Posted on 11/18/2010 8:20:29 AM PST by SmithL
WASHINGTON – As one of its first acts, the new Congress will consider denying citizenship to the children of illegal immigrants who are born in the United States.
Those children, who are now automatically granted citizenship at birth, will be one of the first targets of the Republican-led House when it convenes in January.
GOP Rep. Steve King of Iowa, the incoming chairman of the subcommittee that oversees immigration, is expected to push a bill that would deny "birthright citizenship" to such children.
The measure, assailed by critics as unconstitutional, is an indication of how the new majority intends to flex its muscles on the volatile issue of illegal immigration.
The idea has a growing list of supporters, including Republican Reps. Tom McClintock of Elk Grove and Dan Lungren of Gold River, but it has aroused intense opposition, as well.
"I don't like it," said Chad Silva, statewide policy analyst for the Latino Coalition for a Healthy California. . . .
(Excerpt) Read more at sacbee.com ...
Tough noogies, Chad.
Chad Silva has a background in organized labor and personal experience with the role of Latino’s in the healthcare industry. As a union shop steward for a bay area labor union he assisted in helping the union management reflect the rank and file membership by promoting the election of its first Latino president.
Latinos: The Dirty Energy Proposition is Not for Us
Posted by Chad M. Silva, JD — Latino Coalition for a Healthy California at Jun 29, 2010 10:35 AM
Texas oil companies are investing millions of dollars in the Dirty Energy Proposition to repeal portions of California’s health and safety codes, some of the most comprehensive in the nation. This is dangerous especially for California’s Latino communities, not only because they are disproportionately located near polluting facilities, but also because many Latinos lack access to health care.
You are confused. Nobody says being arrested makes you a citizen.
If you can be arrested then you are, by definition, subject to the jurisdiction of the law. The 14th says that if you are here and have a child then your child is a citizen.
I never said it made someone a citizen. Good grief. Learn to read.
The Constitution said that if you are born in the borders of the United States and are subject to the jurisdiction of the United States, you are a citizen. Two criteria.
If you can be arrested and convicted and sentenced, you are subject to the jurisdiction of the United States.
Therefore, if you are born in the United States, and the United States can put you in jail, you are a citizen of the United States.
Both of those must be met.
A Diplomat’s child does not meet both of those requirements.
The child of an illegal alien who was born in the United States does.
That means we need to change the Constitution.
I’m all for it, but I doubt it’ll even get to the floor. There will be too many whining that it’s not fair or it’s not pc or it’s racial profiling or because they can’t keep their office without the illegal vote.
You mean like the one meant by the writers of the amendment? Nah, that would be crazy talk!
If civil law applies to you, if you can get arrested for committing a crime, then you are "subject to the jurisdiction".
Great. Remember that kid who was caned in Singapore... he (or at least his progeny) are citizens of Singapore since he was punished by them for his crime, right? All of those GIs and college students who found out how tough Mexican laws are when they got a little roudy in Tijuana are suddenly citizens of Mexico?
What you propose is your own opinion, not Constitutional nor International understandings of law.
You mean like the one meant by the writers of the amendment? Nah, that would be crazy talk!
If civil law applies to you, if you can get arrested for committing a crime, then you are "subject to the jurisdiction".
Great. Remember that kid who was caned in Singapore... he (or at least his progeny) are citizens of Singapore since he was punished by them for his crime, right? All of those GIs and college students who found out how tough Mexican laws are when they got a little roudy in Tijuana are suddenly citizens of Mexico?
What you propose is your own opinion, not Constitutional nor International understandings of law. This limited definition of "jurisdiction" is one formed while watching the Dukes of Hazzard.
I don't disagree with your interpretation of the 14th as written. However, the courts have disagreed. The question is then "who and "how" to enforce it? We can blog about it all day but that won't change it. In fact, Freepers have been stating "simply enforce it as written" as long as I can remember here but anchor babies are still being born daily. The Republicans can pass a bill saying "the 14th amendment means what it says" in the House but that won't change it either if the Senate and Obama won't go along with it. I don't see the addition of Sotomayor and Kagan being the tipping point to a change by the courts either. So what happens?
