Skip to comments.Citizenship-By-Birth Faces Challenges
Posted on 05/27/2010 4:32:12 AM PDT by Altura Ct.
If you're born in the U.S.A., you're an American citizen. Some lawmakers, however, plan to challenge that basic assumption.
In what might be the next great flash point in the nation's ongoing debate about immigration policy, legislation has been introduced in Congress and a pair of states to deny birth certificates to babies born of illegal-immigrant parents.
"Currently, if you have a child born to two alien parents, that person is believed to be a U.S. citizen," says Randy Terrill, a Republican state representative in Oklahoma who is working on an anti-birthright bill. "When taken to its logical extreme, that would produce the absurd result that children of invading armies would be considered citizens of the U.S."
Bills to challenge the fact that citizenship is granted as a birthright in this country have been perennial nonstarters in Congress, although the current legislation has 91 co-sponsors. As with other issues surrounding immigration, however, some state legislatures still might act, if only in hopes of bringing this issue before the Supreme Court.
"That was the primary purpose of the bill, for someone to sue us in federal court, and let's resolve this issue once and for all," says Texas state Rep. Leo Berman, a Republican who has introduced a bill to deny birth certificates to the newborn children of illegal immigrants. "I believe we are giving away 350,000 citizens a year to children born to illegal aliens."
What The Constitution Says
Berman faces an uphill battle. For more than a century, courts have held that citizenship is granted to anyone born within the territory of the United States.
The 14th Amendment, which was ratified in the wake of the Civil War, overturned the Dred Scott decision, clarifying that the children of former slaves were citizens and entitled to constitutional protections: "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."
Since then, courts have made it clear that this applies to the children of American Indians, visiting diplomats and Chinese guest workers, among other groups. The principle of birthright citizenship has never been successfully challenged, according to immigration lawyers.
But the federal courts have never specifically addressed the question of whether children born to those in the country illegally should be entitled to citizenship, says Michael M. Hethmon, general counsel of the Immigration Reform Law Institute, which favors tighter restrictions on immigration and has advised the state legislators on their efforts.
Berman says the 14th Amendment was meant to clarify the status of freedmen and "does not apply to foreigners. The 14th Amendment, which is being used to provide citizenship, is the last thing that should be used."
Subject To What Jurisdiction?
The authors of the 14th Amendment, he argues, intended to make citizenship contingent on allegiance to the country. The congressional debate at the time makes it clear that this did not apply to foreigners, Berman says.
"There cannot be a more total or forceful denial of consent to a person's citizenship than to make the source of that person's presence in the nation illegal," Lino A. Graglia, a professor at the University of Texas law school, wrote in a law review article last year. "This would clearly settle the question of birthright citizenship for children of illegal aliens."
Opponents to granting birthright citizenship often grab hold of the phrase "subject to the jurisdiction thereof," saying that those in the country illegally are by their nature not subject to the jurisdiction in question, whether it's the U.S. or a particular state.
Many other lawyers say that's a false reading. "Of course they're under our jurisdiction," says Michele Waslin, senior policy analyst with the American Immigration Council, which works to protect the legal rights of immigrants. "If they commit a crime, they're subject to the jurisdiction of the courts."
'Who Is An American?'
Not every nation grants citizenship as a birthright. Sometimes it is an inheritance from one's parents, based more on blood than land.
But challenging the traditional expectation that anyone born within the physical territory of the U.S. is automatically a citizen represents a "major change in a bedrock principle that has lasted for decades," says Karen Tumlin, managing attorney for the National Immigration Law Center, a public interest legal group based in Los Angeles.
"It's a core American belief that those who are born here get integrated into our society, no matter where your parents are from," she says. "This would be an erosion of the core principles about who belongs in this country."
That's precisely the argument opponents of birthright citizenship want to start. If a law denying birth certificates to the children of illegal immigrants passes and it's written in such a way that it gets argued in federal court, rather than being dismissed out of hand it will have more of a "galvanizing effect" than the recent passage of a strict anti-immigration law in Arizona, says Hethmon, general counsel of the Immigration Reform Law Institute.
"All the interested parties, which in the case of birthright citizenship includes everyone in the country, would have to respond to it, either supporting it or opposing it," Hethmon says. "Who is an American? If that question can't be answered, it's hard to conceive of a greater constitutional crisis for a democratic republic."
“When taken to its logical extreme, that would produce the absurd result that children of invading armies would be considered citizens of the U.S.”
God help you, sir, and everyone else, to understand the illegals ARE an invading army.
This is a PERFECT example of WHY we don’t need a “living” constitution and why Original Intent is essential.
