pescado rojo

No doubt, i*****l i*********n is one of the most contentious subjects that will influence November's e******ns. One of the biggest attractions is the concept of anchor babies, a sham and farce that has been allowed to continue by a Congress that is more interested in keeping their snouts in the taxpayer trough than in doing their jobs.
The following is an article by Gerald Walpin, writing for the Federalist which re-states what I have stated before on OPP, with a bit more information. It will be in two parts, as they don't all fit in one post.


Applying these rule of law principles, how should we construe the words of the Birthright Citizenship clause of the 14th Amendment to the Constitution? Does the clause, as some now assert, give citizenship to a child on the sole condition that he or she was born on United States soil, even if (i) born to a foreign citizen mother who promptly returns to her native land where the child also is a citizen of that foreign country, or (ii) born to foreign citizens while they are illegally in this country? Let’s together do the analysis that is necessary to determine what the rule of law requires.

We start with the relevant words of the 14th Amendment ratified on July 9, 1868. It requires that two conditions—not just birth in this country—be present for citizenship to be granted: (i) the baby must be “born … in the United States;” and (ii) when born, the baby must be “subject to the jurisdiction” of the United States. A cursory glance at the words themselves makes it clear that those who argue that mere birth within the United States results in citizenship fail reasonably to address this second requirement.9

Two Supreme Court opinions, both issued within the decade after ratification of the 14th Amendment are particularly relevant to construing the meaning of the Birthright Citizenship provision. Note that, because the meaning of the Birthright Citizenship provision did not determine the outcome in either case, the Court’s statements in both decisions are dicta, not binding holdings. But the Justices’ words should be considered authoritative insofar as they were expressed by Justices who lived through the enactment of the provision they were construing, and thus were well positioned to comprehend the meaning and intention of the words. These Court-expressed views on the meaning of the Birthright Citizenship provision should also be considered authoritative because the Justices were unanimous in making the statement in one case, and, in the other, the dissenters did not disagree with that particular point.

In the Slaughterhouse Cases,10 the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” That is as absolute and complete a statement as can be imagined, and it would deny birthright citizenship to a child born in this country to undocumented immigrants or to a t***sient alien mother. Then, two years later, in Minor v. Happersett, the Court unanimously and expressly recognized the existence of “doubts” that citizenship was automatic for “children born within the jurisdiction without reference to the citizenship of their parents,” after noting that citizenship attaches only when the immigrant owes “allegiance” to this country.11 These two Supreme Court rejections of automatic birthright citizenship for anyone born in this country, without regard to the parents’ citizenship status, are supported by facts undoubtedly known to those Justices, and certainly known to us.

https://supreme.justia.com/cases/federal/us/83/36/ (Cite insertion mine)

https://supreme.justia.com/cases/federal/us/88/162/ (Cite insertion mine)

During the same session in which Congress approved the 14th Amendment, it had already enacted the Civil Rights Act of 1866, providing that, for a U.S.-born baby to be a citizen, the baby must “not [be] subject to any foreign power.”12 A child, although born in this country, who, after birth, returns with foreign citizen parents to, and lives in, the foreign country of which the child remains a citizen, is subject to that foreign power. Thus, that statute mandated that such U.S.-born children be denied U.S. citizenship. The record makes clear that, in considering the 14th Amendment, Congress did not repudiate the statute it had just enacted. Not even a single member introduced a bill to rescind that legislation. The absence of any attempts to walk back the statute suggests that Congress remained satisfied with that law, and that the same-session approval of the 14th Amendment did not signal any change of view.

