Worried for our children Loc: Massachusetts

Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the party’s base and its pro-crony-capitalism establishment.

Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history. The Wall Street Journal’s recent editorial on the matter is a case in point, and my good friend John Yoo’s NR essay repeats one of the same basic flaws.

The first clause of the 14th Amendment provides that “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.” The Journal thinks the meaning is “straightforward” : “Subject to the jurisdiction” covers everyone born on U.S. soil (except the children of diplomats and invading armies), because “‘jurisdiction’ defines the territory where the force of law applies and to whom — and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth.” It then states: “By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.”

Professor Yoo makes the same claim (absent the ad hominem word “restrictionist” ) : “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. ”

This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.

Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner, ” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.

The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens. ”

Moreover, contrary to Professor Yoo’s contention, the text elsewhere in the 14th Amendment supports this distinction. Unlike the Citizenship Clause, which uses the phrase “subject to the jurisdiction, ” the Equal Protection Clause bars a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) The phrase “within its jurisdiction” is territorial, whereas the phrase “subject to the jurisdiction” is political.

There were no restrictions on immigration in 1868 when the 14th Amendment was being drafted and ratified, so there was no debate on whether the Citizenship Clause confers automatic citizenship on the children of illegal immigrants. But we do have debate on the analogous circumstance of Native Americans who continued to owe allegiance to their tribes. One senator — exhibiting the same confusion today exhibited by the Journal — asked Senator Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, whether Indians living on reservations would be covered by the clause, since they were “most clearly subject to our jurisdiction, both civil and military. ” Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “not owing allegiance to anybody else. ” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction, ” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” — that is, under the 1866 Civil Rights Act, which the 14th Amendment was intended to codify. That act made the point even more clearly: “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. ” (Emphasis added.) As the debate over the 14th Amendment makes clear, the shift in language from the 1866 Civil Rights Act to what became the Citizenship Clause of the 14th Amendment was not intended to provide citizenship to the children of illegal immigrants, but rather to shift away from the “not subject to any foreign power” language out of recognition that the Indian tribes were not foreign powers but domestic (albeit dependent) powers. As Senator Howard explained, the Citizenship Clause excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers. ”

The leading treatise writer of the day, Thomas Cooley, confirmed this was the understanding of the 14th Amendment. As he wrote in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government. ”

When the Supreme Court first addressed the Citizenship Clause in the 1873 Slaughterhouse Cases, both the majority and dissenting opinions recognized this same understanding. The majority in that case correctly noted that the “main purpose” of the clause “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. ” (Emphasis added) .

That language in Slaughterhouse was dicta (a comment not strictly relevant to the decision) , but it became holding a decade later in the 1884 case of Elk v. Wilkins. The Supreme Court held in that case that the claimant — a Native American born on a tribal reservation — was not a citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “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. ” Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, ” “they were alien nations, distinct political communities, ” according to the Court, thereby making clear that its holding was about allegiance and not the reservation’s geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power) , although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof, ’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. ”

Professor Yoo is therefore simply mistaken in his claim that “the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory.” In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States — “domiciled” here, to use the Court’s phrase — was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.

Professor Yoo’s contention to the contrary overlooks the Court’s use of the word “domiciled” in describing the nature of Wong Kim Ark’s relationship to the United States. “Domicile” is a legal term of art; it means “a person’s legal home, ” according to Black’s law dictionary, and is often used synonymously with “citizenship. ” Wong Kim Ark’s parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were “domiciled” in the United States, which is to say, lawfully present in the United States. The holding of the case, as opposed to its broader dicta, does not mandate citizenship for children born to those who are unlawfully present in the United States, and it does not even mandate citizenship for those who are visiting the United States temporarily but lawfully. In both cases, the children, through their parents, retain allegiance to their parents’ home country — to a “foreign power, ” to return to the language of the 1866 Civil Rights Act. They are therefore not “subject to the jurisdiction” of the United States in the way intended by the 14th Amendment, and therefore not automatic citizens.

As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journal’s assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.

