Friday, August 13, 2010

Birthright Citizenship: Politics vs Rule of Law

We’ve all heard the stats: currently, only the United States grants birthright citizenship to illegal aliens and 8% of babies born in the US are so-called “anchor babies” born of illegal aliens. In and of itself, this doesn’t constitute a crisis, but, for many of us, it does illustrate how far we’ve strayed from the Constitution.

Like all babies, “anchor babies” too are sweet and cuddly, and deserving of mother’s love and society’s protection. But automatically conferring citizenship on babies of illegal aliens is an ideologically-motivated perversion not only of internationally accepted legal norms, but, much more importantly, of both the Constitution and the 14th Amendment as well.

By nimbly mischaracterizing the motives of birthright citizenship opponents, many in the media and blogosphere—to include attorneys who should know better-- have irresponsibly misrepresented the framers’ intent and have reduced the level of discourse on this legitimate constitutional issue to that of ad hominem, race-baiting, specious legal citations, contrived legal justifications, and mindless pandering. Shamelessly seeking ideological and political supremacy, to these people the Constitution and the rule of law mean absolutely nothing. And for a nation which once prided itself as being a “nation of laws”, that is inexcusable.

That said, for my own edification I decided to take the time to review the actual words of the 14th’s framers, pertinent case law and the opinions of jurists and legal scholars on both sides of the question to determine the truth in this matter.

Here, in choppy-brief form, are my findings and conclusions:

First, while researching pertinent materials, I soon discovered that understanding the clear intent and meaning of the 14th Amendment was much simpler than anticipated. In fact, the meaning of the 14th was surprisingly straightforward. Lesson learned: if one simply abandons one’s ideological blinders for a moment and makes an honest effort to objectively review a constitutional issue, clarity is nearly always one’s reward.

It also became apparent that from a strictly Constitutional standpoint, and despite Lindsey Graham’s initial assertion that a constitutional amendment is needed to outlaw anchor babies, aka birthright (jus soli) citizenship, I was unable to find convincing constitutional evidence that so-called anchor babies can legitimately and automatically acquire U.S citizenship. Thus, a simple act of congress--and most certainly NOT an amendment to the Constitution—in order to clarify the original intent and meaning of the 14th Amendment is all that is really needed.

To wit, introduced on April 2nd, 2009, and co-sponsored by 93 congressmen, inclusive of one lonely Democratic supporter, Mississippi’s Gene Taylor, HR 1868 (Birthright Citizenship Act of 2009) amends section 301 of the Immigration & Nationality Act to provide that a person born in the US is “subject to the jurisdiction” of the US for citizenship at birth purposes if the person is born in the US of parents, one of whom is: 1) a US citizen or national; 2) a lawful permanent resident alien who resides in the US; or 3) an alien performing military service in the US Armed Forces.” And if one simply reviews the original meaning of the 14th Amendment one can easily see that there is absolutely nothing at all earth-shattering, divergent or revolutionary in that language.

Intended to protect the rights of emancipated Negroes, the 14th Amendment specifically provided that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

And as I very quickly learned, of central importance in this statement is the phrase “subject to the jurisdiction thereof”, something birthright citizenship proponents have consistently and very conveniently ignored.

To begin, Sen. Jacob Howard of Michigan, a co-author of the 14th Amendment, expressly asserted that “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.” And it is this rough grammatical construction which, to birthright proponents, provides convenient ambiguity and cover. Did Howard mean foreigners/aliens who belong to the families of ambassadors or foreign ministers, or did he mean foreigners AND aliens who belong to the families of ambassadors or foreign ministers? A fair question which was soon clarified by him and other co-framers.
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Under Section 1992 of the US Revised Statutes, the same Congress which adopted the 14th Amendment confirmed that “all persons born in the United States who are not aliens, excluding Indians not taxed, are declared to be citizens of the United States.”

In 1873, the US Atty Gen ruled the word “jurisdiction” under the Fourteenth Amendment to mean “the absolute and complete jurisdiction. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the US but only to a limited extent. Political and military rights do not pertain to them.”

