Citizenship-By-Birth Faces Challenges

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."

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."

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."

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."

Wong supersedes Elk. And in any case, those cases didn't deal with the children of illegal residents of the United States. What little precedent has been set on the matter seems to suggest that the court rules in favor of citizenship for children born in this country, parentage notwithstanding.

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.

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)

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.

How does one legally become just a state citizen and not a US citizen? Especially after having paid income tax, property tax, et cetera?

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, I’d 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.

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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)

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]

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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.

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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.

As much as I would like to post the court documents, I have yet to find them in their entirety on the web.

I couldn't find it either, but I did find this synopsis.

http://www.jrank.org/cultures/pages/4298/People-v-de-la-Guerra.html

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.

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.

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?

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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.

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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

All persons living in the jurisdiction of the U.S. ( except diplomats) are subject( are held accountable) to our laws . Does it make anyone in our jurisdiction a citizens( owes allegiance to ), of course not. This is the problem , you are still confusing a SUBJECT( citizen) with anyone held accountable for ( subject). This concept that children of illegals is fairly new ( 1980’s). In the 1950’s the U.S. deported over a million illegals and their children ( born here) as they were not ‘granted’ citizenship. If what you believe is true about the 14th amendment , why has it not been allowed until the 1980’s? The Supreme Court has always stated that allegiance is required to be a U.S. Citizen. The court has always stated that allegiance is gained from your parents. Recently a low court did draw the ame conclusion as your post, but no court even the Supreme Court has the authority to over rule the U.S. constitution.The only Constitutional thing that counts is the original intent of the founding fathers And I think you know from your posting what they felt about children of illegals.

National citizenship MUST emanate from that of the State because it was the States that created the federal government.

Here's what Joseph Story says about that:

Thus the laws of a single state were preposterously rendered paramount to the laws of all the others, even within their own jurisdiction. And it has been remarked with equal truth and justice, that it was owing to mere casualty, that the exercise of this power under the confederation did not involve the Union in the most serious embarrassments. There is great wisdom, therefore, in confiding to the national government the power to establish a uniform rule of naturalization throughout the United States. It is of the deepest interest to the whole Union to know, who are entitled to enjoy the rights of citizens in each state, since they thereby, in effect, become entitled to the rights of citizens in all the states. If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.

§ 1099. It follows, from the very nature of the power, that to be useful, it must be exclusive; for a concurrent power in the states would bring back all the evils and embarrassments, which the uniform rule of the constitution was designed to remedy.

The states created the federal government, and once the federal government was created the relationship between the federal government, the states, and the people changed. We are citizens of the United States and residents of the state in which we reside.

No, you have a right to work. Texas is still a 'right to work' State.

So is California. Having the right to work does not change the fact that working for pay is still a choice, one may exercise that right or not.

There is great wisdom, therefore, in confiding to the national government the power to establish a uniform rule of naturalization throughout the United States.

That's right. The federal government was given the enumerated power to make a uniform rule of naturalization....NOT the authority to arbitrarily bestow citizenship.

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The states created the federal government, and once the federal government was created the relationship between the federal government, the states, and the people changed.

THAT is what attempts to turn the Constitution upside down.

The act of creation is what determines the legal hierarchy. That has been acknowledged since Blackstone - that which you create, you have a right to control

It's what gives us the legal right to our property - we created it. It's what gives us the legal right to our children - we created them. The same law of creation is what gives the States the right to control the federal government.

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We are citizens of the United States and residents of the state in which we reside.

ONLY if you are subject to its jurisdiction. Do you know what 'subject to the jurisdiction thereof' really means?

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Having the right to work does not change the fact that working for pay is still a choice, one may exercise that right or not.

I'm sorry, but that's ludicrous. The idea you DON'T have a right to work is like saying you don't have a right to live. One is so dependent on the other there is no way to separate the two.

From the first legal treatise written after Radification and used as evidence in the recent District of Columbia v. Heller RKBA case;

By equality, in a democracy, is to be understood, equality of civil rights, and not of condition. Equality of rights necessarily produces inequality of possessions; because, by the laws of nature and of equality, every man has a right to use his faculties, in an honest way, and the fruits of his labour, thus acquired, are his own.
View of the Constitution of the United States

Your perception is wrong on a couple of points, the most egregious being the statement that “no court ... can override the Constitution.”

The Supreme Court routinely “overrides” the Constitution as a matter of course, in that, following Marbury vs. Madison, the Court decided that it INTERPRETED the Constitution, and that its interpretation then becomes the law of the land.

Your opinion on the citizenship of foreign parents does not matter one iota. The letter of the law — in this case, the Fourteenth Amendment — does not matter one iota. The only thing that matters is the final decision of the Supreme Court. And even then, the precedent can be superseded.