Get pregnant, sneak into the U.S., have your kid here and you, its father, and assorted relatives get an in.
About damn time. Actually, decades too late, but better late than never.
IMO, if the wad was fired from an illegal, then the resulting little bastard is also illegal. “Fruit of the poisonous tree” don’tcha know.
Yes they are born citizens... but then that citizenship is stripped from them!
No constitutional amendment required.
No, the 14th Amendment attempted to take the original power of creating equal rules for immigration and turn it into the ability to declare whomever they wanted to a 'citizen'.
It's a legalistic ILLUSION in order to turn everyone in federal citizens. If it had meant only slaves it would have said so.
The problem is that the 14th tried to take our inalienable rights that are based in the State and turn us into administrative-based 'legal entities'....thus denying us access to our natural personhood and subjecting us to whatever the current crop of congress-critters decided to roll down the pike.
We went from this:
§ 1218. The inhabitants enjoy all their civil, religious, and political rights. They live substantially under the same laws, as at the time of the cession, such changes only having been made, as have been devised, and sought by themselves. They are not indeed citizens of any state, entitled to the privileges of such; but they are citizens of the United States. They have no immediate representatives in congress.
Joseph Story, Commentaries on the Constitution
"... a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that `citizen' means `citizen of the United States,' and not a person generally, nor citizen of a State ..."
U.S. Supreme Court in US v. Cruikshank, 92 US 542: (1875)
Ever wonder why they say taxes are 'voluntary'? Because we voluntarily claim to be citizens of the United States
Ever wonder why illegals are 'special'? Because they are NOT citizens of the United States, they are still state-based 'persons'.
WAKE UP PEOPLE!
We are helping to destroy our country by giving the federal governemnt a authority it was never intended to have. As long as the People aquiesce to being under federal juristiction, the States are helpless to do anything to rein in federal power.
The solution is very simple and direct. Get a court case going that is high quality enough for the US Supreme Court to consider and rule on. All we need is a favorable Supreme Court ruling to change the 14th Amendment interpretation. Nothing more than that. You don’t need a Constitutional Amendment.
I can just imagine illegal aliens and their backers protesting such a decision. The American people will laugh because it is common sense you don’t give illegal alien babies automatic citizenship. May not be legal sense yet, but it is common sense
To strictly construe the letter of the 14th Amendment, children of illegals are citizens. They meet two of the requisite criteria:
1). They are born in the United States;
2). They are subject to its jurisdiction.
If we interrogate the INTENT of the Amendment, the conclusion is far less certain.
However, doing so takes us out of the realm of strict construction and leads us down the path of relativism, the so-called “living Constitution” where we’re allowed to impute motives to men who have been dead for 150 years.
It’s an ideological dilemma whose simplest — but ultimately unworkable — solution is to clarify the Amendment.
The question is just who is authoriizing these drop and squat citizenships. Per Dr Eastman there is no Constitutional requirement, no court case, no statute and no executive order authorizing these citizenships. So then just who is doing it and how can we get it stopped without the American people having to jump through a lot of hoops to protect American citizenship.
“However, doing so takes us out of the realm of strict construction and leads us down the path of relativism, the so-called ‘living Constitution’ where were allowed to impute motives to men who have been dead for 150 years.”
We are not “imputing” the motives of men who have been dead for 150 years. We are reading their writings and the arguments which were made when this was introduced. They specifically mentioned citizens who had allegiance to other countries and other entities like Navajo Indians. We can agree that Navajo Indians were born in the US territories and states; however, they specifically mentioned that these children would NOT be American citizens!
The problem is that the liberals have used the “living Constitution” argument to change the original intent of this Amendment. We simply want to change it BACK!
And this IS “settled law.” But, I am not talking about the Wong Kim Ark supreme court ruling. Wong Kim Ark was dealing with LEGAL, NON-citizen immigrants. I am talking about the 1884, Elk v. Wilkins ruling which stated that the phrase “subject to its jurisdiction” was interpreted to exclude “children of ministers, consuls, and citizens of foreign states born within the United States.” If the Wong Kim Ark ruling was bedrock, then why was the Citizens Act of 1924, necessary? That act gave citizenship to American Indians!
Pre-eminent Arizona Sen Russell Pearce, author of the state's immensely successful immigration bill, now wants to End Citizenship by Birthright.
GOV BREWER ---- the new symbol of American can-do.
Supermodel and gov Jan Brewer.
Rally for Arizona! (Tea Party Rally for Arizona going nationwide)
Wake Up 1776 ^ | 22 May 2010 | John Smithers
FR Posted on Saturday, May 22, 2010 by FloridaBattleGround
Contact email@example.com for details.