Bottom line, we've been arguing about what the courts should have done but have not accomplished any change in what they have done. Everybody wants to pull the anchor out. I say cut the anchor line in the meantime.
You have it right.
The concept “subject to the jurisdiction” was not limited solely to whether U.S. criminal laws applied. The record at the time, and subsequently, clearly indicates that language also meant “exclusive jurisdiction, and not subject to the jurisdiction of any other nation”.
If a Mexican illegally in the U.S. today visited the offices of a Mexican consulate and complained of torture or some other bizarre treatment by the U.S., you can safely bet the Mexican government would respond, if need be all the way to the U.N.
Once can ask, if Mexicans are not subject to the jurisdiction of Mexico, why does Mexico accept their return when they are removed from the U.S.?
All former black slaves are now dead and presumably so are their children. Thank you for your services, XIV Amendment. Job well done.
I do agree with your assertions with respect to "jurisdiction", but I'm not entirely convinced that the Constitution needs to be changed, although that would certainly eliminate all doubt.
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court decision that gave young Ark (a baby born to explicitly foreign nationals, US citizenship), the Court draws no distinction between someone here legally, or illegally. Why? Primarily because the concept of "illegal alien" wasn't quite as developed then, as it is today. In large part, the Court presumed that so long as you weren't a child of a diplomat, or the child of an invading army, then your parents were here "legally". In any event, that doesn't mean a future Supreme Court case couldn't draw that distinction. I think given the make-up of the Court, it's possible they could - although, Kennedy doesn't give me great confidence in this regard.
The Congress could also move to narrow that distinction, legislative. Surely, such legislation would be challenged, and either struck down or affirmed by the Court. So, back to your original point, this is going to end up back at the Court unless the Constitution is amended.
You are confused. Scenario: British couple is here on holiday... they have a child. Child is therefore not British (like his parents), it is American. Sorry, mom and dad.
Nonsense.
Simple changes can have a profound effect. This is one of them.
I see the defeatists here wondering how we could turn this country around. Sometimes it’s a matter of knowing where to apply the pressure.
Pardon me for butting in, but the argument being made is with respect to the child born to the alien, not the alien. So, your comparison to the Singapore kid is way off (not to mention we don't have a Singaporean constitution to reference). But let's assume Singapore has an identical constitution to ours. No, the Singapore kid would not be their citizen. However, if through the miracle of science, the young man were to give birth between lashes of the cane, the little miracle would in fact be a citizen of Singapore. At least, that's the argument. I can see both sides, but I tend to lean in favor of this view.
Give me a break!
This is your logic?
No one said that getting arrested made you a citizen. You are an absolute moron if you believe that. Your assertions are weak and without merit so you attempt to create strawmen to rail against.
Something from DU, not Freerepublic.
See my answer in post 62. This is complete idiocy and we are the only country on the planet with this citizenship-debasing mindset.
I’m thinking there was a Supreme Court case that stated that benefits couldn’t be denied to illegal aliens.
Plyler v. Doe. Yes, such a case exists. It held that Texas could not deny public education to an illegal alien minor child.
Moreover, today MANY illegals file tax returns, legally. And, MANY of those filing claim dependent children, and many of them then qualify for the associated child credits. IOW, we - the FedGov - are actually subsidizing the aliens to be here through the child credit, and any other federal tax credit for which they'd qualify.
The total amount must be valued in the billions, perhaps hundreds of billions each year.
The last refuge of a flailing mind. :)
No one said that getting arrested made you a citizen.
My arguments are specific to the word "jurisdiction." Being "subject to jurisdiction" is more than simply being able to be arrested. My wife and I can be arrested in the UK, but my child born in prison doesn't automatically get British citizenship simply by virtue of my ability to be incarcerated.
Jurisdiction, in this usage, is about allegiance and loyalty as understood by the sponsors of this Amendment. My examples are taking an extreme position, but have a point to make. If breaking our laws confers citizenship (illegally crossing our borders to have children) then our citizenship is worthless.
Look, I understand where the courts have taken us with respect to the language in this Amendment. But just as they were in Dred Scott, Kelo and many others... they are wrong. It's going to take patriots with backbone to get it changed to what it was meant to be... what its writers and sponsors intended according to their own arguments.
