Does the Constitution really say that children of illegal immigrants are automatic citizens?

National Review ^ | 01/27/2011 | Katrina Trinko

[Anitius Severinus Boethius]

The court case that establishes this was Ark v U.S. in 1898. It wasn't a recent development, it's been established law for 112+ years now. It was decided about 30 years after the 14th Amendment was ratified, and by men who were around when it was talked about and debated at length.

Ark's parents were Chinese living in San Fransisco. He was born in San Fransisco around 1868. His parents were not citizens. They returned to China when he was a boy. In the 1890’s, Congress imposed immigration restrictions on the Chinese. Ark was denied entry in 1894 by the U.S., using the argument that since neither of his parents were citizens and he was a subject of the Emporer of China, he was not a citizen. He sued saying he was a citizen due to the language of the 14th Amendment.

The Supreme Court decided in his favor.

That is the law. If you want it to change, change the Constitution.

[Varda]

Personally I loath this line of reasoning because it's the same one that pro-abortion/infanticide forces use, (ie. that the baby is simply an extension of the mother). Fortunately under our law the baby is a person the moment he is born.

Therefore Anchor babies are a different issue than citizenship because the baby and the mother are two different persons. (also the idea that the mother is "entitled" to stuff from the government is a problem of socialism and has nothing to do with the constitution)

"The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S."

This isn't true. They knew the ramifications of the amendment and debated it's consequences.

"May 30 began with Senator Howard proposing to add the citizenship clause to § 1 of the Fourteenth Amendment as follows: "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."[138] This language was designed to settle the issue raised in Dred Scott — that is, who are citizens and thus have the bundle of rights appertaining to citizenship. After a raucous debate over making Indians, coolies, and gypsies citizens, the Senate passed Howard's language.[139]" http://www.constitution.org/col/intent_14th.htm

[r9etb]

Don't let this get in your way.

No kidding. The author somehow managed to write an entire damned article about the Citizenship clause, without actually quoting the relevant part of the 14th Amendment.

Wonder why?

The only possibly weasel-wording that could justify an answer of "no," would be some sort of argument involving the definition of "subject to the jurisdiction."

[HiJinx]

Ping!

[astyanax]

This has some great background: Birthright Citizenship and the Constitution

One conspicuous departure from the language of the Civil rights Act was the elimination of the phrase "Indians not taxed." Senator Jacob Howard of Ohio, the author of the citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that "Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States." Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States." Indians, he concluded, were not "subject to the jurisdiction" of the United States because they owed allegiance-even if only partial allegiance-to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically "subject to the jurisdiction" of the United States. And "jurisdiction" did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, "jurisdiction" meant exclusive "allegiance" to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of "jurisdiction," understood in the sense of "allegiance," "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."

[skeeter]

American indians weren't considered 'subject to the jurisdiction thereof' because they were not taxed, and so weren't considered citizens.

So much for that particular canard.

[SeekAndFind]

Smith is born in America to illegal immigrants. He grows to adulthood and commits a federal crime. At trial, he pleads that he is “not subject to the jurisdiction” of the United States and must therefore be released, or at most deported.

How do you rule?

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I rule that he is an ILLEGAL INVADER. What does America do to illegal invaders?

I would not mind putting him at Guantanamo and let him have his trial there.

[pissant]

At least they were her legally, unlike McCain’s lettuce pickers.

[astyanax]

"His parents were not citizens. "
But they WERE legal residents.
That's quite a distinction...

[skeeter]

His parents were here legally and so were subject to the jurisdiciation of the US.

[Anitius Severinus Boethius]

The problem with that argument was that there was no such thing as “legal” or “illegal” immigration status at that time.

Thus the problem with the language of the 14th amendment.

[skeeter]

I’m not sure I understand... how then was congress able to exclude Chinese from immigrating in 1882? That implies they were coming here on some sort of legal basis beforehand.

[astyanax]

"The problem with that argument was that there was no such thing as “legal” or “illegal” immigration status at that time."
"and of the State wherein they reside."
Here's one more phrase you'll have to ignore to justify your opinion.

[Cyropaedia]

His parents had registered. Thus they were legal.

The Framers of the Fourteenth Amendment explicitly said birthright citizenship belonged to those who were *completely* within the jurisdiction of the United States. They said that meant people who did not hold allegiance to any one else ( foreign governments/powers ).

The SC rulings in Slaughterhouse, and Elk vs. Wilkins, affirmed this had been the Framers intentions.

Wong is as convoluted, in its own way, as the Miller decision regarding gun control.

[Anitius Severinus Boethius]

Before that there were very few rules of immigration. The idea that people are mobile and travel frequently was pretty rare back in the early to mid 19th century. During the later decades, it became more common for people to travel back and forth between countries. Travel just became easier and more affordable. It was during this time that many of the first immigration restrictions were imposed upon the Chinese, the Irish, the Italians, the Poles, etc.

During this first rash of immigration “debates”, the Ark decision was handed down.

Read the arguments for those that sided with Ark and those that dissented in the opinion. You will be amazed at how close the arguments are on this thread.

But the law is the law and for 112 years this argument has been settled.

If we want it changed, we need to change the Constitution.

[astyanax]

"But the law is the law and for 112 years this argument has been settled."
Not even close.
The decision conferred birthright citizenship on a child of legal residents of the United States.
Trying to pretend that this also applies to illegal immigrants is dishonest.

[Anitius Severinus Boethius]

Have you read the decision? Seriously?

[astyanax]

Yes, the majority ruling leaves the premise extremely wide open, but the fact remains that there has not been a specific ruling on this (yet, although I feel it’s inevitable.)
However, there is certainly no denying the intent of the law.
There is also no reason why Congress couldn’t close this loophole nor is there any reason it would require “changing the Constitution”.

[astyanax]

One more point. It all comes down to original intent.

Many today assume the second half of the citizenship clause ("subject to the jurisdiction thereof") merely refers to the day-to-day laws to which we are all subject. But the original understanding referred to political allegiance. Being subject to U.S. jurisdiction meant, as then-Chairman of the Senate Judiciary Committee Lyman Trumbull stated, "not owing allegiance to anybody else [but] subject to the complete jurisdiction of the United States." The author of the provision, Sen. Jacob Merritt Howard of Michigan, pointed out that the jurisdiction language "will not, of course, include foreigners."

It was in 1898 (in United States v. Wong Kim Ark) that the Supreme Court expanded the constitutional mandate, holding that the children of legal, permanent residents were automatically citizens. While the decision could be (and is often) read more broadly, the court has never held that the clause confers automatic citizenship on the children of temporary visitors, much less of illegal residents.

Now, if you want to go along with the opinion of a couple of judges "interpreting" the law over the intent of the actual framers of the law, then I guess we will have to agree to disagree.

[Anitius Severinus Boethius]

Their decision:

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.

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That doesn't sound "extremely wide open" to me. It's pretty cut and dry.