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 ...
“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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