Our website is made possible by displaying online advertisements to our visitors.

Please consider supporting us by disabling your ad blocker.
Sign in to follow this  
Followers 0
Cinnamon

Here's how foreigners get to stay in America/ 14th Amendment

7 posts in this topic

http://thefederalist.com/2015/08/25/defining-american-birthright-citizenship-and-the-original-understanding-of-the-14th-amendment/

Defining ‘American': Birthright Citizenship And The Original Understanding Of The 14th Amendment

In response to increasing frustration with illegal immigration, lawmakers and activists are hotly debating various proposals to combat incentives to enter the United States outside legal channels. Economic opportunity is the strongest attraction, of course. But another magnet, some contend, is a long-standing provision of U.S. law that confers citizenship upon persons born within our borders.[1]

There is increasing interest in repealing birthright citizenship for the children of aliens – especially undocumented persons. According to one recent poll, 49 percent of Americans believe that a child of an illegal alien should not be entitled to U.S. citizenship (41 percent disagree).[2] Legal scholars including Judge Richard Posner contend that birthright citizenship for the children of aliens may be repealed by statute.[3] Members of the current Congress have introduced legislation and held hearings,[4] following bipartisan efforts during the 1990s led by now-Senate Minority Leader Harry Reid and others.[5]

These proposals raise serious constitutional questions, however. Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.

The Fourteenth Amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Repeal proponents contend that this language does not apply to the children of aliens – whether legal or illegal (with the possible exception of lawful permanent residents) – because such persons are not “subject to [U.S.] jurisdiction.” But text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.

One might argue that the Constitution’s emphasis on place of birth is antiquated. The requirement that only natural born citizens may serve as President or Vice President has been condemned on similar grounds.[6] But a constitutional amendment is the only way to expand eligibility for the Presidency, and it is likewise the only way to restrict birthright citizenship.[7]

And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey.

We begin, of course, with the text of the Citizenship Clause. To be “subject to the jurisdiction” of the U.S. is simply to be subject to the authority of the U.S. government.[8] The phrase thus covers the vast majority of persons within our borders who are required to obey U.S. laws. And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey.

Common usage confirms this understanding. When we speak of a business that is subject to the jurisdiction of a regulatory agency, it must follow the laws of that agency, whether it likes it or not.[9] When we speak of an individual who is subject to the jurisdiction of a court, he must follow the judgments and orders of that court, whether he likes it or not.[10] As Justice Scalia noted just a year ago, when a statute renders a particular class of persons “subject to the jurisdiction of the United States,” Congress “has made clear its intent to extend its laws” to them.[11]

Of course, when we speak of a person who is subject to our jurisdiction, we do not limit ourselves to only those who have sworn allegiance to the U.S. Howard Stern need not swear allegiance to the FCC to be bound by Commission orders. Nor is being “subject to the jurisdiction” of the U.S. limited to those who have always complied with U.S. law. Criminals cannot immunize themselves from prosecution by violating Title 18. Likewise, aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law.

Accordingly, the text of the Citizenship Clause plainly guarantees birthright citizenship to the U.S.-born children of all persons subject to U.S. sovereign authority and laws. The clause thus covers the vast majority of lawful and unlawful aliens. Of course, the jurisdictional requirement of the Citizenship Clause must do something – and it does. It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. Most notably, foreign diplomats and enemy soldiers – as agents of a foreign sovereign – are not subject to U.S. law, notwithstanding their presence within U.S. territory.

The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth.

Foreign diplomats enjoy diplomatic immunity,[12] while lawful enemy combatants enjoy combatant immunity.[13]Accordingly, children born to them are not entitled to birthright citizenship under the Fourteenth Amendment.

