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.
The distinguishing characteristic of "malum prohibitum" is that it is arbitrary and not commanded by moral law. It may even be diametrically opposed to moral law as in the Red Chinese "one child" policy (what part of ILLEGAL don't we American pro-lifers UNDERSTAND???) or telling Mexican people whose families are in grinding poverty that they may press their collective noses against our national shop window and drool in envy but not enter to provide work to willing employers or to be customers to willing sellers or to fill in the drastic (50 million and counting) gaps in population resulting from Planned Barrenhood, the Junior League and Roe vs. Wade. Malum Prohibitum on immigration is the other necessary route to Zero Population Growth societal calcification to go with the Malum Prohibitum tendencies of Roe vs. Wade (you have NOW MANY children????? Don't you know about birth control and abortion as necessary?????).
As to how the Hispanics are voting: In the 1970s, they voted 70% Demonrat and 30% Republican. That was then when Puerto Ricans and Cubans were the dominant groups of Hispanic voters, the former heavily Demonrat and the latter heavily Republican but far less numerous. I hear from frie ds in the Northeast that Puerto Ricans are, at long last, beginning to trend slightly in a GOP direction, say 15% or so and that Cubans are slightly more Demonratic, say 25% or so. In 2004, the Hispanic vote, as a whole, was 45% for Dubya, a very substantial increase from the 30% of two decades ago. When entrepeneurship does for Mexicans what it long ago did for similar immigrant groups, the numbers of GOP voters among them will rise fast enough. They are not coming north because they are lazy welfare louts who dream of their grandchildren being lazy welfare louts. They are coming north to escape the Mexican governmental system of enforced poverty and amorality. They probably cannot afford luggage even on a par with your immigrant ancestors or mine but they have the same dreams.
If we can keep our xenophobics, and Planned Barrenhood/ZPG types (posing as Republicans) at bay or, preferably, in cages and incommunicado, that Hispanic vote promises to be a GOP stromghold in another two decades.
Finally, as to PJB, he willingly listens to the likes of Justin Raimondo and antiwar.com. Fortunately, he is not in total compliance with Justin's moonbat brigade but PJB's judgment is not what it used to be.
To give a bit of red meat to the border obsessives: Vietnamese are "children of the east" as are the Hmong (only one of whom gunned down six Wisconsin hunters while) hundreds have gone from from family illiteracy to valedictorians of their high school classes here in one generation, and the Chinese victims of the one-child policy and Tibetans.
Pat also imagines the Zulu as something other than children of the west but he ought to pay a bit of attention to Mengistu Buthelezi, hereditary war chief of the Zulu, a graduate of distinguished western universities and the best friend that this nation ever had in the so-called Third World. As Buthelezi told an audience of 7 million Zulu as South Africa's apartheid was splintering: We have not come this far through apartheid to succumb at last to the slavery of Marxism-Leninism. PJB was wrong when he suggested that a community of Englishmen (assuming it was a representative community) would fit into America and the Virginia hills better than would the Zulu. Mandela was of the Xhosa who were/are/will be the traditional subjugated enemies of the Zulu just as our modern leftist and abortionist Demonratic enemies ought to become our traditional subjugated enemies.
Life would be less interesting if we were mere clones.
Merry Christmas and God bless you and all of yours!
As to the rest of your post, you are wearing down. You do not engage on issues. Primal scream is not conservative. You are tiresome. You are not worthy of attention. You pinged me at the beginning to pick a fight. I have never pinged anything to your attention because I have no real interest in your opinion on the evidence to date. Your attention is simply not worth it.
12 million are already here. It's a start.
Is Corky a reference to my Irish grandmother's hometown and homecounty???? You bet! Proud of each and proud of her! May God bless the noble heroes of the San Patricio Brigade and the Cristeros as well!
You are sooooooo persuasive!
Consider yourself dubbed.
For a minute while reading the essay I thought I had entered a parallel universe. Thanks for bringing us back to reality.
Though I suppose you didn't need me to alert you to that fact.
I honestly couldn't care less what a mindless, knee-jerk supporter of the Reconquista, and the feckless politicians that enable it-who is the epitome of the affected fop, who substitutes ridiculous gestures and meaningless bloviating for his dearth of knowledge-thinks.
The fact that you are under the impression that Mexicans vote for the Republican Party in any large number, in addition to your historical ignorance, is merely illustrative of how little you know.
The fact that some inbred hillbilly-or other members of his fetid gene pool who he pings relentlessly in order to compensate for a manifestly weak argument-doesn't think highly of me isn't really a huge concern in my life.
What does concern me is that there are so many other individuals-many of them apparently ensconced within the ranks of the Bush administration and United States Senate-who share your asinine opinion on this subject.