We are the only country on Earth that holds its citizenship so cheap as to give it to all comers, regardless of parental allegiances. It was never meant to be this way.
I do like your idea for changing the Immigration and Nationality Act, I just hate to see us hand the liberals a stick to beat us with. Rather than having to defend ourselves against lines likes “Those evil conservatives want to take away their rights”, I’d much prefer to make them play defense by pointing out “They have no rights. If you think that’s unfair then change the Constitution.”
Birthright citizenship is the law right now in the U.S., it's always been the law, and I'll be very happy if they change it. I've known about this since the sixties, I wanted this changed even then. But there has been no serious interest until now.
The UnConstitutionality of Citizenship by Birth to Non-Americans
The passage of this bill would help to prolong this Republic, and therefore, should be considered and enacted with great speed.
Remind me not to rely on any legal briefs written by P.A. Madison.
No, but being arrested for it does make you subject to our jurisdiction.
This issue is an absolute winner for the GOP.
"Jurisdiction" and "allegiance" are two different concepts.
And I thought duels had already been outlawed.
; )
Nobody is suggesting that it is. But 'subject to the jurisdiction' means subject to our laws and liable for penalties for breaking those laws. That exists regardless of national origin. I read the phrase 'subject to the jurisdiction of' in the 14th Amendment as meant to exclude diplomats, foreign heads of state, prisoners of war, and any other person not answerable to our laws.
“Since it is not part of the text, we have some “wise latina” trying to ascertain the meaning of the amendment, and she will not look at “original intent”. “
That is a problem. But the 14th was written in the 1860’s. I cannot criticize Sen. Howard for not anticipating the supreme court would become the fist of radical left-wing activism. You cannot draft legislation or amendments to prevent judicial bad-faith.
Not in this context. Your argument isn't with me, it's with the sponsors of the Amendment.
Funny. I read the phrase through the intent of the Amendment's sponsors and THEY also excluded foreigners and aliens.
I will again link to this article by P.A. Madison. I am not linking to it as endorsement of him (I don't know him) but he has put together a very good synopsis of the Congressional arguments made at the time of the Amendment's adoption. You can argue with them...
Or, heaven forbid, a little common sense.
Madness.
What they said and what they meant appear to be two different things.
Ok, let's play a Constitutional word game... what does "Regulated" mean in the context of the 2nd Amendment? (Don't worry... if you play along, I will tie it in...)
I read Mr. Madison's article. I found it wanting, both factually and in its conclusion.
First, despite the intent of Howard, there were PLENTY of voices that were heard during debate on the proposed amendment from legislators that knew full-well what the practical consequences of such an amendment would be. There's a book called The Fourteenth Amendment: from political principle to judicial doctrine that nicely fleshes out the debate leading up to the ratification of the amendment. In the book, many Senators and Congressman are quoted lamenting the fact that the Amendment would give birthright citizenship to everyone and anyone (save for children of diplomats and invading armies), who was born in the country. You can see some of this recounted in the book here. One Senator (I believe from Pennsylvania) rails that the Amendment would give citizenship to the children of "trespassers and gypsies". He was right.
Moreover, Madison misses completely the relevant case law. And, you cannot have a discussion of constitutionality, absent the relevant case law. He says in his concluding paragraph...
In a nutshell, it means this: The constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American borders. It is the allegiance (complete jurisdiction) of the child's birth parents at the time of birth that determines the child's citizenship--not geographical location
This completely ignores United States v. Wong Kim Ark, 169 U.S. 649 (1898). In that case, Gray in writing for the majority, says this about Ark...
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.Order affirmed.
emphasis added
I suppose Mr. Madison is entitled to his opinion, but his opinion is CLEARLY wrong, as is demonstrated by the central legal holding in Ark.
While the Congress remained in Republican hands, the interpretation of the Amendment was debated in the political process and remained on the side of the sponsors. That changed in 1874 when control shifted to the Democrats. The Democrats did as they do now; took the debate from the political process and adjudicated it in the courts. The intent of the Amendment (in this regard) was changed by the court in the case you cited.
