U.S. Constitution
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Title: Constitution Doesn’t Mandate Birthright Citizenship
Source:
Breitbart
URL Source: http://www.breitbart.com/big-govern ... andate-birthright-citizenship/
Published: Aug 18, 2015
Author: Ken Klukowski
Post Date: 2015-08-18 15:04:10 by cranky
Keywords: None
Views: 19831
Comments: 115
The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal. Media commentators have gotten this issue dead wrong. Fox News’s Judge Andrew Napolitano says the Fourteenth Amendment is “very clear” that its Citizenship Clause commands that any child born in America is automatically an American citizen. That’s not the law. It has never been the law. Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen. How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional? No. The Citizenship Clause of the Fourteenth Amendment provides: “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.” Today’s debate turns on the six words, “and subject to the jurisdiction thereof.” As captured in the movie Lincoln, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and resolve of Republican President Abraham Lincoln that the proposed amendment passed Congress in 1865, sending it to the states for ratification. In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality. The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment. In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens. That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has. So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum. Media confusion on this issue is puzzling, because the greatest legal minds in this country have discussed the issue. (Just none of them were put on camera to explain it.) Scholars including Dr. John Eastman of Chapman University, and even Attorney General Edwin Meese—the godfather of constitutional conservatism in the law—reject the myth of birthright citizenship. Nor is rejection of birthright citizenship limited to conservatives. Judge Richard Posner—a prolific scholar who, despite being appointed by Ronald Reagan, is a liberal judicial activist—wrote in 2003 in Ofoji v. Ashcroft: We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship…. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it…. The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense. It is another question as to whether Congress could strip citizenship from the children of illegals who already have it. If Congress could do that, then it could also strip citizenship from the many millions of foreigners who came to the United States legally and went through the lawful process to become Americans. There is no court precedent for that, and the congressional and ratification debates from the Fourteenth Amendment do not reveal a clear answer. Trump could rescind President Barack Obama’s executive amnesty, but that executive order did not grant anyone citizenship, and it would be a steep uphill climb in court to try to take someone’s citizenship away. And if the children already here are American citizens, then they could never be deported. Some other parts of Trump’s plan face even longer odds. The Due Process Clause of the Fifth Amendment to the Bill of Rights applies to all “persons,” not just citizens. And the courts have always held that due process requires any foreigner to be given a “meaningful hearing” in court before being deported. That would certainly impact the pace of deportation. Donald Trump’s position on immigration has changed drastically from his previous positions, just like his past support for socialized healthcare and abortion. He has not yet explained why he changed his position on immigration, and some voters do not trust that he sincerely holds to his current campaign positions. But none of that changes the legality of his immigration proposal. While parts of it may face legal challenges, denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment. Ken Klukowski is legal editor of Breitbart News and a practicing constitutional attorney, and explains birthright citizenship in Chapter 12 of Resurgent: How Constitutional Conservatism Can Save America. Follow him on Twitter @kenklukowski.
Parts of Donald Trump’s immigration plan may raise serious constitutional questions, but the part that launched a media firestorm—ending birthright citizenship for the children of illegal aliens—does not.
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#2. To: cranky (#0)
I think it does. Seems pretty clear on the plain language. The Supreme Court has not ruled on the matter. When the Supreme Court does rule, 4 out of 5 Justices will agree with me. So, will Kennedy, Roberts, Alito, Thomas or Scalia, or any one of them, also agree? Probably. My bet would be that the Supreme Court would rule 9-0 that the 14th Amendment means what it says. They would explain, simply, that a child born in United States territory to parents who were not diplomats with immunity are US citizens by definition, are US citizens, as they are all subject to US jurisdiction at the time of their birth. I could be wrong, of course, but this has been the standard juridical understanding of the 14th Amendment for a century and a half, so I can't see the Supreme Court deciding otherwise. The Constitution will have to be amended.
A woman who is a Mexican citizen illegally crosses the border, has a child, and you say that child is a citizen of the United States. 18 years from now, that child receives a draft notice from the U.S. military. He's going to war. He may die. So he says, "Hold on there. My mother is a Mexican citizen. My father is a Mexican citizen. Yes, I was born in the U.S., but I consider myself to be a Mexican citizen with Mexican parents. So take your draft notice and shove it." No? He can't do that?
