One of the dangers of our contemporary american society is that much of the communication and education industries (and if you don’t think public education is an industry, you’re an example of how far the problem extends *sigh*) are dominated by harmful myths.
One of the most harmful myths cropped up recently in an email exchange I had with an ESOL teacher who’s also a retired military officer. He ought to know better, but he’s bought the myth that American birth=American citizenship and presented the “fact” of American birthright citizenship as a “300+ years of legal tradition in this country”. He was talking about children who were born in this country to illegal aliens.
Nothing could be farther from the truth. Indeed, the defining legal moment in a discussion of American citizenship took place as the Senate was debating the lamentable (despite its laudable intent, clear language and easily-grasped concepts) 14th Amendment. (“Lamentable”? Yes, for the way it’s been abused, misused and used to aid “feddle gummint” imperialism :-))
Let’s see what our Constitution, that pesky lil document that everyone honors more in the breech than in reality nowadays, has to say in that “lamentable” 14th Amendment… and what the people who wrote the thing said they meant when they wrote it. (Oh! The Horrors! Actually taking a legal document to mean what it says! What would the courts ever come to were that to happen nowadays! The End of the World! The End of the World! The Sky is falling! The Sky is falling!)
FIrst, a note: illegal aliens, by very definition–theirs, not forced upon them!–do NOT consider themselves subject to the laws and jurisdiction of this country. If they did, they’d get in line and apply for visas. Their acts speak for themselves.
Now, the pertinent clause from the 14th Amendment:
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. [emphasis added]
What did the people who wrote and passed this amendment mean by this? We do not have to suppose anything, because their thoughts on the matter are public record. You can look it up yourself, but here’s a sample. Sen. Lyman Trumbull, Chairman of the Judiciary Committee at that time, was clear:
“[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.”
Indeed, Trumbull continued,
“The 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.'”
And, as Senator Edgar Congen said,
It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. … I have supposed … that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them.
There’s a long discussion, part of the public record, clearly delineating the FACT that the “citizenship” clause in the Fourteenth Amendment DOES NOT in any way, shape, fashion or form mean that just anyone born on U.S. soil is an American citizen. And the discussion is abundantly clear that the _parents’_ allegiance (since babies can have none) is the issue. Buying into this old cannard costs millions of dollars each year at Parkland Memorial Hospital in Dallas, Texas, alone (DO read that linked article at Snopes). Dollars stolen from the public pocket. Why? Because illegal aliens want the freebie health care they cannot get in their own country (let’s be frank: Mexico) and they want the myth of American citizenship granted at birth to become their magic ticket to flouting our immigration (and many other) laws.
Why did I point out at the head of this that illegal aliens have, by their very plain and continued flaunting of our laws, conclusively demonstrated that they do not consider themselves subject to our laws nor under our jurusdiction? (Yeh, that ws a rhetorical question–*heh*) The Supreme Court, in its first use of this amendment to consider citizenship of someone born in the U.S. not a citizen, included this comment in the decision:
The evident meaning of [the jurisdiction phrase] is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.
Indeed, the Court in that case made much of allegiance to one’s country, something that has fallen into the dustbin in today’s society, apart from in the military (it’s certainly not apparent in Congress!).
And that, my friends, is that. As Teddy Roosevelt said in 1907,
“In the first place we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the man’s becoming in very fact an American, and nothing but an American…There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag, and this excludes the red flag, which symbolizes all wars against liberty and civilization, just as much as it excludes any foreign flag of a nation to which we are hostile…We have room for but one language here, and that is the English language…and we have room for but one sole loyalty and that is a loyalty to the American people.” [emphasis added]
The Senate record of the adoption of the 14th Amendment, and Supreme Court cases specifically citing the Amendment, agree: people who do not meet the criteria Roosevelt stated above do not meet the criteria of citizenship, nor do their children born here, by accident or by design.
THIS is an open trackbacks post. Link to THIS post and track back. 🙂
If you have a linkfest/open trackback post to promote OR if you simply want to promote a post via the linkfests/open trackback posts others are offering, GO TO LINKFEST HAVEN DELUXE! Just CLICK the link above or the graphic immediately below.
If you want to host your own linkfests but have not yet done so, check out the Open Trackbacks Alliance. The FAQ there is very helpful in understanding linkfests/open trackbacks.
Trackposted to Is It Just Me?, Perri Nelson’s Website, Blog @ MoreWhat.com, Committees of Correspondence, DeMediacratic Nation, Big Dog’s Weblog, Right Truth, DragonLady’s World, Cao’s Blog, Leaning Straight Up, The Bullwinkle Blog, Jo’s Cafe, Pursuing Holiness, Stageleft, The World According to Carl, Pirate’s Cove, Blue Star Chronicles, The Pink Flamingo, High Desert Wanderer, and Right Voices, thanks to Linkfest Haven Deluxe.