Professor Yoo’s description of the debate between Senators Cowan and Conness likewise misses the point. Cowan asked whether the Citizenship Clause would confer citizenship upon the children of Chinese parents who were living in California, or the children of Gypsies living in Pennsylvania. “Have they any more rights than a sojourner in the United States?” he asked. He was attempting to draw a distinction based on race or ethnic background, not on lawful versus unlawful presence in the United States, or even on permanent versus temporary presence. It was for that reason that Conness began his reply by stating that he failed to see what relation Cowan’s question had to do with the Citizenship Clause.

The 14th Amendment did not do away with sovereignty.

Conness then responded that automatic citizenship would be available to the “children begotten of Chinese parents in California” just as existed under existing law — that is, the 1866 Civil Rights Act, which extended citizenship to “all persons born in the United States, and not subject to any foreign power.” That guarantee was available no matter the ethnic background of the parents — we were not extending citizenship only to the descendants of white Europeans — but his response did not suggest that the children of those who were not lawfully present in the United States, or who were mere temporary visitors, would be automatic citizens. Indeed, Cowan’s own question — “Have [the children of Chinese or Gypsies domiciled in the United States] any more rights than a sojourner?” — demonstrates that he was also aware of the distinction between territorial and political jurisdiction. For the debate to support Professor Yoo’s position, Conness would have had to respond that even the children of sojourners would be entitled to automatic citizenship. There is not a hint in his response to suggest such an answer, nor in any other part of the entire debate. So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly. The Journal’s contention that conservatives who insist upon this understanding of the law “are promising a GOP version of President Obama’s ‘illegal amnesty order’” could therefore not be further from the truth. Constitutional originalism requires that we give effect to the public meaning of the words actually used, even if the Wall Street Journal would wish the meaning were otherwise. And the Journal’s further contention that anyone who wishes to see the 14th Amendment faithfully applied is claiming “that some people are not real Americans and have no right to be,” is simply another ad hominem attack and mischaracterization not worthy of an otherwise great newspaper.

Finally, let me close with some agreement with Professor Yoo’s soaring rhetoric at the end of his piece, much of which is entirely true. Yes, “rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. ” And yes, “It was the Republican party that opposed Dred Scott. ” And yes, “It was the Republican Party that fought and won the Civil War. ” And definitely yes, “it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. ”

But the 14th Amendment did not do away with sovereignty. It did not do away with the importance of citizenship, or with the idea, rooted in the Declaration of Independence, that legitimate governments are grounded on the consent of the governed. Birthright citizenship, as currently practiced, allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct. Those who oppose such an abuse do not support Dred Scott. They are drawing distinctions based not on race, but on the rule of law. Professor Yoo need not worry, therefore, that applying the 14th Amendment faithfully would “discard one of the greatest attributes of American exceptionalism. ” The welcome mat to American citizenship is open to anyone in the world regardless of race or ethnic background, as long as they adhere to the legal rules set out by Congress for immigration to this country.

~ John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at the Chapman University Dale E. Fowler School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.


http://en.m.wikipedia.org/wiki/John_C._Eastman

lindajoy Loc: right here with you....

Codified, ratified, rectified and RIGHTTTTTTT ONNNNNNN my friend!!!! You got it !!!

Worried for our children Loc: Massachusetts

Thank you for taking the time to read it.

In consideration of your agreement, I would like to examine this part of your earlier post, where Cruz is quoted.



The part in red, stated by his attorneys made me actually say "wow" aloud. If it matters where someone is born to be a citizen, then how does it not matter in order to be president...if it can, exclude someone, then surely it must be included...

The part in bold is different than the part that I underlined. And there's a big difference there.

The part I underlined was just covered by Mr. Eastman. And I don't see it as inconceivable at all, and I want to get to that, but first...

The part I put in bold raises a question for me. We agree that Cruz was born in Canada right? So, he couldn't have attained US citizenship by birthright at least not by where he was born, in and of itself, do we still agree? (I'm leaving his mother out this for the moment)

lindajoy Loc: right here with you....

Sometimes the simplicity of the issue is hidden by the subject itself...In this case, the simple fact is that Cruz was a natural born citizen born OF an American mother, correct? Regardless of where he was born, his citizenship is given in that birth, correct? So if he was already a citizen, need he also be born on this soil to be confirmed as such?? That is one of the issues addressed in earlier posts we have all made...

You can not remove the mother from the question because Cruz' natural born status is derived from her, correct??...

Does this answer your question??