FYI, "Corky" is not a reference to your ancestry, but a play on your habitual stupidity, which rivals that of the late, unlamented Bayourod.
Perhaps if you were more conversant with popular culture you would have picked up on the reference, but I see that you are as clueless in that regard as you are in so many other areas.
The fact that illegal immigrants are rapidly depleting every major state's Medicare funds-thereby denying health care to American citizens-depriving honest, hardworking, taxpaying-to an ever-greater degree in order to simply support nonworking, non-taxpaying illegal aliens and tax-eaters-forcing Americans to pay exorbitant college tuitions in order to fund the aspirations of Mexican nationals who are not even in this country legally, the fact that several border states, e.g. New Mexico, California, Arizona, Texas, among others, are groaning under the financial yoke imposed by millions of illegal aliens-including the thousands who are incarcerated in their prisons-is not "projection."
It's reality, and if you folks are too thickheaded to realize it, then that's your problem.
Ninenot and Sittnick: Since Shapka was apparently rude enough to reference you obliquely as either inbred hillbillies or something about a fetid gene pool or whatever without pinging either of you, I thought I should relentlessly ping you yet again to his deep and wondrously complex form of primal scream. I must say that I admire his (?) single-minded devotion to emotional disturbance in spite of the facts.
Shall we follow Ludwig von Mises and Friedrich von Hayek and Adam Smith or Shapka Broham????? The answer seems quite obvious.
For whatever it is worth, I have never objected to the entire US sharing the burdens of the border states in complying with the 14th Amendment mandate (wise or otherwise) to treat all "persons" equally. The feds imposed it and should pay for it.
They're illegal!
How many times does this have to be reiterated before it sinks into that thick skull of yours, which seems to be impenetrable to even the most rudimentary of facts?
Even the most painfully obtuse person, i.e. someone with greater perceptive abilities than yourself, would be able to distinguish between someone who is an American citizen-and is therefore entitled to the full panoply of rights and privileges that attend to that status-and a flagrant interloper who breaks our laws for the specific purpose of exploiting this country's misplaced sense of genorosity.
And no, I don't object to the principle of public education.
What incenses me is the newfound entitlement created by the reckless, Brennan-led majority on the Supreme Court in Plyer v. Doe, which compels American citizens to foot the bill for the education of Mexicans-and any other large group of illegal aliens-who decide to game the system at our expense.
That's what I object to.
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 doesn't matter what the "view" is or what Congress "declares".
All that matters is the wording of the Constitution.
"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."
If you take what the "view" or what Congress "declares" you have made the Consitution into a "living document". Is that truly what you want?
If you don't like it fight to have it changed.
I abhor what the numbers of illegal aliens are doing to MY country. I abhor what the number of illegal aliens are doing to the economy of MY country. MY country, not theirs.
This IS an invasion of MY country. Whether Vincente Fox, Martin TORRIJOS Espino, Abel PACHECO, or any other Central American or South American believe it to be a benign invasion is beside the fact.
I am not anti-Hispanic, nor am I anti-Mexican, I am anti-illegal alien.
Many many people have immigrated here from other countries legally. Why, just because they break our laws and enter our country illegally should they be given the same, or better, treatment than our own citizens?
Look at some of the storys that are printed about illegal aliens being given free health care, being released after causing accidents that take lives, a policeman can't even ask if a person is in this country legally.
There are, literally, millions of illegal aliens entering MY country every year. There are already millions upon millions of illegal aliens already in MY country.
It is against the laws of MY country to enter illegally or to employ anyone that is in MY country illegally. Yet employers flaunt this law on a regular basis. Illegal aliens flaunt this law on a regular basis. They use Social Security numbers that are not theirs to gain unlawful employment.
Why should I trust that they won't break other laws when they have already broken, at least, two?
Something needs to be done to stem the tide of the illegal alien invasion. If it is a wall all the way from the Pacific to the Gulf of Mexico, so be it. If it's troops on the border with orders to turn back everyone that doesn't have the correct ID, so be it.
We need some time to winnow the grain from the chaff in the illegal harvest that is already here.
If we institute a guest worker program after that point, make the worker return to the country of their origin before they are eligible to receive the worker permit, period.
If their employer is so enamored of them then their employer should be willing to hold their job and guarantee them a job when they return.
There is too much at stake, MY countries future, to continue to let illegal aliens into MY country at the rate they are entering now.
This says nothing to the fact that we need to secure our borders against entrance by terrorists. That would be for another thread.
When legal aliens come to MY country they assimilate into the American society.
It seems that when illegal aliens come to my country they want to bring THEIR society with them AND have it trump anything to do with the American society.
