Replies

Let me begin by saying that I have a law degree, and practice in the field of immigration law. I graduated from Tulane Law in 08 and practice in the field of immigration law. I’m currently an Associate with the Lawrence B. Fabacher Law office in New Orleans. You can look it up, our offices are on Canal Street.

I do not mean any disrespect or have any intention to belittle anyone when I assert my qualifications, I simply would likely to lend what insight I can to this discussion.

Ok lets be clear, when we are discussing citizenship, there essentially two ways in which a person can be born a US citizen. The First is through what is known as Jus Soli, or the “law of the soil” in latin.” In 1608 a case before the House of Lords in England, in a matter known as Calvin’s case, it was declared that no principal was more firmly established in the common law than that a person who is born on territory subject to the sovereignty of the Crown, was a subject of the Kingdom of England. For Modern purposes this would be what we consider citizenship. Now one thing that needs clarification is the value of precedence in a Common law country. Under a common law system, as opposed to system of a civil code, many areas of the law are unwritten and established by Judcial precedent. The house of lords at that time was the highest Court in England, and until very recently possessed the authority to pronounce what the King’s law was. This similarity is important because when we address here in a moment the American law of Jus Soli, its important to keep in mind that the Supreme Exercises an Analagous power with regards to interpreting the US constitution. What is important to state for our purposes here is that even in 1608 the concept was so firmly embedded in the common law that the Judges in that case were surprised they even needed to restate it.

When English settlers came to America they brought with them Common law of their homeland. Now to be absolutely crystal clear, the common law of England is not in the literal sense “foreign law” as been asserted above. In the early days of American jurisprudence American courts literally looked to English precedence to decide how to interpret the Common law after independence. When deciding how to interpret provisions of the Constitution, the Supreme Court and Justice Scalia in particular, are fond of looking at how those concepts were construed under the English common at the time of the founding. One need only look to the right of a trial by jury, embedded in the common law, guaranteed by the bill of rights. While that is not to say that important differences in American Common law and English law have not developed in the 200+ years since independence,that not immediately relative for what we are discussing here.

Now to get to the point concerning Jus Soli. The concept was adopted in early American Courts as part of the common law. By 1830 no fewer than five state supreme courts and the US supreme courts had referenced and established the right of birthright citizenship. Indeed the first immigration laws passed by the US congress made no reference to the Jus Soli as the legal philosophy at the time implied no need to supplement by statute those doctrines were firmly established by the Common law.

At this point, as a previous poster has stated, the United States Constitution does supersede any conflicting rule of rule under the Supremacy clause. The original constitution made no mention of birthright citizenship. As basic matter of statutory interpretation it is improper that were a statute is silent as to a particular situation as one of the most basic foundations of the Common law is that that which is not forbidden is permited. Congress is given explicit authority to regulate the authority to regulate the procedures for naturlization. On its own this would not be particulary insightful, unless one reads it in conjunction with the 9th and 10th amendments. The 9th states that the explicit listing of rights in the bill rights should not be read as exhaustive or to disparage and the 10th states that those powers not given to the federal government are reserved to the states or to the people directly. One might draw a reasonable inference from that the “birth-right” to citizenship should not be interpreted as nonexistent, and further logical analysis might suppose that such a birthright was reserved either to the states or to the people directly. While subsequent case has severally diminished the practical effect of the 10th amendment, the logical coherency would stand. With the alone exception of a dissent in the Dredd Scott case, no binding court opinion issued prior to the adoption of the 14th amendment stated that states had the power to resend citizenship acuired through jus soli

Which brings us to the next question, did the 14th amendment change the jus soli or mainly codify it. Looking at the an alienage act passed prior to the 14th amendment, it adopts simliary the same language as that of the 14th. Further the necessity or the 14th amendment was based on citizenship stripping requirement passed after emancipation. If one looks at the historical propositions and arguments made for the 14th amendment’s citizenship provision, it suggests that the framers of that amendment were struck by the novelty of the citizenship provision. The phrase, subject to the jurisdiction thereof, is a term of legal art that refers children who are born to ambassadors, whose immunity imputes to their children. It was also originally construed to include Native American born on tribal lands, but congress has since granted them citizenship through statute. Indeed those cases are the only which deny the birth rights ever by the Supreme Court. To name but one an example, in one case regarding a Chinese child born to alien parents within the United States. At the time CA and the US government had laws prohibiting the naturlizarion of Chinese immigrants. While the Court stated that Congress powers on when and under what circumstances citizenship could be conferred by naturalization or parental heritage, it had no power to restrict the 4th amendments grant of citizenship to those born within the United States. There is, as far as such are possible on legal academics, a consensus that a child who received citizenship under ju solis would be naturally born.

The largest area of uncertainty is where a child is born outside the United States to citzen parents. In the law this concept is know as jus sanguinos or law of the blood. as above, congress may define the rules for acquiring citzenship. So to understand this, we need to look at what terms or conditions has set forth in where the facts are analogous to our own. Here the original poster has erroneously asserted that the marriage between a Obamas mother a citizenship and an alien denies him citizenship. This is blatantly erroneous as the be almost comical.

The Immigration and Naturalization spells out the circumstances in which citizenship is automatically granted at birth. The relevant section is INA 301. Under that article, a child born outside of the US to a citizen and an alien is a citizen at birth if the US citizen parent had been physically present in the use for any period amounting adding up to 5 years, at least two years of which were after the age of 18. Prior to her assignment in Indonesia, Obama had never left the country. Thus its fair to say she would meet the 5+2 requirement. Even if the alleged claims by birthers that Obama was not born US are true, he would nevertheless have been a us citizenship.

Whether he is a natural born citizen is a different legal matter. We have no literal ruling by the Supreme Court on this issue. The legislative history of the convention hold almost no information as to its adoption. We do have in the minutes statements establishing that the founders where worried about an invasion and assumption of foreign rules to the presidency. We do have one letter from Alexander Hamilton to a friend stating congress was concerned about the president being a citizen with no bond or blood ties to the nation. If the constitution is silent as to the definition, can we impute is meaning to context of other provisions. Remember there are three mechanism of acquiring citizenship , jus soli, jus sanguinos, and naturalization. The only distinction the constitution makes is between naturally born citizen and those who are not. If naturilized citizens are not naturally born, to which there is consensus and the plain meaning of the word born, then those who were “born” citizens should qualify. Children granted us citizenship through relation automatically gain the full measure of citizenship and no one can reasonably claim.
A few other closing points to note. First the anchor babies idea is blatantly in conflict with the entirety of the INA, and such a failure to make even a cursory glance of applicable law is odious to the lady. While it may be true that babies born to illegal/unlegal alien parents in the US through Jus Soli, such status would afford little comfort to the parent. Under the INA a child may not petition for his parents until he reaches 21. Does anyone really truly believe that a parent would endanger the lives of their child to cross a border just so 21 years later that child could petition for their parents to immigrate. Further that child, in order to petition for is parent would have to prove income or assets equal to 125 of the federal poverty line. Finally even if an immigration judge decides to withold removal of the citiens because of hardship to the citizen, in may cases that parent obtain work authorization.