The Court has not ruled on this issue directly, but where it has handed down dicta, they lean toward inclusion.

Arguing this on the basis of the Citizenship Clause of the Fourteen Amendment is an uphill fight. I think it will take a test case to force the Court’s hand and in my estimation, it’s a 60-40 chance against us.

I don’t like it, but the law doesn’t care about MY opinion one iota either.

The act of creation is what determines the legal hierarchy. That has been acknowledged since Blackstone - that which you create, you have a right to control

Hmm - I think I'll try that one on my adult daughter. Of course I raised her to be independent and think for herself so it may not work. (lucysmom, who remembers having those discussions with her when she was a teenager)

Unfortunately, that argument would only apply to the original 13 states - the other 37 were created by the federal government. At the time the Constitution was written most of the territory that would become new states didn't even belong to the US; some was acquired by treaty following war, and some was purchased - both were acts of the central government.

Further, Section 3, Clause 1 of the Constitution gives Congress the right to admit new states to the Union: New States may be admitted by the Congress into this Union...

Finally, the states agreed to transfer certain powers to the federal government when they ratified the Constitution. Ask anyone familiar with patent and copyright law if control of one's creations can be transfered.

I'm sorry, but that's ludicrous. The idea you DON'T have a right to work is like saying you don't have a right to live. One is so dependent on the other there is no way to separate the two.

Tell that to the currently unemployed. You have the right to work if you can get it.

Unfortunately, that argument would only apply to the original 13 states - the other 37 were created by the federal government.

Doesn't work that way. The district of Columbia is not a State for a reason. New States may be admitted by the Congress, but the Congress is nothing more than the representatives of the States.

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Finally, the states agreed to transfer certain powers to the federal government when they ratified the Constitution.

That's true, but those powers NOT enumerated cannot be exercised. It's called the rule of exclusion.

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Ask anyone familiar with patent and copyright law if control of one's creations can be transfered.

They can be legally transferred with knowledge, consent and full disclosure, yes, but we're not talking about patents of copyrights, we're talking about the Right of the People to their wages of labor.

BTW - the original definition of inalienable is nontransferable

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Tell that to the currently unemployed. You have the right to work if you can get it.

You have a right to work, but it does not come with an obligation to be hired.

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Hmm - I think I'll try that one on my adult daughter.

You may be as flippant as you like, Ma'am, but the Founders designed our country to operate under a certain set of immutable Laws that operate outside the control of Man.

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If you would be so kind, I'd appreciate your answering 2 simple questions-

Where does all legitimate authority for government come from?

Does an individual person have the legal ability to take money from another individual?

...we're talking about the Right of the People to their wages of labor.

Actually we're talking about citizenship by birth...

Here is a view presented by the guy who literally wrote the book.

Every employee of any company involved in American commerce is also a provider of a service, and, as such, the employee incurs a tax liability as a result of his or her work. This tax liability is incorporated into what the employee charges the employer for their services, and is eventually incorporated into the final retail cost of the employer's product or service. Each employee is essentially a separate business entity providing a product, be it physical or mental labor, to the employer.

...when business and personal income and payroll taxes disappear, your employer is going to have to make a decision. He will either take some or the entire amount he had been withholding for federal income and payroll taxes and add it to your weekly check, or he will readjust your pay figures so that your entire paycheck will be equal to what you used to call "take home pay"...

http://boortz.com/nuze/200509/09152005.html

So, according to Boortz, the money your employer withholds for taxes isn't exactly YOUR wages, but is your tax burden you passed on to your employer and that your employer will pass on to his customers in the price of a good or service.

He argues that if income taxes and payroll taxes went away your employer could rightfully retain that portion of what you think is your wages for himself because you no longer have that tax burden to pass on to him - it is his money, not yours.

(I don't necessarily agree with Boortz, I certainly don't support his tax plan.) Where does all legitimate authority for government come from?

Depends on what theory you ascribe to.

Does an individual person have the legal ability to take money from another individual?

Of course individuals have the legal ability to take money from another individual. Isn't that what lawsuits are about?

Ma’am, if you think the words of Neal Boortz has more veracity than the words of Joseph Story and George Tucker, the you obviously believe in a ‘living’ Constitution, and I bid you good day.

You may be as flippant as you like, Ma'am, but the Founders designed our country to operate under a certain set of immutable Laws that operate outside the control of Man.

Certainly the interpretation of those "immutable Laws" has changed for us women since the writing of the Constitution. If they hadn't, you and I would not be having this conversation on a public forum, and our wages would not belong to us, but to our husbands.

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