In fact, this transfer of the political debate to judicial fiat is the point of the book you cited and decried as a problem by its author. The book doesn't praise the fact that the Amendment has been abused in the courts, the book shows how the Amendment's interpretation changed through this process.
So, I stand by the fact of what the Amendment's sponsors intended while yielding the point of what we got. Thank you for the reminder.
Were the parents of Wong Kim Ark in the US legally? I think they were.
Pity that language wasn’t included in the 14th Amendment.
They were, but that's not material to the Ark decision as the opinion is written, as it's not a relevant fact addressed in the Ark decision. While you might argue that it's implied (dicta at best), it's clearly not part of the central legal holding, and legally speaking, that's all that matters.
So, you could certainly assert that argument in a new case, and as compelling as it might be, the lower Court would not be bound by such an argument based on Ark. In other words, just because they (they parents) happened to be here legally, does not mean that the decision is necessarily exclusive of illegals.
In other words the legal question of birthright citizenship for children of illegals hasn’t been conclusively settled.
Yes. That's absolutely accurate. It is unsettled law. I don't think anyone with even a remedial understanding of constitutional law would disagree.
Thats a relief 'cause I'm lacking even that.
Now all that remains is for someone to file a class action lawsuit on behalf of the citizenry before BO has an opportunity to replace the SCOTUS swing vote with a nutroot marxist academic.
Seems like many here do not know exactly what they think they know? I would think that those who crafted the wording knew what it meant? Maybe agreeing with the intent rather that the judicia1 activist reinterpretation is what is needed here?
The UnConstitutionality of Citizenship by Birth to Non-Americans
We are, or should be, familiar with the phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This can be referred to as the citizenship clause of the Fourteenth Amendment, but what does "subject to the jurisdiction" mean? Jurisdiction can take on different meanings that can have nothing to do with physical boundaries alone--and if the framers meant geographical boundaries they would have simply used the term "limits" rather than "jurisdiction" since that was the custom at the time when distinguishing between physical boundaries and reach of law.
Fortunately, we have the highest possible authority on record to answer this question of how the term "jurisdiction" was to be interpreted and applied, the author of the citizenship clause, Sen. Jacob M. Howard (MI) to tell us exactly what it means and its intended scope as he introduced it to the United States Senate in 1866:
Mr. HOWARD: I now move to take up House joint resolution No. 127.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.[1]
It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil, something our courts have wrongfully assumed. But what exactly did "subject to the jurisdiction thereof" mean to the framers of the Fourteenth Amendment? Again, we are fortunate to have on record the highest authority to tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:
[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.
Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.[2]
Sen. Howard concurs with Trumbull's construction:
Mr. HOWARD: 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.[3]
In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now. Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:
Ping!
Nobody is suggesting that it is. But 'subject to the jurisdiction' means subject to our laws and liable for penalties for breaking those laws. That exists regardless of national origin. I read the phrase 'subject to the jurisdiction of' in the 14th Amendment as meant to exclude diplomats, foreign heads of state, prisoners of war, and any other person not answerable to our laws. ******
Okay, and my point is that it is a fallacy to necessarily equate U.S. jurisdiction over illegal alien inmates who are imprisoned for breaking U.S. laws while in the U.S. (clear jurisdiction) with the jurisdictional requirement set forth in the 14th Amendment as it relates to illegal aliens who "happen" to birth babies on U.S. soil (muddy jurisdiction at best).
I do not believe that valid comparisons can be made with respect to the term "jurisdiction" in the respective situations. Separate laws and legislative histories exist for each set of facts, and this thread is about anchor babies.
With that said, it boggles my mind that anyone could argue with a straight face (this is not aimed at you) that the drafters of the 14th Amendment INTENDED to allow illegal aliens to crawl 1 foot across the U.S. border and birth a "U.S. citizen".
^^^ ABOVE POST SHOULD SAY: “...as it relates to babies of illegal aliens who happened to be on U.S. soil at the time of birth.” (muddy jurisdiction at best).
"I don't like it," said Chad Silva, statewide policy analyst for the Latino Coalition for a Healthy California...Thanks SmithL.
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