Despite these facts, some might still question why, with this statute already enacted, it was necessary to adopt the 14th Amendment so shortly thereafter, if not to change the condition for granting citizenship. Others might ask why the 14th Amendment did not copy the negative requirement that the baby “not [be] subject to any foreign power,” but instead substituted the affirmative requirement that the baby must be “subject to the jurisdiction” of the United States. If one were to stop the analysis with the substitution, it certainly would leave reasonable questions. However, the statements made by the proposers of the 14th Amendment provide clear answers: The proposers sought to prevent any future Congress, by a simple majority v**e, from altering or rescinding the civil rights statute.13 In contrast, altering or rescinding a constitutional amendment would require a two-thirds v**e of each house of Congress and approval by three-fourths of the state legislatures—a vastly increased burden and, as history has shown, seldom obtained.

We do not know the specific reason for the change in phraseology. However, it is irrelevant in our search for the meaning of the Amendment, because Senator Jacob Howard, the Amendment’s co-author, described it as “simply declaratory of … the law of the land already,”14 referring to the Civil Rights Act already enacted. Thus, he was confirming that the 14th Amendment, with slightly different wording, was intended to constitutionalize the statute’s requirement that the baby must “not [be] subject to any foreign power.”

This conclusion that no change of meaning was intended was also confirmed by the provision’s prime author, Senator Lyman Trumbull, who explained to the Congress before it v**ed, that “subject to the jurisdiction thereof” required being “subject to the complete jurisdiction thereof,” meaning, as he put it, “not owing allegiance to anyone else.”15 As Thomas Jefferson earlier wrote, “aliens are the subjects of a foreign power,”16 and thus owe allegiance to another country; hence, the alien’s children are not U.S. citizens simply by virtue of birth on U.S. soil. Furthermore, Senator Howard’s explanatory words are nearly identical to the Civil Right Act’s words “not [be] subject to any foreign power,” making explicit that the 14th Amendment was intended to put in Constitutional “stone” what Congress had first enacted as legislation. Applying that meaning, the U.S.-born child, returning to the parent’s country, is a citizen of and subject to that foreign country, and thus does not meet this requirement for birthright citizenship.

In its 1884 decision in Elks v. Wilkins, the Supreme Court adopted Senator Trumbull’s formulation that, to receive birthright citizenship, the parents must “not merely [be] subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and not subject to any foreign power,” as well as owe the U.S. “direct and immediate allegiance.”17 Parents and child, returning to their native land of which they are citizens, remain subject to that foreign power and must show it allegiance, and thus do not give the U.S. “immediate allegiance.” An immigrant who violated U.S. law by entering or overstaying illegally also fails to show “allegiance,” which by definition requires loyalty and obedience to the law.18 William B****stone, the famed English legal commentator in the period the 14th Amendment was enacted, and to whom American lawyers, judges, and legislators then repeatedly cited and quoted in decisions, legal briefs, and statements in the legislatures, defined “allegiance” in this context as requiring that the subject “will demean himself faithfully.”19 An i*****l a***n, breaking America’s laws, by definition, certainly does not meet that requirement. Further, an i*****l a***n, while subject to the jurisdiction of U.S. courts, is not “completely subject to [U.S.] political jurisdiction” and, as a citizen of a foreign country, remains “subject to [a] foreign power”—thus falling outside of the Court’s stated requirements for birthright citizenship.

https://supreme.justia.com/cases/federal/us/112/94/ (Cite insertion mine)

Most proponents of the assertion that the Birthright Citizenship provision grants citizenship to all non-diplomats’ babies born in the U.S. ignore the three Supreme Court decisions discussed above, and instead rely on the Court’s 1898 decision in U.S. v. Wong Kim Ark.20 In that case, the Court granted citizenship to a child born in the U.S. to alien Chinese parents. But the Court made clear that its decision does not apply to the birth to a foreign alien mother who either promptly returns to the foreign country or is in this country illegally and therefore, under law, subject to deportation back to her foreign country. The Court expressly conditioned its decision on the facts that the parents “have a permanent domicil[e] and residence in the United States, and are there carrying on business.”21 Neither the parents nor the child are permanently domiciled here when, after birth, the parents and child return to and continue their allegiance to the parents’ native country. In Wong Kim Ark, the child who had been born on U.S. soil to Chinese parents had traveled to China, but only for temporary visits, and this was found not to undercut his claim to birthright citizenship due to his continued permanent and legal domicile in the U.S.22 Illegal status is more like returning to the foreign country than it is like temporary visits, for purposes of the Birthright Citizenship clause. An i*****l a***n is legally subject to deportation every day she is present on U.S. soil, unless she has been granted relief from deportation. Such a situation cannot be described as “a permanent domicil[e] and residence in the United States,” given that “permanent” is defined as “lasting or intended to last or remain unchanged indefinitely.”23

