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.

[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.

Right on! And this pressure should start at the very top with Bush. Regettably he supported two RINOs in primaries. The first was Specter of PA who defeated Pat Toomey, a true conservative. Now he's apparently supporting Chafee in Rhode Island (who makes Kerry look like a conservative) against another conservative. Maybe we can't vote for these conservatives if we don't live there BUT we can let the president and the Republican National Committee know when they send those familiar letters to us asking for money. By the way, is Bush happy now that he helped RINO Specter get re-elected - the senator who now wants to investigate him on the NSA "spy" issue? And who joins forces with those who want leftists on the Supreme Court? This is only one of many instances that illustrate why conservatives need to ardently strive for a root and branch reform (from top down!) of the Republican party in order to return it to the party of Reagan: less taxation, less spending, less intrusive big government, and a strong national defense. We did it before and - if grassroots conservatives become motivated and and activated - we can do it again! By the way, we here in FLA have our own Nelson (Bill). Last time we got rid of "goofy Graham" and re-elected Jeb Bush. Now Bill is in our cross-hairs.

I'm sort of surprised to hear you say that. Maybe I'm missing something but so far as I know Mel has supported Bush on every major vote. I've often been to his website and it seems to me he's been right on all the big votes. There's only been one (and I think greatly hyped) small matter where he used senatorial prerogative to hold up a Bush appointee. But he soon withdrew it. Also, he's only been in office 11 months. But don't worry -- we'll hold his feet to the fire is he shows any signs of Hagelitis, a very serious party disease, often compounded with Specteroteria, always terminal.

That makes 10 Republican Senators who have spoken out -- dare I say, taken "leadership positions" -- against the Bush Administration in less than a month. It's a list that covers topics such as whether to close the Guantanamo Bay detention center, protecting U.S. consumers from the administration's drug industry pals, and preventing Bush lackey Bill Frist (R-TN) from being able to employ the "nuclear option," upending the Senate's rules on filibusters.

The list of 10, if you are scoring at home, is now:

-- John McCain of Arizona
-- Mel Martinez of Florida
-- Charles Grassley of Iowa
-- Olympia Snowe and Susan Collins of Maine
-- Mike DeWine of Ohio
-- Lincoln Chafee of Rhode Island
-- Lindsey Graham of South Carolina
-- John Warner of Virginia

Thanks for the info but I'm somewhat confused because it presents a range of issues and Im not sure that I'd support or oppose all of them myself. For example, we shouldn't assume that all Bush proposals are conservative. I'd be the first to oppose him on immigration. But I do know that Martinez has been right on the Partiot Act, taxes, and judicial reform, all very significant issues. Then, too, no senator is going to be 100% on every one of our personal preferences. Thus far, he's got a good rating with the conservative evaluators. But only time will tell about the next five years. So far, I'm satisfied.

I for one think it's a dangerous practice to make arguments based on the framers' "intent" that contradicts the actual language clearly used...

The language conforms to what subject to the jurisdiction meant, and most likely still means in law. The language conforms to the intent and cutom for the time period. There is no argument to what it means....it is only made a argument with dumbasses who refuse to respect the law of the land. The 1884 Supreme Court got it right just as the 1982 Supreme Court did. Must mean the language means exactly what it says.

The law is so clear to birthright that in 1906 that naturalzation law had to be updated to make children born to parents of aliens a citizen if the father died before becoming a citizen. Aliens who had children in the US remained aliens till the father become a citizen regardless if they were born on US soil. Its not uncommon for the State legislatures to include a count a alien children born for the proceeding year, never calling them American children, but alien children.

Yes, if we're talking about him he was pretty good. He's been on some national TV programs but I havn't seen him for some time - if I recall he had a navy background. I'm ashamed to admit it but I'm represented as a Palm Beach County resident by one of the very WORST of the whole bunch of 535 - Bob Wexler. Do you recall that there were only three of the whole sorry crew that voted for the Republican test vote on Iraq withdraw - and even Murtha went into hiding? Well Wexler was one of the infamous three!

From P.A.'s screed:

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."

