The Briefing Room
General Category => Immigration/Border => Topic started by: rangerrebew on November 23, 2018, 02:39:12 pm
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Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment
Oct 30th, 2018 3 min read
Hans A. von Spakovsky
The 14th Amendment doesn’t say that all persons born in the U.S. are citizens. vlana/Getty Images
Key Takeaways
Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally.
Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
Birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.
https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment (https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment)
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Simply wrong.
The debates over the amendment’s language make it clear that a person is not subject to the jurisdiction of the US only if that person has some recognized immunity to some significant portion of US law, as was the case with foreign consuls, ambassadors, their staff as such, and members of the recognized Indian tribes. The mere fact that one might also be a private subject or citizen of another country did not mean that you were not subject to the jurisdiction of the US.
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Simply wrong.
The debates over the amendment’s language make it clear that a person is not subject to the jurisdiction of the US only if that person has some recognized immunity to some significant portion of US law, as was the case with foreign consuls, ambassadors, their staff as such, and members of the recognized Indian tribes. The mere fact that one might also be a private subject or citizen of another country did not mean that you were not subject to the jurisdiction of the US.
@Oceander
Hans is completely right and, as usual, YOU are completely wrong!
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@Oceander
Hans is completely right and, as usual, YOU are completely wrong!
Hans is simply wrong. He is wrong on the law, and he is wrong on the legislative history. The only individuals who were intended to be carved out were those who had a basis for immunity to some significant portion of US law. If that were not the case, then the only people to whom the Amendment would apply would be those whose parents were both already US citizens, and who furthermore did not have dual citizenship with some other country. That is clearly neither the effect of the language itself, nor the intent expressed through the legislative history.
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@Oceander
Hans is completely right and, as usual, YOU are completely wrong!
They said the same thing about the seven muslim country travel ban. Turned out SCOTUS thinks the president does have latitude in areas affecting national security.
And this clearly is such an area.
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They said the same thing about the seven muslim country travel ban. Turned out SCOTUS thinks the president does have latitude in areas affecting national security.
And this clearly is such an area.
That statement, in this context, makes no sense whatsoever.
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That statement, in this context, makes no sense whatsoever.
You're right, wrong thread.
I still think you need another hobby though.
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Hans is simply wrong. He is wrong on the law, and he is wrong on the legislative history. The only individuals who were intended to be carved out were those who had a basis for immunity to some significant portion of US law. If that were not the case, then the only people to whom the Amendment would apply would be those whose parents were both already US citizens, and who furthermore did not have dual citizenship with some other country. That is clearly neither the effect of the language itself, nor the intent expressed through the legislative history.
BS!
We've been over this ground before and YOU lost!
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 voted, 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.†As Thomas Jefferson earlier wrote, “aliens are the subjects of a foreign power,†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.
http://www.gopbriefingroom.com/index.php/topic,324093.msg1740258.html#msg1740258 (http://www.gopbriefingroom.com/index.php/topic,324093.msg1740258.html#msg1740258)
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BS!
We've been over this ground before and YOU lost!
http://www.gopbriefingroom.com/index.php/topic,324093.msg1740258.html#msg1740258 (http://www.gopbriefingroom.com/index.php/topic,324093.msg1740258.html#msg1740258)
Bullshit right back at you.
I haven’t lost because the Congressional debates are quite clear, if a little archaic, and clearly did not have the situation of illegal immigrants in mind for the simple reason that at that time, immigration wasn’t a matter of legality at the federal level. The first federal immigration laws that excluded certain classes of people weren’t enacted until the 1880s, long after the 14th amendment was debated and enacted.
The debates around the 14th made it clear that “subject to the jurisdiction thereof†covered everybody other than those individuals who had some significant immunity from US law based on that individual’s relationship to another sovereign, such as ambassadors and their staff, and Indians who were members of tribes (the so-called “wild Indians†in the debates).
I know it’s painful for you that the amendment gainsays your fondest ideological wishes, but that it does.
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Bullshit right back at you.
I haven’t lost because the Congressional debates are quite clear, if a little archaic, and clearly did not have the situation of illegal immigrants in mind for the simple reason that at that time, immigration wasn’t a matter of legality at the federal level. The first federal immigration laws that excluded certain classes of people weren’t enacted until the 1880s, long after the 14th amendment was debated and enacted.