Another reason the Birthright Citizenship provision does not give automatic citizenship to U.S.-born children of illegal or t***sient aliens is that there is no evidence that those who v**ed to adopt the 14th Amendment even considered such a scenario. The purpose of this portion of the 14th Amendment was, as one senator put it during the Senate debate on the 14th Amendment, “simply to declare that Negroes shall be citizens of the United States,”24 and therefore guaranteed equal citizenship rights in the aftermath of the Civil War.25

Furthermore, they could not have intended to grant citizenship to children of i*****l a***ns because no category of “i*****l a***ns” then existed. In 1866, when Congress approved the amendment, immigration was essentially unhindered; any immigrant was a legal immigrant, entitled to citizenship after a minimum residence period.26 The first category of “i*****l a***n” was not created until 1875—nine years later—when federal law denominated the first aliens prohibited from entering; the only ones prohibited even then were convicts, prostitutes, and “orientals.”27 Ellis Island, which housed the first federal immigration inspection station, was not opened until 1892.28 I have not seen any explanation from those who argue that the 14th Amendment provides citizenship to illegal or t***sient aliens’ babies born here that reconciles that position with the undisputed fact that no category known as “i*****l a***n” was then even imagined to exist.

The fact that there were no i*****l i*******ts when the 14th Amendment was enacted is not the only basis for concluding that the 14th Amendment was never intended to grant citizenship to a child born to t***sient aliens. To hold otherwise would require attributing to the enactors of this Amendment the intent to scuttle a provision of the original Constitution that was sacrosanct at that time and has remained so until the current date. Article II of the Constitution prohibits anyone who is not “a natural born citizen” from being president. John Jay, later the first Chief Justice of the Supreme Court, wrote a letter to George Washington, then presiding officer of the Constitutional Convention, that sheds light on the purpose of this provision. He suggested that it would “be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government.”29 Such a “strong check” would be non-existent if a child of foreign parents, who left the U.S. following birth and lived as a citizen of that foreign land, owing it allegiance, could return at age 35, or even 20, and become president. That inconsistent continuing provision in the Constitution—not only never questioned, but specifically mentioned during the debate on the 14th Amendment30—counsels a rejection of the theory that the Birthright Citizenship provision granted citizenship to any child of non-diplomat foreign citizens born in the U.S.

Proponents of the broad view of birthright citizenship also err in asserting their premise that two clauses of the Amendment section that contains the Birthright Citizenship provision—“within the U.S.” and “subject to [U.S.] jurisdiction”—are synonymous as applied to illegal and t***sient immigrants. But the Amendment’s authors, in fact, made clear that they did not believe that “subject to [U.S.] jurisdiction” meant the same as “within the U.S.” In the same section of this Amendment, it guaranties “any person within its jurisdiction the equal protection of the laws.” The “within” phrase was defined by co-author Senator Howard as meaning “all persons who may happen to be within their jurisdiction,” meaning that anyone physically present must be treated equally under our laws.31 In contrast, the Court has stated and later reaffirmed that “subject to jurisdiction” means much more: “owing … direct and immediate allegiance.”32 No allegiance, and certainly not immediate allegiance, is given by a parent who, following birth, returns with her newly born baby to live in the country of her citizenship; nor does one who remains here in violation of law show such allegiance.
continued in Part II