Sen. Trumbell noted during the drafting of the 14th Amendment that it was the Amendment’s goal to “make citizens of everybody born in the US who owe allegiance to the US,” and if “the negro or white man belonged to a foreign government he would not be a citizen.”


On March 1, 1866, Rep. James Wilson of Iowa, House Judiciary Committee, added that “we must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to conclude that every person born in the US is a natural-born citizen of such States, except that of children born on our soil (jus soli) to temporary sojourners or representatives of foreign governments.” This seems to have nicely clarified Sen. Howard’s ambiguous construction above.

John Bingham, framer of the 14th Amendment’s first section, stated that Sec. 1992 of the Revised Statutes meant “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural born citizen.”

And if we reach way back to our founders in search of a definition of citizens of a foreign power, Thomas Jefferson said “Aliens are the subjects of a foreign power.”

To a man, among the framers the premise behind “within the jurisdiction thereof” was that all children born to parents who owed no foreign allegiance were to be citizens of the US; thus, not only must a child be born on US soil (jus soli) but born within the complete allegiance of the US politically and not merely under its laws.

Subsequently, Sen. Howard further explained that “only thru expatriation, which could be accomplished thru law alone, and not thru any immigrant acting on his own outside the law—and certainly not by any act of birth alone—could an alien become a citizen.” This, of course, would mean that the alien/sojourner would need to affirmatively renounce his allegiance to his/her country of origin before s/he could be considered completely within the jurisdiction of the US.

Sen. Howard also stated the following: “…the word 'jurisdiction', as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the US, coextensive in all respects with the constitutional power of the US, whether exercised by Congress, the executive, or the judiciary; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the US now.” In effect, he was saying that an alien may, by treaty arrangements with his country of origin, avail himself of the protection of the US, much as sojourning US citizens in the alien’s country of origin would avail themselves of that country’s protection.

The rationale behind not granting automatic citizenship is based upon the fact that Indians could not be subject to the jurisdiction of the US because the US dealt with them through treaties. By logical extension, aliens sojourning in the US are extended privileges and protections by virtue of treaties in force with their countries of origin, much as American citizens are granted similar rights and privileges—but not citizenship--when sojourning in those countries. Logically, therefore, only if an alien voluntarily and affirmatively renounces his citizenship and expresses an intent to swear allegiance to the US may the alien, through operation of law (a formal naturalization process) be granted US citizenship. Thus, in a nutshell, since neither children of tourists/sojourners nor of diplomats born in the US can be US citizens, by what stretch can children of illegals be automatically granted that privilege?

In 1867, George Yeaman, American Minister to Denmark, in his highly respected treatise on allegiance and citizenship and for whom the framers seemed to have great respect, asserted that “the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.” Thus, dual citizenship was also a no-no. (Take note, BHO.)

To wit, P. A. Madison, a modern day master of constitutional analysis, points out that “since illegal aliens are unlawfully in the US, their native country has a proper and primary claim of allegiance on the child. Thus, the completeness of their allegiance to the US is impaired, which therefore precludes automatic citizenship.” Slam dunk obvious, I’d say.

Also, Rep. Aaron Sargent, a representative from California during the Naturalization Act of 1870 debates, said the 14th Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. Significantly, none of his contemporaries raised any objection, or otherwise disputed that assertion.

Adding to this mix, here is a little case law since the 14th’s ratification.

In the Slaughterhouse Cases(1873), the Supreme Court observed that the 14th Amendment overturned the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction, citizens of the US; the ruling went on to point out “that [the 14th Amendment’s] main purpose was to establish the citizenship of the Negro” and that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, AND citizens or subjects of foreign states born within the United States.” Thus, another clarification of Sen. Howard’s somewhat ambiguous construction above. So, since they cannot be subject to US jurisdiction, children of citizens of foreign sovereignties and children of foreign ministers/consuls/ambassadors cannot be considered US Citizens. Makes perfect sense.

