Posted on 04/29/2010 1:49:52 PM PDT by SoonerStorm09
I think it's a perfectly justified position to believe that birthright citizenship be available through the principle of jus sanguinis, rather than jus soli, as is the case in many of our European allies.
When the Framers of the Constitution and the authors of the 14th Amendment wrote their respective laws, international travel was so cumbersome that I'm sure no one imagined that people would literally be crossing the borders to give birth to American citizens, as is a somewhat frequent occurrence today. Like so many other things, technology has complicated what was a previously uncomplicated provision of law.
I was just pointing out the somewhat disillusioned effort by a state senator to champion state legislation that precludes issuing birth certificates to "illegals", when as a matter of settled law, they aren't illegals, but US citizens.
“People who would not be ‘subject to the jurisdiction’ thereof would be foreign diplomats and soldiers of an enemy army, or so was opined in Ark.”
Remember that all four of the dissenters in Plyler v. Doe stated that the opinion was wrong headed simply because the court overstepped it’s bounds by doing Congress’ job!
At the time, the holding was unconstitutional because “...discrimination on the basis of immigration status did not further a substantial state interest.”
TODAY, looking at the continuing growth in the cost of a basic education in Texas, Arizona, etc... due to the continual increase in illegal immigrant children, I think it could EASILY be proven to be a “substantial state interest!”
Sorry, but any academic or historical notions about birthright citizenship must bow empirically, in my view, to the huge degree of abuse that occurs. “Birth tourism,” “anchor babies.” In many hospitals in border states, a plurality of infants are born to “undocumented” mothers with Spanish surnames. I maintain we should do what most developed nations do: infant gets mother’s status. But we’re never going to get a constitutional amendment, and I’m not sure what the policy fallback position is other than seeking better interdiction of illegals — and highly pregnant (legal) visitors.
Accepting that statement arguendo, the authors should have constructed their Amendment more carefully.
"“Subject to the jurisdiction” is a term that has been around for longer than Europe new of the North American continent! If has ALWAYS meant “allegiance to!” During the dark ages, if a knight plundered another kingdom and raped the queen of his conquered kingdom, his child was automatically “subject to the jurisdiction” of the KNIGHT’s King - because his allegiance followed the father!"
As compelling as that may (or may not be), that is not the applicable English common law that was cited in Ark, to wit...
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679.
Whatever the law was during the Dark Ages, sometime during the Elizabethan Age, things changed in England as witnessed in Calvin's Case, as it was later cited by Gray in Ark.
“In many hospitals in border states, a plurality of infants are born to ‘undocumented’ mothers with Spanish surnames.”
Heck, in many “friendly” countries, pregnant women would climb the embassy walls, or “visit” the embassy on or near their due dates so that her child was born on “American soil!” This has been happening for YEARS - all because one bad court decision actually ENCOURAGES foreigners to invade our country!
I don’t know. Logically, it would seem the State (any governmental entity) needs to keep track of people born within it’s jurisdiction. Maybe not. Perhaps we could issue BCs but not allow non-citizens to declare their child as a citizen. I agree, the law has been abused to the point that it needs to be done away with. But we should think of any unintended consequences.
Federal laws like this impose financial burdens on the states.
We are long past the mid point of the pendulum swing and its time for the states to actually make decisions that affect their citizens. The people in Washington are there for the people in Washington and nobody else.
BTT!!!
Do away with ‘dual citizenship’ as well!
The law is not settled. It has been misinterpreted.
“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.”
Senator Jacob Howard,
co-author of the citizenship clause of the 14th Amendment, 1866.
You need to look up the definition of "settled law". Ark was decided well over 100 years ago, and has been affirmed in a number of subsequent decisions and has never had any substantive challenge against it. Nothing could be more reflective of settled law more than Ark.
I have to laugh at people who say one thing, and then say - Hey, but that's not what I meant. Whatever it is Jacob Howard argued he meant when he co-authored the 14th, what the 14th actually says is plainly clear, or so has held in EVERY federal court that has looked at it.
As Gray spells out in painstaking detail, "subject to the jurisdiction thereof" had a specific import at the time it was used in the 14th, and that import included "aliens" who were not diplomats or members of an foreign enemy army under arms.
I'm familiar with the Howard quote that you reference. It's excerpted from the Congressional Record during the debates on the 14th Amendment. I would recommend that if you're really interested, you should read the entire Congressional record during the debate. From those records, it's clear that whatever Howard intended, the contemporary opponents of the 14th (and there were many) knew full well what the practical application and result of the 14th's language "subject to the jurisdiction thereof" would be. The opponents knew that language would specifically allow alien children born in the US (not of diplomats) to be US Citizens at birth.
Those records (which are now called the Congressional Record) were cataloged in a publication called The Congressional Globe. They may be found starting here. You can see from the text that PA Senator Cowan is taking tremendous issue with the proposed Amendment because he knows full-well that it will extend citizenship to all children born in America (save for diplomats) irrespective of the status of their parents. He even uses the phrase "commit trespass" when referring to the Gypsies that plague his own state. Honestly, Cowan is remarkably prescient with with his predictions - every he envisioned has come to pass.
I'm all for changing the criteria for birthright citizenship, but I don't believe - despite some well-articulated scholarly arguments that I've read - it can be done without another Constitutional Amendment partially repealing or refining the 14th.
Such as?
The article is a typical reporterette thin piece. But I’m guessing: if we don’t issue a BC, then what does the State issue? A COLB? Just wondering. Does this then change the definition of a BC? I always thought the idea of “vault” copy vs. release copy was messy, but I don’t know details of how the State handles that. Maybe someone who has adopted children know.
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