From the actual decision:

The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." by the original Constitution, every representative in Congress is required to have been "seven years a citizen of the United States," and every Senator to have been "nine years a citizen of the United States;" and "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President." The Fourteenth Article of Amendment, besides declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and to the State wherein they reside," also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And the Fifteenth Article of Amendment declares that "the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude."
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this, as in other respects, it must be interpreted in the light of common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Ken Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274.

Yes, he's on the Judiciary Committee so he probably had some role in the Bubba fiasco. Before residing here I've lived in St. Augustine, Miami, and Key West. I've never encountered the sort of Democrats that I have here in Palm Beach County. Wexler is not a native Floridian but a transplant from Queens, N.Y. and I've found that many of his supporters are of similar mold. Most of the northerners who come down here come to escape the high taxes, urban crime and blight, and the ravages of winter. If they aren't Republican before many are soon after. Just to cite one example - we have, unlike many other states, no state income tax. You can't lose your home and property for debt incurred - of course that has its downside and brought us some refugees such as O.J. On the whole the state is efficiently governed (I have to say that or my wife will kill me - she works for State of Florida) and most of the people want honest and responsive government. They are also concerned about the environment but not in ways that are in opposition to business growth and sensible development. I've probably gone on for too long but another time I'll give you a sociological profile of the typical Wexler constituent.

I completely agree and such legal aliens should be granted temporary work permits that require them to return to their foreign states after five years. You may be thinking of Debbie Wasserman Schultz who is just slightly to the right of Friedrich Engels. However, I now realize why many transplanted New Yorkers want to give illegals drivers licenses -- because the illiterate and totally inexperienced illegals drive better than them. The good news is that to some extent the Wexler-Schultz cabal is a dying breed and that the overwhelming number of Floridians won't let them recreate another N.Y. down here. That's precisely what even most northerners come to escape. All the demographic and electoral signs are pretty good -- COME ON DOWN!! BUT DON'T BRING ALL YOUR BLIGHT AND LIBERALISM WITH YOU!!

I just perused your "about" section and I must say your choice of worthy females is excellent. I also clicked on the "contact" spot and it seems you are (or were) from Brooklyn. I did all this because in your reply you referred to "this city" and I wanted to see if the city was mentioned. Relative to your family being there for four generations, I think there's something to be said for having roots and being permanent residents in one place. It wasn't too long ago that this was a very positive tradition in America. But that was before we became a mobile society and for a multitude of reasons ranging from corporate transfers, retirement dreams, and the proverbial quest for greener pastures, became a relatively rootless culture. This has been augmented by the age of instant communication, economic wherewithal, and the ease of travel. Of course, there's always a downside to being too rootless and too transient. When I was a kid it wasn't unusual if a person had one or perhaps two jobs his entire working life. Now if you're in a job for five years and aren't looking for something else for some reason people think you're nuts or without ability or ambition. Perhaps as Wordsworth said "the world is too much with us". But the only thing for sure is that we can't change it and have to make the best of what we have. If you don't mind the inquiry do you live in NYC?

Thanks so much for the info. I checked out Dyker Heights on the map. I've been to NYC several times - once with a college classmate - and one of the most memorable experiences I've ever had (no it wasn't the Empire State building or the million other tourist attractions!) and one which I'll never forget was crossing the Verazanno Narrows bridge from Staten Island to Brooklyn. I was - and still am - overpowered by that awesome experience. To me that suspension bridge is a miracle. We were told that cars were not even permitted on the upper tier on very windy days. The actual drive over it was utterly breathtaking and inspiring. But being on the bridge wasn't the ultimate source of awe - no,it was when we went around that "circle" in the Belt Parkway and beheld the bridge in all its splendid majesty and grandeur from a distance. It's an engineering marvel and such things impress me more than most sights. That must seem to be very mundane to you who grew up so close to it and to whom it was so familiar. But it to me it will always be one of the unforgettable events of my life. I've had the good fortune to visit many of our states and even went to Europe once -- but that bridge will always be at the top of my list. I realize to you this may seem somewhat absurd -- but that's how it is!

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