The debates around the 14th made it clear that “subject to the jurisdiction thereof†covered everybody other than those individuals who had some significant immunity from US law based on that individual’s relationship to another sovereign, such as ambassadors and their staff, and Indians who were members of tribes (the so-called “wild Indians†in the debates).
I know it’s painful for you that the amendment gainsays your fondest ideological wishes, but that it does.
So Senator Lyman Trumbull doesn't know what he is talking about but @Oceander does! Forgive me for :bigsilly:
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Hans is simply wrong. He is wrong on the law, and he is wrong on the legislative history. The only individuals who were intended to be carved out were those who had a basis for immunity to some significant portion of US law. If that were not the case, then the only people to whom the Amendment would apply would be those whose parents were both already US citizens, and who furthermore did not have dual citizenship with some other country. That is clearly neither the effect of the language itself, nor the intent expressed through the legislative history.
Constitutional amendments are to purpose so what would have the the purpose to having anyone, with the stated exceptions, born on US soil be a citizen?
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Constitutional amendments are to purpose so what would have the the purpose to having anyone, with the stated exceptions, born on US soil be a citizen?
@endicom
There was only one purpose and they said so many times. The purpose was to incorporate the then existing statute into the Constitution.
You can read the debates in their entirety https://www.scribd.com/document/36527058/Congressional-Debates-of-the-14th-Amendment (https://www.scribd.com/document/36527058/Congressional-Debates-of-the-14th-Amendment)
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So Senator Lyman Trumbull doesn't know what he is talking about but @Oceander does! Forgive me for :bigsilly:
Trumbull pointed out that the term excluded the wild Indians because they were immune from much of US law on account of their membership in a tribe that was recognized as a separate sovereign.
In other words, Trumbull is saying the same thing I am.
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So Senator Lyman Trumbull doesn't know what he is talking about but @Oceander does! Forgive me for :bigsilly:
He's probably a lawyer for illegal immigrants.
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He's probably a lawyer for illegal immigrants.
@Oceander Are you an immigration attorney?
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@Oceander Are you an immigration attorney?
Nope.
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He's probably a lawyer for illegal immigrants.
Why would you assume that?
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@Oceander Are you an immigration attorney?
La Raza activist.
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La Raza activist.
And why would you assume that?
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Why would you assume that?
Why wouldn't I?
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Why wouldn't I?
I can think of any number of reasons, some charitable, some not.
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Trumbull pointed out that the term excluded the wild Indians because they were immune from much of US law on account of their membership in a tribe that was recognized as a separate sovereign.
In other words, Trumbull is saying the same thing I am.
You would think a American lawyer could read and properly interpret the English language but I see that is not so.
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You would think a American lawyer could read and properly interpret the English language but I see that is not so.
That’s just because you can’t read or understand English. My comprehension is just fine.
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That’s just because you can’t read or understand English. My comprehension is just fine.
You think that. But most people who learned english as a second language say the same thing.
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That’s just because you can’t read or understand English. My comprehension is just fine.
Really? Interpret this for me "Trumbull, who explained to the Congress before it voted, 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.â€
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Really? Interpret this for me "Trumbull, who explained to the Congress before it voted, 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.â€
And courts have ruled that American Indians are not automatically US citizens just because they were born with the US bounds. That's pretty definitive to me. If American Indians are not automatically US citizens then there's no way the 14th was intended to include anyone who happened to set toe across the border to give birth.
A subsequent law was passed, Dawes Act, was passed to allow American Indians to become citizens upon certain conditions being met.
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And courts have ruled that American Indians are not automatically US citizens just because they were born with the US bounds. That's pretty definitive to me. If American Indians are not automatically US citizens then there's no way the 14th was intended to include anyone who happened to set toe across the border to give birth.
A subsequent law was passed, Dawes Act, was passed to allow American Indians to become citizens upon certain conditions being met.
Seems so self explanatory. How can all of the "legal scholars" argue otherwise?
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I challenge the open borders proponents here show me the evidence in the 1860s that supports your position that birthright citizenship was enshrined in the 14th Amendment. Just give me one piece of evidence.
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Really? Interpret this for me "Trumbull, who explained to the Congress before it voted, 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.â€
Which in turn requires one to dig into the meaning of “allegiance†because otherwise if one does not, one is simply replacing one black box with another. A temporary visitor without a special relationship to another sovereign owes temporary allegiance to the sovereign that governs the territory in which he temporarily resides. That is discussed, albeit to a lesser degree, by Trumbull as well.
