Trump’s Critics Are Wrong about the Fourteenth Amendment and Birthright Citizenship

[Bigun]

Ed Meese, Edward J. Erler, PA. Madison, Mark Levin, And Andrew J. McCarthy - legal scholars all -  are all wrong and LUIS is right!

You bet!

[Bigun]

Add yet another!

Birthright Citizenship -- A Fundamental Misunderstanding of the 14th Amendment

By Hans A. von Spakovsky

Published January 14, 2011

What’s the citizenship status of the children of illegal aliens? That question has spurred quite a debate over the 14th Amendment lately, with the news that several states, including Pennsylvania, Arizona, Oklahoma, Georgia and South Carolina, may launch efforts to deny automatic citizenship to such children.

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally. But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

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.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual. The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens. 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.

As John Eastman, former Dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the Court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

Of course, the judges in that case were strongly influenced by the fact that there were discriminatory laws in place at that time that restricted Chinese immigration, a situation that does not exist today. The Court’s interpretation of the 14th Amendment as extending to the children of legal, noncitizens was incorrect, according to the text and legislative history of the amendment. But even under that holding, citizenship was not extended to the children of illegal aliens – only permanent, legal residents.

It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. citizens: They do not meet the 14th Amendment’s jurisdictional allegiance obligations. They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents. The same applies to the children of illegal aliens because children born in the United States to foreign citizens are citizens of their parents’ home country.

Federal law offers them no help either. U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.” The State Department has erroneously interpreted that statute to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S. Accordingly, birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

We are only one of a very small number of countries that provides birthright citizenship, and we do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation. Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former Justice Department official.


Hans A. von Spakovsky is a former Justice Department official. He is the co-author, with John Fund of  "Obama's Enforcer: Eric Holder's Justice Department" (Broadside/HarperCollins 2014). He is Manager, Election Law Reform Initiative and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

http://www.foxnews.com/opinion/2011/01/14/birthright-citizenship-fundamental-misunderstanding-th-amendment.html

[GourmetDan]

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens. 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.

Money quote...

[GourmetDan]

 
Have a friend who works with a lot of illegals and he asked them if they would fight if the U.S. had to defend itself from a foreign army.

"Oh no, we go back to Mexico" was the response.

They're just here for the money...

[aligncare]

Have a friend who works with a lot of illegals and he asked them if they would fight if the U.S. had to defend itself from a foreign army.

"Oh no, we go back to Mexico" was the response.

They're just here for the money...

I was born in Sicily but feel no allegiance to it. I would fight and die for the United States of America. As it happened I served in Vietnam and experienced what it's like to be the target of incoming Vietcong rockets at 3:00 AM.

[Luis Gonzalez]

Ed Meese, Edward J. Erler, PA. Madison, Mark Levin, And Andrew J. McCarthy - legal scholars all -  are all wrong and LUIS is right!

You bet!

Correct.

That and the fact that case law supports my position.

[Luis Gonzalez]

Section 1 - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

Two requirements:

1. Born ~~ in the United States
2. Subject to the jurisdiction thereof (the thing just mentioned, in this case, the United States).

So, once a person in born on U.S. soil and if that person is subject to U.S. laws and judicial authority, that person is a citizen.

So what types of persons are subject to the jurisdiction of the United States?

§ 515.329 Person subject to the jurisdiction of the United States.
The term person subject to the jurisdiction of the United States includes:
(a) Any individual, wherever located, who is a citizen or resident of the United States;
(b) Any person within the United States as defined in § 515.330;
(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.]
[50 FR 27437, July 3, 1985, as amended at 68 FR 14145, Mar. 24, 2003]

§ 515.330 Person within the United States.
(a) The term person within the United States, includes:
(1) Any person, wheresoever located, who is a resident of the United States;
(2) Any person actually within the United States;
(3) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and
(4) Any corporation, partnership, association, or other organization, wherever organized or doing business, which is owned or controlled by any person or persons specified in paragraphs (a)(1) or (a)(3) of this section.

What persons are NOT subject to the jurisdiction of the United States?

Diplomatic immunity is a status granted to diplomatic personnel that exempts them from the laws of a foreign jurisdiction.

The Vienna Convention of Diplomatic Relations (1961), which most states have ratified, offers diplomats acting as officials of state almost total protection from subjection to criminal, administrative, and civil laws belonging to the country in which the diplomatic mission is located. Diplomats assigned to missions located in foreign countries remain subject to the laws of their home countries. The diplomat's country of origin has prerogative over whether or not a host country may prosecute a diplomat under its (i.e. 'foreign') laws.

How far does this immunity extend?

22 U.S. Code § 254a - Definitions

(1) the term “members of a mission” means—
(A) the head of a mission and those members of a mission who are members of the diplomatic staff or who, pursuant to law, are granted equivalent privileges and immunities,
(B) members of the administrative and technical staff of a mission, and
(C) members of the service staff of a mission,
as such terms are defined in Article 1 of the Vienna Convention;
(2) the term “family” means—
(A) the members of the family of a member of a mission described in paragraph (1)(A) who form part of his or her household if they are not nationals of the United States, and
(B) the members of the family of a member of a mission described in paragraph (1)(B) who form part of his or her household if they are not nationals or permanent residents of the United States,
within the meaning of Article 37 of the Vienna Convention;
(3) the term “mission” includes missions within the meaning of the Vienna Convention and any missions representing foreign governments, individually or collectively, which are extended the same privileges and immunities, pursuant to law, as are enjoyed by missions under the Vienna Convention; and
(4) the term “Vienna Convention” means the Vienna Convention on Diplomatic Relations of April 18, 1961 (T.I.A.S. numbered 7502; 23 U.S.T. 3227), entered into force with respect to the United States on December 13, 1972.

Illegal aliens are not given any manner of immunity from U.S. laws, and as such and as defined by § 515.329(b) and § 515.330(2) they are persons "within the United States" so they are subject to the jurisdiction of the United States.

So, persons who do not have diplomatic immunity under the Vienna Convention of Diplomatic Relations (1961) and 22 U.S. Code § 254a can be arrested, charged with crimes, tried and sentenced. Illegal aliens in the United States can be arrested, charged with crimes, tried and sentenced, so their children that are born in the United States (requirement #1 in Section 1 of the XIV Amendment) and just like his or her parents being subject to the jurisdiction thereof (requirement #2 in Section 1 of the XIV Amendment), are citizens.

[Bigun]

Correct.

That and the fact that case law supports my position.

If you and Bill O'Reily just insist on making asses out of yourselves who am I to try and stop you!

[Luis Gonzalez]

If you and Bill O'Reily just insist on making asses out of yourselves who am I to try and stop you!

Me. O'Reilly, the Congress that passed the Amendment, at least 18 Supreme Court Justices, Eugene Volohk, Ilya Somin, Jim Ho... the list goes on.