Forget everything previous discussed, look at what his atty. said:

Of those three cases thrown out Cruz said; “Every reliable source from the time of the writing of the U.S. Constitution confirms that a person who was a U.S. citizen at birth — like Senator Cruz — Is he not a natural born citizen at birth, because he was born of an American citizen?--yes, he wasis a ‘natural born citizen’ eligible to serve as president,” Cruz’s attorneys wrote in the motion. “It is inconceivable that the Framers intended to exclude a U.S. citizen at birth from holding the office of president, simply because of where he or she happened to be born." If already a citizen at birth, then where born becomes moot, does it not? Almost like a double jeopardy clause~~one can not negate the other, right?

Birthright citizenship, born on our soil, as is discussed in your post is derived from people born on this soil, whereas Cruz' birthright is derived from an American mother, not an illegal residing here when the child was born here...Does this help??

Homestead

There are only two ways to be a citizen of any country.
1. Natural-Born-Citizen
2. Naturalized citizen

A Natural-Born Citizen is:
Born of two citizen parents, at the time of birth AND
Was born in the country of his parents.

Over the history of the world, some countries said that the rights of the father is passed through to the child and that determines the nationality of the child..

Some countries have decided that the soil you were born on, is the deciding factor of your nationality.

There may be matratrical societies that have decided that the rights of the mother passes through to the child to determine his nationality.

These kinds of decisions are made by law, congress. Parliament, Kings, Emperors or dictators. They all require acts and decisions by government.
The instant government is involved, you arte talking about a naturalized citizen.

If a child's father is an American citizen
and his mother is an American citizen
and the child was born in America,

What nationality is the child?
What country would the child naturally be loyal too?
Either a child is or he is not a Natural-Born-Citizen............Period!

You see the very facts of his birth make him a citizen. Unless you can change history, you can't change how a child was born.
Unless congress has a time machine, congress itself cannot make a Natural-Born-Citizen.


Ted Cruz is a Naturalized citizen.

But only a Natural-Born-Citizen can be president of the United States of America.

Why?

Letter to George Washington, John Jay
New York
July 25, 1787

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.
http://teachingamericanhistory.org/library/document/john-jay-to-george-washington/

Our forefathers were students of history. They were well aware of the troubles caused, when the nearest blood line to the throne, in England, was in Germany and a German prince was made King of England.

Do you think the German King changed himself to be more English?
Or do you think he used the power of the throne, to make the country of England more like the country of Germany?

Our country was founded on a simple premises. That premises was that the common man could rule himself. As long as the government stayed out of his way.

This is not an easy concept for foreigners to understand.

Unfortunately Americans don't seem to understand it anymore either.

In answer to Cruz's lawyer, our forefathers did in fact, denny just any citizen from becoming president. They wanted to do everything possible to ensure that the integrity of the president, who would have to take an oath of office to protect, defend and preserve the Constitution of the United States of America. would in fact do so.

hnealc

I am in doubt about point #1, but you are right on with point #2.
I like Cruz. Wish he would win the nomination. But, Trump in next best. If one votes for Rubio, they may as well vote for Billery!!! Little difference except one MAY NOT lie as much as the other.

hnealc

I heard that if the dems don't get the vote they made a deal with Puten to send the US back to the stone age with an EMF attack.

Kind of doubt it but I really believe that they are capable of such a thing, as long as they are protected. They sure haven't demonstrated much consideration for the ordinary folks.

Cheyenne Mountain ring a bell?

hnealc

Has it occurred to you that he couldn't prove it beyond a doubt is the reason he never called Obummer on it??

Only the truth, Mam, just the truth. Trump gave up on the idea, so Obummer has the real truth blocked really well.

And maybe nobody else wants to take the chance of 'mysteriously dying in an airplane crash'!!

Homestead

You know, that's exactly what I've been thinking about.

Given a choice of standing up for the Constitution and denying his political ambitions.
or
violating the Constitution to further his political ambitions.

I'm afraid that Ted Cruz, will violate any part of the Constitution, that gets in his way.

hnealc

I have never seen evidence of that. What do you base that assumption on?