This conclusion is confirmed by history. The Citizenship Clause was no legal innovation. It simply restored the longstanding English common law doctrine of jus soli, or citizenship by place of birth.[14] Although the doctrine was initially embraced in early American jurisprudence,[15] the U.S. Supreme Court abrogated jus soli in its infamous Dred Scott decision, denying birthright citizenship to the descendents of slaves.[16] Congress approved the Citizenship Clause to overrule Dred Scott and elevate jus soli to the status of constitutional law.[17]

When the House of Representatives first approved the measure that would eventually become the Fourteenth Amendment, it did not contain language guaranteeing citizenship.[18] On May 29, 1866, six days after the Senate began its deliberations, Senator Jacob Howard (R-MI) proposed language pertaining to citizenship. Following extended debate the next day, the Senate adopted Howard’s language.[19] Both chambers subsequently approved the constitutional amendment without further discussion of birthright citizenship,[20] so the May 30, 1866 Senate debate offers the best insight into Congressional intent.

Senator Howard’s brief introduction of his amendment confirmed its plain meaning:

“Mr. HOWARD. … This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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 accredited to the Government of the United States, but will include every other class of persons.”[21]

This understanding was universally adopted by other Senators. Howard’s colleagues vigorously debated the wisdom of his amendment – indeed, some opposed it precisely because they opposed extending birthright citizenship to the children of aliens of different races. But no Senator disputed the meaning of the amendment with respect to alien children.

Senator Edgar Cowan (R-PA) – who would later vote against the entire constitutional amendment anyway – was the first to speak in opposition to extending birthright citizenship to the children of foreigners. Cowan declared that, “if [a state] were overrun by another and a different race, it would have the right to absolutely expel them.” He feared that the Howard amendment would effectively deprive states of the authority to expel persons of different races – in particular, the Gypsies in his home state of Pennsylvania and the Chinese in California – by granting their children citizenship and thereby enabling foreign populations to overrun the country. Cowan objected especially to granting birthright citizenship to the children of aliens who “owe [the U.S.] no allegiance [and] who pretend to owe none,” and to those who regularly commit “trespass” within the U.S.[22]

In response, proponents of the Howard amendment endorsed Cowan’s interpretation. Senator John Conness (R-CA) responded specifically to Cowan’s concerns about extending birthright citizenship to the children of Chinese immigrants:

“The proposition before us … relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”

Conness acknowledged Cowan’s dire predictions of foreign overpopulation, but explained that, although legally correct, Cowan’s parade of horribles would not be realized, because most Chinese would not take advantage of such rights although entitled to them. He noted that most Chinese work and then return to their home countries, rather than start families in the U.S. Conness thus concluded that, if Cowan “knew as much of the Chinese and their habits as he professes to do of the Gypsies, … he would not be alarmed.”[23]

No Senator took issue with the consensus interpretation adopted by Howard, Cowan, and Conness. To be sure, one interpretive dispute did arise. Senators disagreed over whether the Howard amendment would extend birthright citizenship to the children of Indians. For although Indian tribes resided within U.S. territory, weren’t they also sovereign entities not subject to the jurisdiction of Congress?

Whatever the correct legal answer to the question of Indian tribes, it is clearly beside the point.

Some Senators clearly thought so. Howard urged that Indian tribes “always have been in our legislation and jurisprudence, as being quasi foreign nations” and thus could not be deemed subject to U.S. law. Senator Lyman Trumbull (D-IL) agreed, noting that “it would be a violation of our treaty obligations … to extend our laws over these Indian tribes with whom we have made treaties saying we would not do it.” Trumbull insisted that Indian tribes “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States,” for “t is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.”[24]

Senators Reverdy Johnson (D-MD) and Thomas Hendricks (D-IN) disagreed, contending that the U.S. could extend its laws to Indian tribes and had done so on occasion.[25] Senator James R. Doolittle (R-WI) proposed to put all doubt to rest by adding the words “excluding Indians not taxed” (borrowing from language in Article I) to the Howard amendment.[26] But although there was virtual consensus that birthright citizenship should not be extended to the children of Indian tribal members,[27] a majority of Senators saw no need for clarification. The Senate ultimately defeated Doolittle’s amendment by a 10–30 vote, and then adopted the Howard text without recorded vote.[28]

Whatever the correct legal answer to the question of Indian tribes, it is clearly beside the point. The status of Indian tribes under U.S. law may have been ambiguous to members of the 39th Congress. But there is no doubt that foreign countries enjoy no such sovereign status within U.S. borders. And there is likewise no doubt that U.S. law applies to their nationals who enter U.S. territory.