The U.S. State department, and the Supreme Court both have held that “subject to the jurisdiction thereof” only exempts the children of diplomats and diplomatic staff.
Illegal aliens are still subject to the laws and jurisdiction of the United States. Otherwise they could not be charged and convicted of any crimes while they are here, yet they pack our jails and occasionally, some are deported.
I’ll have to dig up the Supreme Court case where the court did in fact interpret the jurisdiction clause the way I noted.
The thing to note is that the child has no allegiance one way or the other. It’s the parents that are here illegally.
Elk vs Wilkins as a reference case is a bit thin, since the Constitution does not consider Native American Indians to be citizens, or subject to the Jurisdiction of the United States. The tribes are sovereign entities not subject to the Jurisdiction of the U.S.
Perri, there was indeed one case where the Supreme Court, completely ignoring stare decisis AND the clear intent of the framers of the 14th Amendment as is clearly found in the record of the 14th’s adoption, wrote its own law concerning the citizenship clause.
And I, too, can’t place my finger on the case right now–1887? A Chinese citizen sought ntry into the U.S. claiming U.S. citizenship because he had been born here to Chinese parents who returned to China shortly thereafter. [N.B. found it: ot 1887. United States v. Wong Kim Ark, 169 U.S. 649 (1898))
The Court in that case completely ignored (NOT reversed) ELK and simply ignoring the clear statement of the Senate discourse, wrote new law.
The State Department? Please don’t bring Foggy Bottom into this. 🙂
(BTW, “subject to the laws and jurisdiction thereof” is why an American who is born abroad to American citizens has American citizenship. Follow the reasoning.)
And simply ignoring the clear intent of those who framed (and those who ratified, based on the clear intent of the framers) the 14th Amendment is another example of the anarcho-tyrannical disrespect for law that has done this country so very much “good” in the past century or so…
But of course, for disrespect for law (and respect for outlaws) we need look no further than Congress, the current (at least) administration and the courts…
Sorry, Perri: there are these two Supreme Court cases (and yes, others of even narrower, less useful scope, I think–need more reading, of course:-)): one where the clear intent of the Amendment was followed and one where it was pointedly ignored. Choose you this day whom you will serve: the masters of deciet or those who wish to preserve one of the chief pillars of civilization: the rule of law.
If we follow the rule of law, and not the whim of (unelected, irresponsible) men, “birthright citizenship” exists only under some well-established rules–well-established before some decided to take an ax to the roots of the rule of law, that is, and replace law with thinly-disguised disrespect for law, the English language and American sovereignty. The English language?!? Yes. The clear record of the Senate debate on the “citizenship clause” of the 14th Amendment CLEARLY and IRREFUTABLY demostrates that the plain reading of the clause is that “subject to the jurisdiction thereof” means exactly what ELK says it means: “completely subject to their political jurisdiction, and owing them direct and immediate allegiance”. Those who enter this land in complete disregard for its laws, live here violating its laws, maintaining their allegiances elsewhere (the second largest element of Mexico’s economy is “remittance” monies from Mexican citizens residing in the U.S., for example) are NOT “completely subject to [the] political jurisdiction” of the U.S., and their every breath is a demonstration of their determination NOT to be “completely subject to [the] political jurisdiction” of the U.S.
Illegals, by their very cotinued determination to BE HERE ILLEGALLY and operate, live and conduct their lives APART FROM and in DEFIANCE OF the political jurisdiction of the U.S. is on its face proof that they are NOT “completely subject to [the] political jurisdiction” of the U.S.
If they were legal immigrants or even here legally on visas, there might be some sort of grounds for argument (leaving aside the clear intent of the Senate framers, those who voted to ratify it among the States understanding the Senate’s intent and the clear English of the entire process indicating that “subject to the jurisdiction thereof” is more, much, much more, than simply punishable for lawbreaking).
BTW, the misapplication of one small portion of the Senate debate that Foggy Bottom has twisted to allow them to apply the citizenship clause ONLY to children of diplomats born here is as follows:
The ensuing discussion, though, CLEARLY demonstrates that Senator Howard’s comment above was a LIST of disqualified persons, not a presentation of just one class-“diplomats and foreign ministers” for if that were so, then the Amerind question would have been moot. (BTW, the question of foreign, non-naturalized Chinese in California was discussed as well, but the Supreme Court chose to completely ignore that in the ONE case in which it decided to allow a foreigner who had chanced to have American birth to enter as a citizen.)
Further reading of the Senate discussion (back when the Senate still was a senate *sigh*) of the 14th Amendment reveals many more gems such as Senator Reverdy Johnson’s comment,
There’s more, much more, but this is enough to persuade anyone who has a desire to see laws BE what they are, until and unless they be specifically modified by proper means of elected representatives or petition of the People (to or through those elected representatives).