Furthermore, that cannot have the meaning you wish to ascribe to it, because it is tantamount to saying that only those whose parents were already US citizens could themselves become citizens, and only if born in the US.
This was clearly not the intent or understanding of the Congress when it debated the provision, as evidenced by the fact that all agreed that the provision would apply to the children of Chinese immigrants who themselves were still the subjects of the Chinese emperor and therefore would, under your view, not have been eligible for citizenship when they clearly were intended to be eligible.
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And courts have ruled that American Indians are not automatically US citizens just because they were born with the US bounds. That's pretty definitive to me. If American Indians are not automatically US citizens then there's no way the 14th was intended to include anyone who happened to set toe across the border to give birth.
A subsequent law was passed, Dawes Act, was passed to allow American Indians to become citizens upon certain conditions being met.
That’s because you haven’t read the debates, or the history. The wild Indians weren’t “subject to the jurisdiction thereof†because they were members of sovereign tribes and therefore had immunity to a significant part of US law, as Senator Trumbull was at pains to point out.
It was the immunity on account of a special relationship to another sovereign that prevented birthright citizenship from reaching the wild Indians, just as it did not reach the children of ambassadors.
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I challenge the open borders proponents here show me the evidence in the 1860s that supports your position that birthright citizenship was enshrined in the 14th Amendment. Just give me one piece of evidence.
The congressional debates on the language that became the 14th Amendment.
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That’s because you haven’t read the debates, or the history. The wild Indians weren’t “subject to the jurisdiction thereof†because they were members of sovereign tribes and therefore had immunity to a significant part of US law, as Senator Trumbull was at pains to point out.
It was the immunity on account of a special relationship to another sovereign that prevented birthright citizenship from reaching the wild Indians, just as it did not reach the children of ambassadors.
So the Indians, being subjects of a different sovereign nation, were not subject to A14, but Guatemalans, being subjects of a different sovereign nation, are subject to A14. That is something only a lawyer could make sense of.
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So the Indians, being subjects of a different sovereign nation, were not subject to A14, but Guatemalans, being subjects of a different sovereign nation, are subject to A14. That is something only a lawyer could make sense of.
No, it’s because, putting aside the prejudices of 1800s whites, the wild Indians were present within the territory of their own sovereign power exactly at the same time that they were within the territory of the US. They therefore owed allegiance to their tribe even when they were present in territory over which the US had power. That was not the case with someone who was no longer within the territorial confines of another sovereign of which they were a subject once the game to the US, as the debaters clearly recognized was the case with the Chinese who came here from China and who were therefore still the subjects of the Chinese emperor. That fact was acknowledged as not being sufficient to deny their children birthright citizenship. In point of fact, one of the Senators stated that he would vote against the amendment because it would grant citizenship to the children of Chinese immigrants but not to the Indians.
It’s exactly the same as with a foreign ambassador. Because of the ambassador’s special continuing relationship with his sovereign, he brings his foreign law with him in a way that a mere private individual would not, and does not owe temporary allegiance to the sovereign that governs the country where he is stationed, even though he would if he had simply visited as a mere tourist.
And yes, it does require that you be well-versed in the law, in how to read and apply the law, and how to research the meaning of terms within the law, and that you have a knowledge of things like the canons of construction. Merely having a high-school diploma and passing grades in English class is not enough.
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No, it’s because, putting aside the prejudices of 1800s whites, the wild Indians were present within the territory of their own sovereign power exactly at the same time that they were within the territory of the US. They therefore owed allegiance to their tribe even when they were present in territory over which the US had power. That was not the case with someone who was no longer within the territorial confines of another sovereign of which they were a subject once the game to the US, as the debaters clearly recognized was the case with the Chinese who came here from China and who were therefore still the subjects of the Chinese emperor. That fact was acknowledged as not being sufficient to deny their children birthright citizenship. In point of fact, one of the Senators stated that he would vote against the amendment because it would grant citizenship to the children of Chinese immigrants but not to the Indians.
It’s exactly the same as with a foreign ambassador. Because of the ambassador’s special continuing relationship with his sovereign, he brings his foreign law with him in a way that a mere private individual would not, and does not owe temporary allegiance to the sovereign that governs the country where he is stationed, even though he would if he had simply visited as a mere tourist.