Repeal proponents contend that history supports their position. First, they quote Howard’s introductory remarks to state that birthright citizenship “will not, of course, include … foreigners.”[29] But that reads Howard’s reference to “aliens, who belong to the families of ambassadors or foreign ministers” out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies.

Second, proponents claim that the Citizenship Clause protects only the children of persons who owe complete allegiance to the U.S. – namely, U.S. citizens. To support this contention, proponents cite stray references to “allegiance” by Senator Trumbull (a presumed authority in light of his Judiciary Committee chairmanship) and others, as well as the text of the 1866 Civil Rights Act.

But the text of the Citizenship Clause requires “ jurisdiction,” not “allegiance.” Nor did Congress propose that “all persons born to U.S. citizens are citizens of the United States.” To the contrary, Senator Cowan opposed the Citizenship Clause precisely because it would extend birthright citizenship to the children of

“people who … owe [my state] no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him.”[30]

Moreover, Cowan’s unambiguous rejection of “allegiance” formed an essential part of the consensus understanding of the Howard text. By contrast, the stray references by Trumbull and others to “allegiance” were made during the debate over tribal sovereignty, not alienage generally. Indeed, Trumbull himself confirmed that the Howard text covers all persons “who are subject to our laws.”[31]

Finally, repeal proponents point out that our nation was founded upon the doctrine of consent of the governed, not the feudal principle of perpetual allegiance to the sovereign.

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”[32] Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”[33]

Finally, repeal proponents point out that our nation was founded upon the doctrine of consent of the governed, not the feudal principle of perpetual allegiance to the sovereign.[34] But that insight explains only why U.S. citizens enjoy the right of expatriation – that is, the right to renounce their citizenship – not whether U.S.-born persons are entitled to birthright citizenship.

History thus confirms that the Citizenship Clause applies to the children of aliens. To be sure, members of the 39th Congress may not have specifically contemplated extending birthright citizenship to the children of illegal aliens, for Congress did not generally restrict migration until well after adoption of the Fourteenth Amendment.[35]

But nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens. To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.

The original understanding of the Citizenship Clause is further reinforced by judicial precedent. In United States v. Wong Kim Ark (1898), the U.S. Supreme Court confirmed that a child born in the U.S., but to alien parents, is nevertheless entitled to birthright citizenship under the Fourteenth Amendment. Wong Kim Ark was born in San Francisco to alien Chinese parents who “were never employed in any diplomatic or official capacity under the emperor of China.” After traveling to China on a temporary visit, he was denied permission to return to the U.S.; the government argued that he was not a citizen, notwithstanding his U.S. birth, through an aggressive reading of the Chinese Exclusion Acts.[36]

By a 6–2 vote, the Court rejected the government’s argument:

“The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. … To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”[37]

This sweeping language reaches all aliens regardless of immigration status.[38] To be sure, the question of illegal aliens was not explicitly presented in Wong Kim Ark. But any doubt was put to rest in Plyler v. Doe (1982).

Plyler construed the Fourteenth Amendment’s Equal Protection Clause, which requires every State to afford equal protection of the laws “to any person within its jurisdiction.” By a 5–4 vote, the Court held that Texas cannot deny free public school education to undocumented children, when it provides such education to others.

To be sure, the question of illegal aliens was not explicitly presented in Wong Kim Ark. But any doubt was put to rest in Plyler v. Doe.

But although the Court splintered over the specific question of public education, all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are “subject to the jurisdiction” of the U.S., no less than legal aliens and U.S. citizens.

<snip>

So, because of a technicality, we're being overrun is my take on this whole thing. They love their technicalities and waste no time exploiting the loopholes of the laws.  There is never going to be an amendment to fix this because anyone opposing this will be crucified on the racism cross. It's not just Mexicans anymore, at least Mexicans are mostly Catholic and have a lot more in common with Americans than the Muslims do. 

 

 

1 person likes this

Share this post


Link to post
Share on other sites

BOOM: Donald Trump Announces 5-Point Plan about ILLEGAL IMMIGRATION!

Read more: http://www.thepoliticalinsider.com/boom-donald-trump-announces-5-point-plan-about-illegal-immigration/#ixzz40yGagPyV

The liberal media and his primary opponents have falsely accused Donald Trump of not having specific policy plans.