Worried for our children Loc: Massachusetts

I was leaving his mother out of this in my previous post to draw a distinction of definitions/qualifications that constitute a US citizen. Outside of 'naturalization' there are three ways to become a US citizen, allow me to elaborate. I think we agree that being born on the soil, the term of art being called "jus soli" which the US employs, but not solely. This term of art obviously can't apply to Cruz because there is no doubt he was born in Canada, and not within the US or its territories.



Cruz being born in Canada does not qualify as a citizen based on this requirement alone, in fact it does not apply to him at all.

His mother being an American citizen is what gives Cruz his US citizenship status, by the term of art called "jus sanguinis" which the US also employs, but again, not solely. However, this is solely what gives Cruz his US citizenship status.



The US also recognizes this term in granting citizenship, and we agree that this is what covers Cruz to be 'considered as' a US citizen.

With that said, we also have this;



And this is my position/belief/perspective, the originalist perspective, also the dominant perspective today, among constitutional scholars of interpreting the words used in the constitution. Specifically here, when looking to define "natural born" - I believe (as do many constitutional scholars) the Framers chose this combination when they used the words 'natural born' contained in Article II, section 1, clause 5, and they did so intentionally. This combination was/is the only way to ensure the protection of national security, and the office of the President and/or Vice President, from foreign influence.

Meeting only one of the terms of art still makes one a US citizen, but it is meeting both terms that constitutes what a 'natural born' citizen is, and what is needed to hold the office of both President and Vice President.

I hold the opinion that 'non originalists' -the ones that believe the constitution is a "living document" and those that want to "fundamentally change" this country, intentionally misinform those with the Right to vote, to accomplish their agenda, by only providing half the facts, such as what is stated by Cruz' attorneys.
_____________________________________
Forgive me for being sometimes repetitive above.

I'm off to shoot some pool now, I'll try to check in later. 👍😁😎

Homestead

Well............................he's not a natural-Born-Citizen as required by the Constitution, yet he's still running for president.

His own lawyer pleaded before the court that he didn't think that the founders meant to preclude a citizen from running for president.

But, that is exactly what they intended, they did not want a naturalized citizen running for the presidency.

They only wanted a Natural-Born-Citizen running for that office.
They were trying to preclude foreign influence from corrupting the most powerful position in the country and indeed, the world.

Obama himself, is not a Natural-Born-Citizen and it was the responsibility of the Senate to protect the integrity of the White House.

Did you ever here Ted Cruz say anything about it.....................No, you didn't, because, he never said anything. why, because he intended to commit the same fraud.

lindajoy Loc: right here with you....

I am sorry I am just seeing this Worried...

You weren't being repetitive, you were being succinct in the reasoning behind your opinion...A fair analogy of it too...

I am attaching for your review another article you may have already seen? It, too, hits directly on the issues we have been talking about...

I know that Loki has commented about the things brought out in this article as well....It also basically recites what we're talking about right here in defining the fact that Cruz by birth of his American mother meets the criteria, period...

Take a look and tell me what you think...

http://trailblazersblog.dallasnews.com/2015/03/ted-cruz-is-eligible-for-president-despite-canada-birth-legal-duo-writes-in-harvard-law-review.html/

Homestead

“Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a `natural born Citizen’ within the meaning of the Constitution,” they argued."

This is how they try to muddy the water, in order to rewrite the Constitution, by redefining it.

First of, when our constitution was written, dual citizenship's were not allowed.
So when Cruz was born, Canada would have claimed him, as they did, because their law claims citizen by birth on their soil.

In other countries, in order for a women, to marry one of their men, she has to give up her citizenship of her country and take the citizenship of the country of her husband.

That's because all the rights of the child, comes through the father.

All this is worked out through laws and proceedings and that is the process of naturalization.

There are no proceedings when dealing with a Natural-Born-Citizen.

Where was the child born?..............................................In the country.
But, what country was the father a citizen of?................The same country.
But, what country was the mother a citizen of?..............Again, the same country.

So what country is the child a citizen of..........................................?

What if the country is like Canada, where it matters where your born?
What if the country is like England where the child gets his citizenship through his father?
What if the country says that the wife has to take the citizenship of the husband?
What if she comes from a country that says that the child has to get his citizenship through the mother.

In the case of a Natural-Born-Citizen, all of these questions have the same answer.

No naturalization process is needed, in any form. The child is a citizen through the facts of his birth........Period!

lindajoy Loc: right here with you....

We agree!!