And yes, it does require that you be well-versed in the law, in how to read and apply the law, and how to research the meaning of terms within the law, and that you have a knowledge of things like the canons of construction. Merely having a high-school diploma and passing grades in English class is not enough.
To all of my fellow racists, bigots, and white supremacists... Give thanks to God for giving us so many opportunities to use our white privilege to suppress, oppress, and enslave billions. Let us look forward to what new crimes we can commit in the name of white privilege this coming year including everything my ancestors did in the past to our indigenous population
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Which in turn requires one to dig into the meaning of “allegiance†because otherwise if one does not, one is simply replacing one black box with another. A temporary visitor without a special relationship to another sovereign owes temporary allegiance to the sovereign that governs the territory in which he temporarily resides. That is discussed, albeit to a lesser degree, by Trumbull as well.
Furthermore, that cannot have the meaning you wish to ascribe to it, because it is tantamount to saying that only those whose parents were already US citizens could themselves become citizens, and only if born in the US.
This was clearly not the intent or understanding of the Congress when it debated the provision, as evidenced by the fact that all agreed that the provision would apply to the children of Chinese immigrants who themselves were still the subjects of the Chinese emperor and therefore would, under your view, not have been eligible for citizenship when they clearly were intended to be eligible.
More BS and mumbo jumbo from you! It's very clear to me that you have a decidedly anti American agenda so take a hike!
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To all of my fellow racists, bigots, and white supremacists... Give thanks to God for giving us so many opportunities to use our white privilege to suppress, oppress, and enslave billions. Let us look forward to what new crimes we can commit in the name of white privilege this coming year including everything my ancestors did in the past to our indigenous population
:amen: At least three of my great grandfathers (many times great) and several others arrived here aboard the Mayflower so my family has been in on it from day one! Why stop now!
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More BS and mumbo jumbo from you! It's very clear to me that you have a decidedly anti American agenda so take a hike!
He was not born in America, He doen't get it..
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No, it’s because, putting aside the prejudices of 1800s whites, the wild Indians were present within the territory of their own sovereign power exactly at the same time that they were within the territory of the US. They therefore owed allegiance to their tribe even when they were present in territory over which the US had power. That was not the case with someone who was no longer within the territorial confines of another sovereign of which they were a subject once the game to the US, as the debaters clearly recognized was the case with the Chinese who came here from China and who were therefore still the subjects of the Chinese emperor. That fact was acknowledged as not being sufficient to deny their children birthright citizenship. In point of fact, one of the Senators stated that he would vote against the amendment because it would grant citizenship to the children of Chinese immigrants but not to the Indians.
It’s exactly the same as with a foreign ambassador. Because of the ambassador’s special continuing relationship with his sovereign, he brings his foreign law with him in a way that a mere private individual would not, and does not owe temporary allegiance to the sovereign that governs the country where he is stationed, even though he would if he had simply visited as a mere tourist.
And yes, it does require that you be well-versed in the law, in how to read and apply the law, and how to research the meaning of terms within the law, and that you have a knowledge of things like the canons of construction. Merely having a high-school diploma and passing grades in English class is not enough.
And even when they voluntarily left their tribe they still were not automatically considered citizens.
https://nativeamericannetroots.net/diary/617
https://caselaw.findlaw.com/us-supreme-court/112/94.html
Elk v Wilkins, 1884
John Elk was a Ponca who has left the jurisdiction of his tribe and moved to Omaha, Nebraska. He owned a home, paid taxes, and was a member of the state militia. When he attempted to register to vote, he was informed that he was not a U.S. citizen even though he had been born in the U.S. and therefore could not vote.
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And even when they voluntarily left their tribe they still were not automatically considered citizens.
https://nativeamericannetroots.net/diary/617
https://caselaw.findlaw.com/us-supreme-court/112/94.html
Elk v Wilkins, 1884
John Elk was a Ponca who has left the jurisdiction of his tribe and moved to Omaha, Nebraska. He owned a home, paid taxes, and was a member of the state militia. When he attempted to register to vote, he was informed that he was not a U.S. citizen even though he had been born in the U.S. and therefore could not vote.
