional Amendment that grants citizenship to ANYONE born in the US and then turn around and pass a law that would deny automatic citizenship to aliens? Because you cannot, only leads us back to the to the exact construction of the clause for which it was intended and written to mean.
The Wong Kim Ark ruling is so badly flawed and irrelevant probably lead to the US Supreme Court in 1982 to say they "had never confirmed birthright citizenship for the children of illegal aliens."
By far the most relevant Supreme Court ruling on the subject to date, and indeed, fully supported by the Fourteenth Amendment itself came in Elk v. Wilkins 112 U.S. 94 (1884), where the court held that the phrase "subject to the jurisdiction "requires "direct and immediate allegiance" to the United States, not just physical presence.
If pro immigration groups or individuals want to continue in believing the Fourteenth Amendment grants citizenship to anyone born in the country regardless of their allegiance, fine -- but to continue to insist the Fourteenth Amendment supports their fable is both feeble and a disrespect to American history.
Okay. I had this discussion with someone the other day, and they insisted so vehemently that ANYONE born on US territory becomes a citizen, that I kind of had to shrug my shoulders and mumble that I really didn't think that was true.
So, the definitive correct question and answer is:
QUESTION: "Is any human being born on US territory to parents who are not US Citizens automatically a US Citizen?"
ANSWER: "NO"
One could say Iraq is "subject to the jurisdiction" of the US and therefore all children born there are US Citizens...
But I won't...
The law in this instance is being enforced as written. The intent of the authors is irrelevant if they weren't capable of putting it into unambiguous written English.
Yes, I posted that article too.
IMO, the "intent" of the author of the 14th Amendment should be be trumped by the actual language used, which reads as follows: "Secion 1. All persons born or naturalized in the United States and subject to the juisdiction thereof, are citizens of the United States and of the State wherein they reside." Regardless of the author's presumed intent, the language is pretty straight forward. I for one think it's a dangerous practice to make arguments based on the framers' "intent" that contradicts the actual language clearly used (although I don't have a problem with this test as a measns of clarifying a substantial ambiguity, as is unfortunately the case of the second Amendment).
ping
I realize that we are shaping up for a campaign in which the Republican Party to which I belong with some enthusiasm will make the long term strategic blunder of alienating Latin American ancestry voters in order to take advantage of the Demonrats' institutional incapacity to join in border mania. The GOP may win another two years of conrol of Congress by doing so. More likely, it will be difficult to retain Congress because of the mushrooming Congressional scandals which have nothing to do with philosophy: Doolittle, Ney, DeLay (unfarly prosecuted), Frist, et al.
My Congressman votes pro-life and is in agreement with y'all on the immigration although somewhat less enthusiastic than thee. I will vote for him and always against Durbin and Obama.
The privately expressed opinions of those obscure fellows like Jacobs and Bingham, who ae said by an anti-immigration website to have been the framers of the 14th Amendment only come into play where there is ambiguity. There is none. Don't be too disappointed when SCOTUS rules accordingly and finds that those born here are subject to US jurisdiction and citizens.
This is not an invitation to further argument but simply a respnse to the pinged article.
I don't think even the most reflexive, intractable OBL would describe the problem of illegal immigration as unimportant, or insignificant, which is probably why so much ink and airtime has been devoted to this subject by the mainstream media, albeit in a conscious effort to minimize the costs of illegal immigration to this country.
The real and underlying problem is not one of constitutional interpretation, it's the non-enforcement of the border control to the south, and that isn't going to be cured by an attempted end-run around the manifestly clear language of the Constitution.
Remember that civil rights bill declared those children born to parents subject to a foreign power cannot be declared United States citizens.
No, it didn't.
Simply being on US soil (limits) does not automatically put you under US jurisdiction like some pro alien advocates would like to believe.
Actually, it does, with minor exceptions. If a foreigner commits a crime here he is subject to trial and punishment under the laws of the U.S. or of the state where the crime was committed; that's just what "subject to the jurisdiction" means.
During the reconstruction period following the civil war the view on citizenship was that only children born to American parents owing allegiance to no other foreign power could be declared an American Citizen upon birth on U.S. soil.
Then who is a citizen of the U.S. is determined by the laws of every nation except the U.S..
Aside from the 14th Amendment issue all FRepers should be aware of the good bill that has passed the House (sponsored by Rep. Sensenbrenner) designed to curb illegal immigration. The bad news is that the usual coterie of liberal jerks in the Senate is already planning to gut the bill of its most effective provisions. We just saw what the Senate did by filibustering the Patriot Act extension. Please contact your senators if they are among the minority who are endangering our national welfare and security. It's time to take ACTION now and remind them that even if they have six year terms at our expense -- we will NOT forget! Incidentally, it would be nice to contact those who are voting correctly to give them support. One sad note - we're seeing a continuing abuse of the unconstitutional filibuster - can we imagine what's going to happen to Alito? (!!)
A good three months down the drain.
Trust me, President Bush's political capital isn't going to be any greater in the middle of January than it is now.