Starts June 8th in Orlando and ends in Phoenix on June 12th. Need maximum participation because Arizona needs our help. They are getting hammered in the media.
Please make some signs for the rally that read:
JAN BREWER FOR DEPT OF HOMELAND SECURITY SECY.
RUSSELL PEARCE FOR SECY OF STATE.
So are the Muslims, illegal or not.
PRES TEDDY ROOSEVELT: "There can be no divided allegiance here. Any man who says he is an American, but something else also, isnt an American at all. We have room for but one flag, the American flag....... We have room for but one language here, and that is the English language ... and we have room for but one sole loyalty and that is a loyalty to the American people.
2008 McCains' Hispanic Outreach Coordinator, Juan Hernandez, Fort Worth, a dual citizen of the US and Mexico, and past member of Vicente Foxs Mexican government, is as open borders as you can get.
Hernandez, Fort Worth, once served as a cabinet member in the Mexican Government. Hernandez believes all illegal Mexicans and Mexican-Americans in the USA should become dual citizens and consider themselves Mexicans first, "to the 8th generation." Hernandez' book urges illegal alien invaders to become settlers in the USA for Reconquista---the Mexican plan to take back the SW.
McCain said he chose Hernandez because he agrees with his positions. McC sucked up to amnesty-pusher Hernandez (as Americans woke up to 5 million toxic mortgages fraudulently doled out to illegals that poisoned our economy forever). Hernandez, McCain's Hispanic outreach director, stated on national television that he is for the North American Union, and the Amero to replace the dollar within 10 years or so.
Juan Hernandez was born in Dallas and decided as an adult to become a dual-national Mexican citizen. His last verifiable job was serving in Mexican President Vicente Fox's cabinet as Vicente Fox's "American Reconquista Director." Hernandez then worked for Bush hater George Soros' international foundations---(one such foundation published Hernendez's book that taunts Americans).
QUOTING FORMER CONG TOM TANCREDO (R-Colo) Juan Hernandez headed up the Mexican govt agency, "Ministry of Mexicans Living in the United States. Hernandez is a dual citizen of the United States and Mexico, and a good friend of then-presidents Bush and Mexico's Vicente Fox." Hernandez was presidential candidate John McCain's Hispanic outreach man.
Hernandez explained to Cong Tancredo the purpose of the Mexican government agency: Ministry of Mexicans Living in the United States:
(1) to increase the flow of Mexican nationals to the United States.....
(2) to direct Mexican nationals in the US to serve Mexicos needs (like reconquista);
(3) to increase US remittances to Mexico of $50 billion a year (30% of the Mexican GDP);
(4) to get US jobs for an exploding Mexican population, alleviating Mexico's social instability due to rising unemployment;
(5) to get free US training for Mexicans, who are expected to return and repatriate those skills back to Mexico.
Hernandez, a dual citizen who resides in Fort Worth, supports amnesty: "By populating the United States with millions of Hispanics tied economically, politically and linguistically to Mexico, we are able to exert enormous influence and pressure on US policy and its dealings with Mexico."
NOTE: " Exerting enormous influence and pressure on US policy and its dealings with Mexico" means extorting billions of US tax dollars to subsidize corrupt Third World federales.
” “When taken to its logical extreme, that would produce the absurd result that children of invading armies would be considered citizens of the U.S.” “
They ARE an invading army!
B U M P
A very apt metaphor............. “taken to its logical extreme, that would produce the absurd result that children of invading armies would be considered citizens of the US.
Would you care to elaborate?
legislation has been introduced in Congress and a pair of states to deny birth certificates to babies born of illegal-immigrant parents
Really...nullifying illegal alien birthright is just one righteous Supreme Court decision away. Arizona’s rep Russell Pearce just might get that case going if his law passes
Godspeed to Pearce!
save for later
Not being familiar with all the abbreviations can cause one to come up with a whole host of words to fit the bill. :-)
May not be illegal, but for sure can't be citizens without denouncing Islam, because Sharia Law is superior to any manmade law. They can not possibly swear allegiance to the Constitution, and the Flag, because their religion prohibits that.
More likely he will wind up being charged with hate crimes. Nothing will happen to deter this progressive onslaught until we recapture the house and a 61 seat senate, and I don't see that happening, at least not in my lifetime.
“May not be illegal, but for sure can’t be citizens without denouncing Islam, because Sharia Law is superior to any manmade law. They can not possibly swear allegiance to the Constitution, and the Flag, because their religion prohibits that.”
Thanks for the (((((ping)))).Now as to the article I belive this part is 100% wrong:
I'm taking 'a break' after working 21 days straight and staring at 4:00 am today :-)
Since then, courts have made it clear that this applies to the children of American Indians, visiting diplomats and Chinese guest workers, among other groups.