Also see: http://www.cfau.org/hamdi/amicusmerits.html
David, I agree with you that a proper interpretation of the 14th amendment would AND SHOULD exclude the children of illegal aliens.
But… the interpretation currently in use by the U.S. government, by USICS differs. Here’s a link to the current ICS information and history of the interpretation.
http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|SLB&s_fieldSearch=foliodestination|interp301.1&s_type=all&hash=0-0-0-26103
In the matter of Indians, Congress passed a law in 1924 that makes them citizens if they were born in the U.S.
The ICS currently interpreting “subject to the jurisdiction thereof” in terms of international law, and not ELK. This is where the current interpretation that only exempts the children of diplomats comes from.
As for children born abroad whose parents are citizens, Congress has periodically enacted laws granting U.S. citizenship. It’s not a constitutional issue. The most recent such law was enacted in 2000, the “Child Citizenship Act of 2000”. http://travel.state.gov/family/adoption/info/info_457.html
The original page that I used to refer to for all of this has been moved, but I finally dug it up. This is the “official” position of ICE…
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=85d3744a400ae010VgnVCM1000000ecd190aRCRD&vgnextchannel=96719c7755cb9010VgnVCM10000045f3d6a1RCRD
“The ICS currently interpreting “subject to the jurisdiction thereof” in terms of international law, and not ELK. This is where the current interpretation that only exempts the children of diplomats comes from.”
Yeh, I know. *sigh* Believe it or not, this issue has been visited and revisited many times. When I was in high school, we lived next door to a fedgov lawyer for the Border Patrol. He used to visit with us about “work” from time to time. And at that time, things were in a state of… flux, shall we say. BP/INS was resisting Foggy Bottom “kissy-face” with Euroweenies (yeh, and look what “international law” has done for Euroweenies. Exactly what it is now doing for us. *sigh*)
My point is that either we succomb to surrendering our sovereignty (and “American-ness”) to foreign invaders–and foreign laws–or we begin to fight back and assert American law for American soil. The first WILL lead to our destruction. The second MAY lead to a chance to continue the experiment of an unique and genuine democratic republic, perhaps even get it back on a track for future success and not simply bare survival.
BTW, “should be” is the reality; ICS/Foggy Bottom (and anti-legal court rulings) are the dangerous fantasy, a shadow of the genuine that threatens to overshadow the truth–and such a shadow lie can ONLY succeed if the truth of the 14th Amendment (and the longstanding traditions of society and law it simply was meant to embody! Check the Senate discussion for that little gem!) is brought out of bureaucrappic shadow and into the light of day.
As for children of American citizens born abroad, Congressional actions notwithstanding (Congresscritters seem to constantly feel a need to do something about things that aren’t really at issue), the discussions about the 14th Amendment, earlier congressional discussions and common law all point to the same thing: it is the PARENTS’ citizenship that determines a child’s citizenship. It’s been that way throughout English common law and American common law (from which American common law draws most of its underpinnings and primary structures–hence the importance of Blackstone to early American lawyers, even for 100 or more years after the Constitution was laid). And, frankly, most of European law through the early 20th century was not much different as to citizenship, either.
Of course, the Colonists, Founders and Framers were well versed in the Peace of Westphalia (some of the colonists–the first President of the United States, for example, were descendants of persons who were primary (or at least very important) parties to the Treaties of Münster and Osnabrück that formed the Peace) and were well aware of how that event was shaping such things as citizenship/relations between States and their peoples, etc., in Europe, as well.
America did not come into being in a vaccuum, but our taditions were well set as to citizenship long before the 145h Amendment or even the Constitution were framed, and those documents are primarily meant to serve as reflections of long held legal precedents and traditions.
That bureaucraps and unelected judges are allowed to change that to suit their own whimes or political climes (such as the chiiling effect of President Fifi Bush’s ICE “Surrender the borders!” policies) instead of politicians being compelled to take responsibility for their lack of oversight is a shame to the (waning?) republic.
WE THE PEOPLE must hold their feet to the fire ot truth and REQUIRE that bureaucrappic policy be a genuine implementation of actual law, NOT personal whim of a powerful bureaucrap of political cabal that wishes to remain unaccountable.
And, sadly, that is where I believe the republic faces its doom. Too many of THE PEOPLE are become sheeple, too stupid, uncaring, illiterate, intellectually and morally and ethically lazy to REQUIRE that their elected representatives be held accountable for the survival of the replublc, for their children’s and grandchildren’s future as… Americans.
(I say again as I have before: all one need do to make a criminal of a man (or woman) is to elect them to more than one term in Congress… Can there be greater temptation to sins against the republic than that?)
As always, your comments have been most stimulating. Thanks!
not by accident my friend…by malicious design!
our Constitution, that pseky lil document that everyone honors more in the breech than in reality nowadays…….sigh! 🙁