Then, in Elk v Wilkins (1884), the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians—because they were subject to tribal jurisdiction, not U.S. jurisdiction. In effect, the court essentially stated that the status of the parents determines the citizenship of the child, and not merely the fortuitous birth of that child on American soil. (Note: not until the Citizens Act of 1924 was U S citizenship granted to Indians. As with many whimsical court rulings over the years, I was unable to understand the legal grounding for this reversal. Thus, it would seem that arbitrariness is not an affliction peculiar to modern day American courts alone.

In US v Wong Kim Ark (1889), the courts held that children born in the US of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the US and are carrying on business in the US, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of US territory, become a citizen of the US at the time of birth. As expressed in the minority opinion, the decision violated the 14th Amendment. But, in any case, how many new illegal aliens have permanent domiciles in the US and how many of them are carrying on business in the US? (A lawful business, that is.) I suspect precious few. But note that in this case the parents were, unlike illegal entrants, legally present.

In Steel v Citizens for a Better Environment (1998), the court stated that “jurisdiction is a word of many, too many, meanings.” However, Sen. Trumbell and, yes, Sen. Howard, 14th Amendment authors, had long before provided a definition by declaring that “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. What do we mean by ‘complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means.” From the horses’ mouths. Clearly, jurists in the Steel v Citizens court didn’t bother to research the framers’ intent and meaning.

But, despite the foregoing, we fast forward to the somewhat enigmatic ruling in US ex rel. Hintopoulis v Shaughnessy (1982), which some bloggers have used to justify birthright citizenship. In that case, and out of whole cloth, somewhere in the ruling it asserted, almost in passing, that although a child born in the US to two illegal aliens was a US Citizen (????) that, nonetheless, “suspending the alien parents’ deportation based upon “the accident of birth in the US of their son would be to deprive others, who are patiently awaiting visas…” Thus, since the passing allusion to the legality of birthright citizenship, though gratuitous—and erroneous—was woven into this suspension of deportation decision, birthright proponents often blithely cite this case to substantiate the incontestable legality of birthright citizenship. Don’t ask.

Then, true to activist form, in Plyler v Doe (1982) the court, somehow without ready access to the framers’ erudition and written words, mysteriously ruled 5-4 that there is “no plausible distinction” with respect to “jurisdiction” between resident aliens who entered the country lawfully and those resident aliens who entered unlawfully. Wow. Again, don’t ask. Clearly a yawning divergence from the framers’ clear meaning and intent. Seems judicial activism was as alive and well in 1982 as it is today.

To me, these two rulings which capriciously and arrogantly turned Thomas Jefferson and the framers of the 14th on their heads are clearly unlawful at worst, convenient contrivances at best.

When I explained all this on-line to an attorney who is also a strong proponent of birth right citizenship, this was her reply: “I disagree with your interpretation of the phrase ‘subject to the jurisdiction thereof'. The first rule of statutory construction is that we don’t look to the drafters’ intent if the words are plain and unambiguous…If the drafters meant to include some allegiance test, they would have. They didn’t.” That sort of revisionism, willful ignorance and dishonesty is, folks, what this country is up against. My rejoinder was civil, but to the point: “It wasn’t MY lowly interpretation. It was the framers’ interpretation. But, ignore original intent and meaning? A living constitution is like having no constitution at all. We can merely make it up as we go along and continue to hand-off an increasingly irrelevant document to the next generation. While I sincerely hope this isn’t what you have in mind, at this juncture I can see there’s really nothing more to discuss with you on this or any other constitutional issues. How very sad.”

Finally, in my humble opinion, and based upon what I understand to have been the framers’ clear intent and meaning, passage of HR 1868 is the only course of action left for us if we are to bring the 14th Amendment’s application into compliance with the framers’ clear intent and meaning—surely a tall order with so many activists and social engineers infesting our courts these days.

"The common law of England is not the common law of these States." George Mason (Founder)