But conservative Donald Trump just announced his bold, aggressive plan to secure the border. The 5 points are very specific, and would turn the tide against two terms of President Barack Obama’s amnesty agenda!

He is focused on the 14th Amendment, which falsely grants citizenship to babies born in America of illegal aliens. He wants to change that, and has 5 ideas on how to secure the border.

Here are Donald Trump’s 5 points about illegal immigration. This changes everything….

1) Build a fence, deploy 25,000 additional border agents, utilize Predator drones

Trump said there has been “mediocre success rates of the current crop of virtual fences that have been developed and tested.” However, large fences have been successful in various parts of Arizona. That’s why America needs a large border fence and more agents to stop the endless flood of alien criminals who cross everyday.

2) Enforce immigration law

There are strict immigration laws already in place. Sadly, America doesn’t have a President willing to enforce them. As Trump opined, “This wholesale abdication of a president’s constitutional duties is as shocking as it is foolish,” he wrote of Obama’s actions. “It’s political pandering of the worst kind.”

3) No more cozy detention centers

These centers are basically vacation resorts for illegal aliens. They are shameful. Illegal aliens should be deported now!

4) Oppose “DREAM Act”

<snip> 

Read more: http://www.thepoliticalinsider.com/boom-donald-trump-announces-5-point-plan-about-illegal-immigration/#ixzz40yGiXi48

1 person likes this

Share this post


Link to post
Share on other sites
7 minutes ago, Cinnamon said:

BOOM: Donald Trump Announces 5-Point Plan about ILLEGAL IMMIGRATION!

Read more: http://www.thepoliticalinsider.com/boom-donald-trump-announces-5-point-plan-about-illegal-immigration/#ixzz40yGagPyV

The liberal media and his primary opponents have falsely accused Donald Trump of not having specific policy plans.

But conservative Donald Trump just announced his bold, aggressive plan to secure the border. The 5 points are very specific, and would turn the tide against two terms of President Barack Obama’s amnesty agenda!

He is focused on the 14th Amendment, which falsely grants citizenship to babies born in America of illegal aliens. He wants to change that, and has 5 ideas on how to secure the border.

Here are Donald Trump’s 5 points about illegal immigration. This changes everything….

1) Build a fence, deploy 25,000 additional border agents, utilize Predator drones

Trump said there has been “mediocre success rates of the current crop of virtual fences that have been developed and tested.” However, large fences have been successful in various parts of Arizona. That’s why America needs a large border fence and more agents to stop the endless flood of alien criminals who cross everyday.

2) Enforce immigration law

There are strict immigration laws already in place. Sadly, America doesn’t have a President willing to enforce them. As Trump opined, “This wholesale abdication of a president’s constitutional duties is as shocking as it is foolish,” he wrote of Obama’s actions. “It’s political pandering of the worst kind.”

3) No more cozy detention centers

These centers are basically vacation resorts for illegal aliens. They are shameful. Illegal aliens should be deported now!

4) Oppose “DREAM Act”

<snip> 

Read more: http://www.thepoliticalinsider.com/boom-donald-trump-announces-5-point-plan-about-illegal-immigration/#ixzz40yGiXi48

Hell Yes! I like this 5 point plan, let's make it 6. Donald and the Border Patrol go to the border like this! :tongue:

http://i.imgur.com/mtXMxMX.jpg

Share this post


Link to post
Share on other sites

Simply enforcing the laws we have would go a long way.

 Although the children born are citizens their parents are not and should be deported as soon as they arediscovered.

The parents could give guardianship to a relative who is a citizen or to the state for adoption.

 If they choose not to then the child must leave with them.

When the child reaches legal age he or she should have the right to enter the country as a legal citizen but the parents still have to apply for citizenship on their own.

I think that would be a good deterrent.

Share this post


Link to post
Share on other sites
Guest
You are commenting as a guest. If you have an account, please sign in.
Reply to this topic...

×   You have pasted content with formatting.   Restore formatting

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

Sign in to follow this  
Followers 0

Our website is made possible by displaying online advertisements to our visitors.

Please consider supporting us by disabling your ad blocker.