Does the U.S. Constitution require “anchor babies”?

In an article I just read at the American Thinker website, Cindy Simpson reacts to Sen. Lindsey Graham’s opinion that “Birthright citizenship I think is a mistake.” She says “Although Graham talked about “changing” the Constitution to outlaw the practice, many experts say the Constitution as written does not authorize birthright citizenship in the first place.”

Both Graham’s statement and Simpson’s comment describe the situation in an inaccurate and misleading way. The problem is not “birthright citizenship.” Most American citizens are birthright citizens, meaning simply that at birth, and without need of any process of naturalization , they are natural born citizens of the United States. In this sense, birthright citizenship cannot be abolished without making citizenship the arbitrary gift of government, rather than a fact arising from unalienable right. The Constitution itself takes cognizance of this natural route to citizenship when it specifies that, except for those who were citizens at the time of its adoption, only natural born citizens shall be eligible for the Office of President of the United States. Of course, for purely ideological reasons most contemporary so-called experts want to reject the idea that the U.S. Constitution in any way requires a jurisprudence of that relies on the concept of natural right (jus naturale) or natural law (lex naturalis). The Constitution’s reference to a natural standard for citizenship therefore confuses and embarrasses them. So they prefer to pretend it’s not there.

But it is there, and its common sense meaning was so taken for granted at the time the Constitution was written that use of the term “natural born” stirred no controversy and little discussion.

The 100 year census report to Congress, congressional testimony from a one, Mr. Schade, who had been the head of the census dept since prior to the civil war stated that he included the negro population witht he natives. ___________________________________________________ Official Report to Congress of the census records of the 1st 100 yrs of the country: Congressional testimony from 1892 on the US population from 1790-1880, who were the natives and who were the aliens/foreigners and the natives were not the immediate offspring of alien fathers. This is directly from automated text so the spelling may be a bit off. Mr Schade: Now, these figures were published at that time in various magazines, and I dare say they have been accepted by European statisticians as most trustworthy in ascertaining as to what this country has gained in population through immigration. Now, I have made another calculation. I have gone up to 1890. Taking 1.38, which annual rate has been recognized by the census of 1870 as correct, I have found that the population of this country in 1890 would have been—that is, if there had been no immigration since 1790— 12,726,033, instead of 56,000,000, leaving out the 8,000,000 colored people. I intend to be as liberal as possible. Having added the 8,000,000 of negroes to those 12,726,000,1 will add another 5,000,000 thereby increasing the population to 25,000,000. Every fair-minded man will concede that I am as liberal as I possibly can be. I am, therefore, justified to claim that of the 64,000,000 people who inhabit this country at the present time 25,000,000 are such as have a right to say that they descend from the people who were here at the time of the First Census in 1790, and the balance (about 40,000,000) are either foreign immigrants or are descendants of those who came here since 1790. Now. I want to give you some proof, taken also from the census of 1880, showing that this assertion of mine, this calculation is correct. In 1880 the foreigners and their children (not grandchildren) outnumbered the natives in the following States(see chart in the records) The CnAirman. Are you allowing the natives any children or only the foreigners? x Mr. Schaue. I repeat again that this statement is taken from the census of 1880. The census stated, for instance, that the foreigners number so many and those born in this country of foreign parents were so many. By adding them together I construed the above table. The Chairman. You compare those with the native born? Mr. Schade. I give the foreigners and their children. I do not add their grandchildren, because I give them to the natives. Representative Geissenhaineb. You do add the children? Mr. Schade. Yes, sir. Mr. Deily. I should like to ask the gentleman a question. There are about (35,000,000 people in the country to-day. Now, how has he figured the ratio of increase of the immigrants during that time, and does he mean to say that the ratio of increase of the immigrants and their children is over 40,000,000, while that of the natives is only 25,000,000? Mr. Schade. Certainly. Mr. Deily. Will the gentleman inform me how many immigrants have lauded in this country and what the ratio of increase has been, at the same rate he is figuring there? Mr. Schade. Do you want me to answer? Mr. Deily. Yes, sir. Mr. Schade. I have taken the official 3,231,000 of 1790 as a basis for my calculation, giving them an annual increase of 1.38 per cent, the most favorable of any country. By that calculation I have shown you that our population, had there been no immigration since 1790, would. in 1890, have been about 25,000,000 instead of 64,000,000. Senator Hale. Your figures, from 1790 to 1890, would show the native population, including the blacks, to be 25,000,000? Mr. Schade. Yes, sir. Senator Hale. And as the whole population of the United States is 65,000,000, you conclude from that that the other 40,000,000 are foreigners and their increase. Mr. Schade. Yes, sir; foreigners and their children since 1790. http://books.google.com/books?id=-ShAAAAAYAAJ&pg=PA54&dq=Immigration+and+Citizenship:+Process+and+Policy&lr=&as_brr=1&cd=71#v=onepage&q=born&f=false