But that is not what that phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country. No. Senator Lyman Trumbull did not say that. That is ad lib crap. And it would not make any difference had Trumbull said it. Anyone who thinks tourists in the USA are not subject to its jurisdiction would think otherwise if a tourist took a rifle and shot a bunch of people. If not subject to U.S. jurisdiction, the tourist could not be prosecuted or punished. They could be deported. Senator Jacob Howard drafted and introduced the citizenship clause to the 14th Amendment. Prior to that, it had no citizenship clause. His role in that part of the 14th is slightly larged than that of Trumbull. "Subject to the jurisdiction" has nothing to do with political allegiance of the parents. It has to do with the child being subject to the laws and courts of the United States. There is no court holding that agrees with this nonsense. There's a bunch that do not. Among the "critics" who disagree with von Spakovsky are various iterations of the U.S. Supreme Court.
It could have just said All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. But they added "and". There was no need to do that if they were seeking the meaning that you believe. So it HAS to mean something else. No other reason to put it there.
It does. It meant, in 1868, that people within US territory who were "over the horizon", past the frontier… Indians out there on the "American" plains that were American in name but not really; Canadians wandering out there in the woods that accidentally crossed unmarked lines and set up a cabin but who thought it was Canada, and of course foreign diplomats and staff of every stripe with diplomatic immunity, and passengers on foreign ships passing through American waters - they were not subject to US jurisdiction as a matter of reality. And therefore not citizens. But the world has changed. There are no more wild Indian tribes. When those words were written, neither the Sioux nor the Apache nor the Nez Perce had fought yet. They were real nations, spread over real large areas, with real fight in them, but definitely NOT subject to US jurisdiction. We'd be in an Indian War with one bunch of them and General Custer, Civil War hero, would be dead with his whole unit a little under e decade LATER. The Idnians would still be at war a half-century later. America was not settled ground then. THere were hostile nations within. REAL nations, with real governments, and weapons, and not controllable. it would take three wars to bring them in check. They were on territory the US claimed, but that the US did not rule, and would not rule for decades more - and had to fight to secure - and took some hard knocks to get. That's primarily what it meant. But also people in transit. Today we fly around. Then, everybody sailed around. It took time. Ships passed in and out of ports a lot, for supplies, to rest, etc. Foreigners who were foreigners and intended to BE foreigners got on and off, or stayed off at anchor. Today, we have record-keeping and the like to track these things. There was no such thing as a driver's license in 1868. They weren't immune to US laws if they came ashore, exactly, but if they were on their ships tied up, it was admiralty, and admiralty says that the law of the flag controls the ship. So in 1868 a Spanish ship tied up in New Orleans could be inspected by Customs Officials for tariffs, if offloading, but it's passengers were not subject to US law unless they got off the ship and went wandering out and committed a crime…and even then it might depend. If it were a petty crime, by getting back aboard the ship, the citizen had passed within the jurisdiction of Spain, and local officials could not barge aboard the ship. They might prevent it from leaving, and there by a diplomatic dance. The point is, that there were a lot of people who spent considerable time in a transit status, aboard a foreign flag ship in the US, and those persons were not generally subject to US jurisdiction - insofar as US officials could not simply board the ships and take off passengers and the like. The law was complicated. Diplomats have always been immune. The distinction had meaning in 1868. In the age of airports, ID cards, tracking and judicial and executive overreach, where people routinely carry "papers", etc., the reach of jurisdiction is much broader. There are no more wild Indians. Today, the jurisdiction limitation means that foreign diplomats' kids are not American.
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Top • Page Up • Full Thread • Page Down • Bottom/LatestConstitution Doesn’t Mandate Birthright Citizenship
#4. To: Vicomte13 (#2)
"They would explain, simply, that a child born in United States territory to parents who were not diplomats with immunity are US citizens by definition, are US citizens, as they are all subject to US jurisdiction at the time of their birth."
#8. To: misterwhite, nolu chan (#4)
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
#10. To: A K A Stone (#8)
[Hans A. von Spakovsky at FR] Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.
#21. To: nolu chan (#10)
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.
#23. To: A K A Stone (#21)
Replies to Comment # 23.
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