I'm Positive that children of "visiting diplomats" born here are NOT US citizens. As their parent, the 'Diplomat' is NOT under, nor subject to, 'the jurisdiction of the USA'. They are "immune" (exempt) from all our laws and can only be asked to leave the country -- even if they murder a 6 year old boy live on the 10:00 o'clock news.
The same goes for 'adult' children of Diplomats. They can go on crime sprees and nothing can be done as they are also covered by their 'Diplomat' parent's immunity.(1)
So whomever did the research for Alan Greenblatt screwed up. Plus this is from NPR. Those left-wing moonbats would give US Citizenship to Mao, Stalin or Pol Pot.
(1) Would CSI Miami screw up on a fact of law? I don't think so.
They had an episode or two on that subject - of Diplomats and their criminal 'children'.
That doesn't make any sense.
Only if you reach the absurd conclusion that an invading army is subject to our laws.
When they ask are you a citizen of the United States, everyone says 'yes'.
Not that we really are.....it's just the reply our public school educations taught us to give.
The Founders repeatedly used the term Citizen of a State, as have several courts.
From the California Supreme court:
I have no doubt that those born in the Territories, or in the District of Columbia, are so far citizens as to entitle them to the protection guaranteed to citizens of the United States** in the Constitution, and to the shield of nationality abroad; but it is evident that they have not the political rights which are vested in citizens of the States. They are not constituents of any community in which is vested any sovereign power of government. Their position partakes more of the character of subjects than of citizens. They are subject to the laws of the United States**, but have no voice in its management. If they are allowed to make laws, the validity of these laws is derived from the sanction of a Government in which they are not represented. Mere citizenship they may have, but the political rights of citizens they cannot enjoy until they are organized into a State, and admitted into the Union.
[People v. De La Guerra, 40 Cal. 311, 342 (1870]
If you are a State Citizen, you are one of the People and have all you inalienable right attached.
If you claim to be a citizen of the United States, or a 'U.S. citizen', you are a subject, and government tells you what part of your property you get to keep.
Your posting shows exactly what the paroblem is :
The correct wording for the 14 th is Born in the U.S
AND SUBJECT TO THE JURISDICTION THEREOF
Liberals like to use the wording:
THEY ARE SUBJECT TO THE JURISDICTION.
These two sentences have opposite meaning. In the correct meaning of the 14 th. “SUBJECT” refers to a citizen having allegiance.
Any child born in America with allegiance to America is a citizen. Children of illegals have no allegiance to the U.S.
We were deporting children of illegals until the 1980’s when the INS decided it was too expensive to deport them. At no time was it offically stated that they are Constitutionaly citizens of the U.S. This has only been a unoffical policy by the INS( now ICE)
I would be grateful if you would provide a link.
As much as I would like to post the court documents, I have yet to find them in their entirety on the web.
However, the pertinent quote is referenced in "California Jurisprudence," by William M. McKinney, 1922 at footnote #16.
It can be found here at the bottom of page 744 and the beginning of 745.
There are three criteria for being defined as a citizen in the letter of the Fourteenth Amendment:
1) All persons ... born in the United States
2) All persons ... naturalized in the United States
3) All persons ... subject to the jurisdiction thereof.
The first two conditions are OR -- if one, the other, or both are met, the condition applies. Babies born in the United States, regardless of their parentage, qualify under the first condition. The second condition is an AND. It has to be met along with one or both of the previous conditions. Babies born of parents who are in this country illegally are still subject to the jurisdiction of the United States. Therefore, babies born in the United States, regardless of parentage, are citizens of the United States. That is a syllogistic conclusion that cannot be refuted by logic.
However, it does not take into account the INTENT of the authors of the Amendment, which, arguably, did not confer citizenship on the children of people in the country illegally, or of parents who were not themselves citizens. The courts would have to decide that matter, and precedent has not looked kindly on exclusion.
Don't shoot the messenger. I'm just telling you the realities. The law has little use for wishful thinking.
We may WISH that wasn't the case, but it seems it is.
However, a courageous Congress could test the precedent by passing a law that would clarify the exclusion. I'm sure the ACLU or La Raza or some other communist front group would be glad to challenge it.
Does that Hernandez book say “forward by Dick Morris”???
I can’t stand Hernandez...when ever I see him on TV I just want to wipe that sh*tfaced grin from his face.
How does one legally become just a state citizen and not a US citizen?
Especially after having paid income tax, property tax, et cetera?
If anybody has done this SUCCESSFULLY and avoided all the entanglements (income tax, property tax, etc.) without being thrown in jail, I’d love to know how they did it.