GOP officials, Rep. Nathan Deal, Rep. Tom Tancredo and John C. Eastman should reread the Citizenship Clause.
The phrase "and subject to the jurisdiction thereof," is enclosed within a PAIR OF COMMAS, with the first comma placed before the coordinating conjunction "and."
A comma-plus-coordinating-conjunction is regarded as a "single punctuation mark"; an element enclosed within a PAIR OF COMMAS is "non-restrictive," meaning the phrase is "non-essential" and does not modify or qualify the element preceding it.
Is this another case of being "hanged by a pair of commas" Lynn Truss popularized?
Grammatically, the Clause consists of a compound subject with the main subject "persons" modified by "all" omitted rather than stated in the second element of the ciompound.
Thus, the Clause is intended to be read as:
"All persons born or naturalized in the United States, and [all persons] subject to the jurisdiction thereof, are citizens of the United States and [citizens] of the State wherein they reside."
The Clause thus confers a SECOND, still unrecognized, category of citizens of the United States--"All persons subject to the jurisdiction thereof."
Senator James Doolittle mentions this category during the debate (at p. 2897, 1st col., Congressional Globe, 39th Congress, 1st Session, May 30, 1866) with the phrase "all persons subject to the jurisdiction of the United States" printed in quotation marks:
"But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he [Senator Jacob Howard, the author] uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians..."
Senator Doolittle was fearful of the consequences and implications of the "very language" Senator Howard (the author) employed -- "subject to the jurisdiction thereof" -- as distinguished from the words "subject to" used two months earlier by the same 39th Congress in a similar provision in the 1866 Civil Rights Act, which read:
"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
Note that NO comma is placed before the conjunction "and," which makes the phrase "and not subject to any foreign power" "restrictive," a modifier or qualifier of the preceding phrase, "All persons born in the United States."
Note also that, by this SECOND category, the territorial extent of the Fourteenth is consistent with the extent in the companion Thirteenth.
Thus, under the Thirteenth, it is abolition of slavery [1] "within the United States", or [2] "any place subject to their jurisdiction"; while, under the Fourteenth, it is citizenship to {1] "All persons born in the United States" and [2] "[all persons] subject to the jurisdiction thereof."
Based on the remarks by Judiciary Committee Chairman Senator Lyman Trumbull and Senator Howard (the author) during the debate, this SECOND category conveys the meaning:
"All persons owing allegiance within the extent or territory over which the constitutional power of the United States extends"--or birth within the realm and within the allegiance.
At that time in 1866, this SECOND CATEGORY embraced "persons" NOT "in the United States" but "subject to the jurisdiction thereof" within the following places:
--the 12 ceded territories pending statehood
--the 11 Confederate States awaiting readmission to the Union and representation in Congress
--the District of Columbia.
The words "or naturalized," by the way, were inserted on June 8, 1866 (Id. at p. 3040), a full week after Senator Howard's original draft of the Clause was debated and approved on May 30, 1866.
Senator Howard's original draft conferred "natural law" Birthright Citizenship to (1) "All persons born in the United States"; and (2) "[All persons] "subject to the jurisdiction thereof."
But, and this is important, ONLY those "owing allegiance to the United States."
I think you're right about Bush's political capital. This is why Congress is our only hope. Bush doesn't face any reelection but they do. If conservatives mobilize and let their representatives (especially those treacherous imbeciles in the Senate "club") know that we're going to oppose them we can have an impact. To cite an example, the RINO Chuck Hagel is up for re-election in '06 and also has serious presidential aspirations. The conservatives in Nebraska should be mobilizing now and innundating him with messages that they won't forget his perfidy in being one of four Republicans who supported the Patriot Act filibuster; and that he has done his best to compromise Bush's prosecution of the Iraq war. In so many ways he's become a darling of the liberal media because they periodically give him his needed infusion of "15 minutes" of fame by letting him broadcast his criticisms of the administration. Have you ever noticed that the liberal media hate conservative Republicans but absolutely adore (so long as they're useful idiots) the "mavericks" and turncoats in the party?
The sooner he loses the better off we'll be.
And for anyone who thinks that voting for a (nominal) Republican is always preferable to voting for a Democrat-even if he agrees with our philosophy-just remember that the other Senator from that state is Ben Nelson (D-Neb).
The 14th Amendment is only as good as the US Supreme Court has ruled it to be. So the answer to someone saying it's a fact is to remind them it's subject to Supreme Court rulings. The 2d Amendment is part of the Bill of Rights, and courts have no problem changing that to conform to their political beliefs, and the 14th is no different. The 1st Amendment is currently under attack as the ACLU and others try to remove religion from the public arena. Abortion was never intended to be a privacy right guaranteed by the constitution.
It's routine for courts to use intent for deciding decisions. Not just the Supreme Court, all courts and other municipal bodies. We used intent of the legislature in Denver to stop group homes from epanding in our neighborhood. Intent is being used as well for our states conceled carry laws and other laws that are germaine to every day living.
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