If I understand @Oceander 's position correctly, I think the test case would have been the question of by-birth American citizenship of a child born to Elk, or to any other non-citizen Native American Indian, while not on tribal land (not within their own sovereign power) but still within the boundaries of the US. Given the record Oceander cites, it seems to me that a child born in those circumstances must have gained American citizenship by birth.
There must have been such births; are there known cases of the citizenship of those children being determined?
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If I understand @Oceander 's position correctly, I think the test case would have been the question of by-birth American citizenship of a child born to Elk, or to any other non-citizen Native American Indian, while not on tribal land (not within their own sovereign power) but still within the boundaries of the US. Given the record Oceander cites, it seems to me that a child born in those circumstances must have gained American citizenship by birth.
There must have been such births; are there known cases of the citizenship of those children being determined?
If the person, themselves, were not considered citizens, why would their children be? It only makes sense that the child be a subject to whatever the parent is a subject to. Otherwise the wording "subject to the jurisdiction thereo†within A14 is completely unnecessary.
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If the person, themselves, were not considered citizens, why would their children be? It only makes sense that the child be a subject to whatever the parent is a subject to. Otherwise the wording "subject to the jurisdiction thereo†within A14 is completely unnecessary.
Then why didn’t they limit it to persons whose parents were already citizens?
They didn’t. And they expressly considered the case of children born in the US whose parents were foreign subjects, in this case, the Chinese, and they accepted that those children would be citizens by birth.
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If the person, themselves, were not considered citizens, why would their children be? It only makes sense that the child be a subject to whatever the parent is a subject to. Otherwise the wording "subject to the jurisdiction thereo†within A14 is completely unnecessary.
I am suggesting that those children would have been considered citizens because they were born within the territory governed by the sovereign power of the United States, not within the territory governed by the sovereign power of their tribe. My question is whether the application to Native American Indians of the 14th Amendment actually led to that conclusion; I don't know whether it did or not.
My opinion is that the 14th Amendment was an understandable solution to a problem of its time, but does not work in the best interest of the United States today. Today government is viewed as provider, and transportation to points within the United States is much more available than in the 1860s; hence "anchor babies." Had I the authority to do so I would add the 14th to a list of amendments to be repealed or themselves further amended.
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Then why didn’t they limit it to persons whose parents were already citizens?
They didn’t. And they expressly considered the case of children born in the US whose parents were foreign subjects, in this case, the Chinese, and they accepted that those children would be citizens by birth.
Then why not word it:
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.
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If I understand @Oceander 's position correctly, I think the test case would have been the question of by-birth American citizenship of a child born to Elk, or to any other non-citizen Native American Indian, while not on tribal land (not within their own sovereign power) but still within the boundaries of the US. Given the record Oceander cites, it seems to me that a child born in those circumstances must have gained American citizenship by birth.
There must have been such births; are there known cases of the citizenship of those children being determined?
The senators who debated the 14th seem to have understood that an Indian who had given up his tribal affiliation would become subject to the jurisdiction of the US and his children could then become citizens.
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Then why not word it:
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.
Because that would have included the children of ambassadors, for example, as citizens if born in the US while their parents were posted here as diplomats. It would also confer citizenship on the children of a foreign conquering army.
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Because that would have included the children of ambassadors, for example, as citizens if born in the US while their parents were posted here as diplomats. It would also confer citizenship on the children of a foreign conquering army.
What makes the children of ambassadors not subject to the jurisdiction of the United States?
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The senators who debated the 14th seem to have understood that an Indian who had given up his tribal affiliation would become subject to the jurisdiction of the US and his children could then become citizens.
Thanks @Oceander, I defer to your reading of the record since I have not read it myself.
My question is actually not about an Indian who gave up tribal affiliation, it's about the child of an Indian born off the reservation. It seems to me that our current interpretation would require such a child to be determined a US citizen by birth, but I concede that application of the 14th to American Indians would have been a distinct case, not necessarily analogous to application to other nationalities.
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Thanks @Oceander, I defer to your reading of the record since I have not read it myself.
My question is actually not about an Indian who gave up tribal affiliation, it's about the child of an Indian born off the reservation. It seems to me that our current interpretation would require such a child to be determined a US citizen by birth, but I concede that application of the 14th to American Indians would have been a distinct case, not necessarily analogous to application to other nationalities.
I believe that the theory was that tribal affiliation was ambulatory until and unless the Indian gave it up. Merely going off reservation was not enough.