I ran into the “sovereign citizen” movement awhile back, in ‘93 or so... they never really came out and said what actually worked.
If somebody tells me, “don’t get your kid a birth certificate” I’d like to know how ANYBODY can get by in this day & age without one (Obama excepted, he’s got his own plane lol)
Is there any California court decisions more recent than 1870 that uphold the ‘state citizen only’ concept?
I’d like to know, I live in Calif.
BS, the courts ruled several times that tribal American Indians, though born in the US, were not "subject to it's jurisdiction: and thus were not US citizens. See Elk v. Wilkins, 112 U.S. 94 (1884) It took a law, in 1924, to change that, not a court decision. OTOH, they rules in United States v. Wong Kim Ark, 169 U.S. 649 (1898) that the child of legal resident aliens, born in the US, is a citizen at birth via the 14th amendment.
I cant stand Hernandez...when ever I see him on TV
I just want to wipe that sh*tfaced grin from his face.
Good question. One would suppose a legal notice would be required, filed in the county of residence.
If anybody has done this SUCCESSFULLY and avoided all the entanglements (income tax, property tax, etc.) without being thrown in jail, Id love to know how they did it.
Me too. I'm not saying my knowledge is perfect by any stretch of the imagination, but I've spent over a decade studying it going all the way back to when the colonies were being formed and coming forward in time to the present day and nothing I've seen makes me believe the Founders intended us to be beholden to federal, State, city and county governments COMBINED.
If somebody tells me, dont get your kid a birth certificate Id like to know how ANYBODY can get by in this day & age without one (Obama excepted, hes got his own plane lol)
There's the rub. Generations have gone by with Americans believing we all must obey the federal government. Tell 'em that they don't, and you're either a candidate for the funny farm or you get the 'deer in the headlights' look.
The only way not to be forced into providing your birth certificate is to work for yourself. [Although I did manage to get my twin girls through school without providing their social security number]
Is there any California court decisions more recent than 1870 that uphold the state citizen only concept?
Let's see. There's Alabama
"There are, then, under our republican form of government, two classes of citizens, one of the United States and one of the state".
Gardina v. Board of Registrars of Jefferson County160 Ala. 155; 48 So. 788 page 162 (1909)
And a quote from a North Carolina Supreme Court decision that was written down during the US Supreme Court's Wong Kim Ark:
State v. Manuel 20 NC 122
"... the term `citizen' in the United States, is analogous to the term `subject' in the common law; the change of phrase has resulted from the change in government."
Supreme Court Reporter Volume 18, page 462, 1897
There's some really good stuff about natural born and native born in this one too.
Sorry, I don't see anything else California specific, but I'm always poking around in musty old books. I'll keep an eye out for more.
I couldn't find it either, but I did find this synopsis.
As a final point, Kimberly asserted that the court's interpretation of the treaty's Article IX would conflict with the California Constitution. The latter, he argued, discriminates by race while Article IX does not; only white male Mexican citizens were allowed to be state electors under the California law. The court saw nothing wrong with this potential conflict: The possession of all political rights is not essential to [United States] citizenship .[I]t is no violation of the treaty that these qualifications were such as to exclude some of the inhabitants from certain political rights. Put another way, the court recognized that California, as a separate political entity of the United States, had the power to grant different rights to its citizens than the federal government might.
Seems to me that a citizen of any particular state is also a citizen of the United States, and that a state may grant different political rights to its citizens than the federal government does.
I don't see anything that would indicate, however, that state citizenship would have a darn thing to do with federal taxation.
I do believe that the "voluntary" notion of taxation has to do with the idea that the activity that results in taxation, work for example, is voluntary. In other words, if I wish to avoid federal taxes I may choose to keep my income below taxable levels. It has nothing to do with citizenship.
That's just it though.
National citizenship MUST emanate from that of the State because it was the States that created the federal government.
The Constitution denotes To make us all federal citizens WITHOUT the prior existence of State citizenship makes us 'subjects' of the federal government. When is the last time you heard the feds acknowledge State citizenship?
I do believe that the "voluntary" notion of taxation has to do with the idea that the activity that results in taxation, work for example, is voluntary.
No, you have a right to work. Texas is still a 'right to work' State.
The Founders referred to it as 'the wages of labor'......words which appear nowhere in the Constitution.
I don't know if you're familiar with Joseph Story. He was a Justice and wrote the third Commentaries on the Constitution in 1833. Although this excerpt concerns the commerce clause, the underlined items were NOT considered to be under the scope of the general government.
But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states.
Joseph Story,Commentaries on the Constitution
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