I don't want to be North Mexico. I don't want to be North Central America.
The United States of America is what we are, but not for long if we continue to allow illegal aliens to enter at the rate they do now.
Merry Christmas to you, as well.
I cannot pretend to know PJB's thoughts about various individuals or sub-groups and I do understand your concern about Justin RaiPinkDo.
I think PJB was more 'culture' than 'geography'-oriented in his remarks--which is to say, Christianity was the driver--certainly includes a lot of the Hmong/Vietnamese and a great number of Africans.
That said, you have yet to offer a proposal for immigration reform. Should/should not there be controls of ANY type? If so, what might they be?
Secondly, elminate national quotas for immigration. Where they come from has little to do with the desireability of their acceptance here as citizens.
Thirdly, stop making the border states the financial scapegoats for the enforcement of the 14th Amendment's national mandate of equal protection for all persons. Mere proximity to Mexico should not make California, Arizona, New Mexico, Texas and their immediate neighbors financial fall guys. If we cannot eliminate socialism in one fell swoop, we can make financing it as equal as the distribution of its "benefits."
Fourthly, we can make reasonable demands on all immigrants, like learning English which is the dominant language of our nation and its culture. Otherwise they are at the political mercy of poverty pimps.
Fifth, in the free market we should make a point of offering quality PRIVATE, RELIGIOUS education to their children such as your family and mine are involved in. Erect a wall of separation between school and state to benefit new Americans.
Sixth, make the dolts and slackards at whatever they call the federal program to handle immigration applications this week (INS? DHS? Inert bureaucrat of the month club? Whatever?) actually work their way through the mountain of unread applications in those Kansas warehouses and act efficiently and thoroughly to clear the backlog with a temporary suspension of national and numerical quotas until we make up for 50 million slaughtered unborn infants.
Seventh: It is NOT unreasonable to require immigrants to be sponsored by American citizens of reasonable means who will be responsible for them if they fail financially.
Eighth: Rigorous health evaluations and quarantine as necessary a la Ellis Island.
Ninth: Major adjustment of attitude among many Americans to recognize that the American dream is not dead for us or for the rest of the world and should not be. Significant population growth will lead us back to an invincible and dominant position in the world.
Tenth: Scrap WTO, GATT, NAFTA, CAFTA, and every other job-bleeding scheme. Instead of exporting the jobs, import the people.
I admit that I am not terribly concerned about limiting immigration generally to arbitrary numbers. I do think PJB has a reasonable idea as to controlling the numbers simply to let us digest the astounding numbers who are so anxious to be among us.
I'll think of more. Thanks for asking. God bless you and yours.
What did you dispel? What are you afraid of? Did you lose a job to a Mexican? Do you need scapegoats for what you perceive as too little in your paycheck? I fail to grasp any rational reason whatsoever for the hysteria of the anti-immigration crowd. There are plenty of Mexicans in Northwest Illinois. Personally, I don't care whether they are citizens unless they want to vote without that minimal investment. They are very good neighbors here. I don't employ anyone and so I don't employ "illegals."
You take great pains to define yourself as not being anti-Mexican or whatever but that is dissolved by your last two paragraphs and the paranoia about terrorists crossing the border from Mexico when they are far more likely to cross from Canada.
Our troops are badly needed elsewhere and in far too short supply to be wasted on border babysitting.
There are at least twelve million "illegals" in our country. They are people yearning to contribute to our economy, to become Americans and to reap their share of the earnings. They are not "invaders" whatever you may wish to imagine and however convenient it may seem to squeeze immigrants into a non-fitting frame so that you can make believe that your desire to exclude them is constitutional.
Again, what is your CONSTITUTIONAL remedy to stop the immigration? Without one, you are goiung to look an awful lot like the successful buggy whip manufacturer who is just terribly upset at what those newfangled horseless (!!!!) carriages are doing to YOUR country (or more likely your convenience and comfort).
If you are not disturbed by the levels of socialism strangling our country, by 50 million abortions, by "gay" "marriage", by the utter futility of publick skewels brainwashing kids for socialist and anti-moral schemes, one really wonders why you are so upset at the immigration. Are you concerned that innocent Mexican kids might be brainwashed by Publick Skewel socialist teacher?
Do you have a constitutional solution given the requirement of the 14th Amendment's distinction between citizens and persons which requires equal treatment of all persons and not just all citizens?
If you deny the plain meaning of the words of the 14th Amendment, there is no point in your responding to me. The law is what it is.
I practiced law for twenty-five years. The lawyers and judges whom Freepers reasonably rage against are those who are forever trying to twist the plain meaning of statutory or constitutional words.
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