-- Kawakita, a dual Japanese/US citizen was convicted of treason for helping the Japanese during WWII, although he returned to Japan just before reaching the age of majority. If they can convict you of treason, they certainly can convict you of draft evasion. --

Thanks for the case. Kawakita v. US, 343 U.S. 717 (1952)

My question was aimed at finding the reach of "under the jurisdiction." The example I hypothesized was what I'll call a "nominal citizen," that being a person born on US soil, who at a young age departs the US and resides with his alien parents in an alien land, and other than for being born, is not in the US at the time a draft or other "call for citizens" is made.

Kawakita is quite a different critter from that, as one can discern by reading the case. I don't think finding Kawakita to be a US citizen is a stretch, as he seems to obtain that status by acts that resemble naturalization (oaths of allegiance), even if he has US citizen status at birth (which he would, being post WKA).

Also of interest in the case, are citations to the expatriation by operation of various section of the Nationality Act.

Ahhh, found this, which I think answers my initial question:

"A person with dual nationality may be subjected to taxes by both states of which he is a national. He is not entitled to protection by one of the two states of which he is a national while in the territorial jurisdiction of the other. Either state not at war with the other may insist on military service when the person is present within its territory. In time of war if he supports neither belligerent, both may be aggrieved. If he supports one belligerent, the other may be aggrieved. One state may be suspicious of his loyalty to it and subject him to the disabilities of an enemy alien, including sequestration of his property, while the other holds his conduct treasonable." Orfield, The Legal Effects of Dual Nationality, 17 Geo. Wash. L. Rev. 427, 429.

And so, "subject to the jurisdiction" is clearly not some fixed quantum - and too, a dual citizen born in the US is not amenable to the draft, unless present on US soil.

Kawakita is a darn good example of the risk in finding a dual citizen at birth to also be a "natural born citizen" for purposes of qualification for the presidency.

"And so, "subject to the jurisdiction" is clearly not some fixed quantum - and too, a dual citizen born in the US is not amenable to the draft, unless present on US soil."

It depends on the country with whom the dual national shares nationality. Some countries do have agreements that have been codified in particular treaties that shield or insulate its citizen from conscription unless they're on US soil. But, absent those agreements - and there are not very many - Americans who enjoy dual citizenship are required by law to register for selective service (and therefor are subject to conscription), irrespective of their actual residence.

Also, many people don't realize that individuals between the ages of 18-25, who are legal alien residents MUST register with the Selective Service, or face penalties up to and including deportation, FWI

-- Some countries do have agreements that have been codified in particular treaties that shield or insulate its citizen from conscription unless they're on US soil. But, absent those agreements - and there are not very many - Americans who enjoy dual citizenship are required by law to register for selective service (and therefor are subject to conscription), irrespective of their actual residence. --

Agreed in part. The duty to register covers more people than are amenable to induction. That is, "required to register therefore subject to conscription" isn't true. They are two separate inquiries, with two different sets of rules. See http://www.sss.gov/fsaliens.htm, if you haven't already.

From the Kawakita treason case (and I know it's from 1952) comes a note that says the duty to the US varies, depending on where the dual citizen happens to be residing.

It has been stated in an administrative ruling of the State Department that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States.

The Kawakita case is literally about a person having dual citizenship, and the two countries are at war; and would excuse the person from treason if they were compelled to fight by the other nation. And so, the various duties, especially being subject to conscription, vary.

It is interesting that a dual citizen who performs military service for a foreign country "with which the U.S. is involved in mutual defense activities will be exempt from military service if he is a national of a country that grants reciprocal privileges to citizens of the U.S."

At any rate, I think you agree that a dual citizen has duties to the US that are diluted, compared with the duties of a person with only US citizenship. And, looking the other way, more than one country has a claim on a dual citizen, e.g., the US has a claim on dual citizens living abroad; and foreign countries have a claim on dual citizens living in the US. Exactly what those claims comprise is variable, complex, and can depend on immediate situations.

All of the above pretty far afield from the contention that the US constitution mandates anchor babies, by dint of the 14th amendment. It took a civil war and constitutional amendment to get around the Dred Scott decision, maybe it'll take similar to get around WKA.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.