Anchors Away?
Before all you nautical nerds yell at me, I know the correct phrase is "anchors aweigh."
http://en.wikipedia.org/wiki/Anchors_Aweigh
Anyway......
Lately there has been a lot of talk about the new Arizona 'immigration laws' and all that they entail. One of the latest arguments is the question of whether or not "anchor babies" should be denied naturalized status despite being born here.
"Lemme splain, no, that would take too long, lemme sum up..." Inigo Montoya, The Princess Bride.
An "anchor baby" is what people refer to as a child born to illegal immigrant parents but by the virtue of being born on US soil the child is a natural born American citizen and the parents are typically allowed to stay for the sake of "keeping families together."
In the past, an anchor baby was the road to citizenship. I was one of those anchor babies... my parents' legal status notwithstanding, (and I am NOT saying that they had me solely for that reason) the fact is that if you had a child here in the 70's, after a certain amount of time you were allowed to apply for citizenship and were rarely denied. Immigration laws in general were pretty lax in those days, and this was just one loophole. Getting married with an American, which you can still do, is still common practice. But no longer can you claim citizenship because your child is an American. Especially if you are illegal! Now I think the rule is that the child is an American with all the rights afforded all Americans, BUT, the parents have to leave. They can take the child with them, or leave him/her with relatives legally here. If they take the child back 'home', the child can return on his/her own with full citizenship status when they are 18. Don't quote that, I just think it's like 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." Senator Jacob Howard, Co-author of the citizenship clause of the 14th Amendment, 1866.
Republicans in Arizona have recently made a push for a law that would deny an 'anchor baby' his American Citizen status because they were born under false pretenses. (their parents being here illegally and by that logic the child should have never been born here)
Also, not all countries offer automatic citizenship by birth.
And until the 14th amendment was adopted and written into the Constitution, it was not offered here.
The 14th Amendment starts off like this....
"Section 1. 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...."
It was written to offer former slaves born in the USA full citizenship status.
Those are the Republicans arguments.... I actually have no opinion on the matter right now, I am more interested what everyone else thinks and more importantly, why they feel that way. PLEASE LEAVE RACISM OUT OF IT! That is not a valid argument.
I have a cousin, she is Ecuadorian. Her two daughters were born here. In my opinion, she was smart. When she got pregnant she applied for a visa to come visit the US. It was granted and she flew here 8-9 months pregnant. Her daughter was born an American. When her visa was up, she went back home. After some years, she became pregnant again. Once again, she came here to have her baby. On a personal level, I think she has given her 2 daughters the greatest gift on this planet. So for her, and them, I am glad.
Here is where the slope gets slippery. Article II, Section 5 of the Constitution requires that the President MUST be a Natural Born Citizen. The purpose for this being that the President's allegiance can never be questioned.
Now, my cousin's daughters were born here and are American citizens but for all intents and purposes, they are Ecuadorian. That is all they know, that is where they grew up, that is where all their friends and family are. (not including 'distant' cousins like me) If they were to rise to the office of the President of the United States of America, assuming they came here and made that their goal, where would their allegiance be? I personally believe that in matters concerning Ecuador at least, they would be Ecuadorian first.
Enter Barack Obama. Many dispute whether or not he actually was born on US soil. Is his allegiance first to America? Would he die for it? I personally also doubt this.
I want to know what you folks believe... please comment.
Do you agree or disagree that we should deny 'anchor babies' their American citizenship status.
July 17th, 2010 - 18:01
Two words “Manchurian Candidate”
The knee jerk reaction of most Americans would be that an illegal alien gives birth to a child and then that illegal alien cannot be made to leave to our country at least not without a fight and it just doesn’t seem fair to those who come here legally.
I think the most frightening of scenarios when it comes down to the issue of anchor babies is when its the illegal aliens intention to not stay here but rather take the newborn child back to their country and raise them with a hate for America an appetite for destruction with the sole purpose of existing – the destruction of the USA. So this child is raised up with a loyalty for their parents country and when the time is right they move back to America, wait the 10 years that is required to live on American soil and then they run for office. What better way to destroy America but from within and from the highest position of power.
In the end what cannot be denied here is that entering our country illegally is just that “illegal”.
July 18th, 2010 - 07:29
ahhh, agreed. But would you deny the babies born on U.S. soil their birthright of American citizenship?
July 18th, 2010 - 08:52
quite the conondrum….
July 19th, 2010 - 09:23
It is quite the conundrum for sure. If we are to be upholders of what the law stipulates, without prejudice, then we CANNOT away anchor babies. I can definitely appreciate what you are both worried about, inasmuch as a baby being brought back to foreign lands and raised with contempt for our beloved America. I’m afraid however, that the geographical location is scarce to the point. It is unfortunate, but very true that there are many kids, born in America AND raised in America, who are taught the hatred you speak of, right here in our land. Moreover, there are those families with foreign born parents, and some of which, even come here legally and raise their children here in the States, but do not assimilate themselves fully, into our culture, and our norms, and therefore, our love of country.
As for your original component of anchor babies and efforts to offer some kind of “pass” or amnesty to those families with American born children of illegal immigrants… I say… you don’t have to break up the families! You can all go back to from whence you came! It’s not like an American baby is going to be refused entry to Mexico or Ecuador! All of that breaking up the family talk is rhetoric designed to invoke emotion (the top virtue of the Liberal).
As for: “Republicans in Arizona have recently made a push for a law that would deny an ‘anchor baby’ his American Citizen status because they were born under false pretenses. (their parents being here illegally and by that logic the child should have never been born here)”. This is completely subjective. That is why the NFL got rid of the rule of reviewing whether or not a receiver landed out of bounds due to being pushed. In many cases, you simply can’t tell if the push was the cause or if the receiver would have landed out of bounds anyway. Same with this… other than doing some major “digging” by way of investigations, which are costly (like we need that), there is no way to tell if the person came here under false pretense, as it relates to the act of having a baby. For all we know, the person could have come here with every intention of working for a year, making some cash and going back home (wherever that may be). I know this doesn’t exculpate the parent of the original crime of coming here illegally, but in this case, not granting American citizenship would be penalizing the kid who committed no crime. Quite honestly, I think sending the parents back and keeping the kids here would send a very clear message to those who do come here for this purpose, that we are not going to leave them to continue to exploit this “emo”, NOT LEGAL, loophole. Of course that raises the question of what is to be done with the children of deportees.
A conundrum indeed…
July 20th, 2010 - 10:14
Way to go people, neither of you answered the question.
Yes or no? Deny ‘anchor babies’ (children born on US soil to illegal immigrant parents) citizenship, or NOT? That is the question which you both artfully dodged.
To respond to Junior, IT IS NOT SUBJECTIVE! The parents are illegal, this is very easy to look up. SS#, matching driver license, green card, birth certificate; You don’t need the Warrren commission to investigate every illegal’s intentions.
To try and ‘figure out’ what to do with the children is unnecessary, it’s been ‘figger’d out’ already. They stay under the guardianship of legal relatives or go back home with the parents.
So what say you…….
YES OR NO?
July 20th, 2010 - 19:28
Okay… short answer… No, do not deny. I read it to mean that “born under false pretense” meant that babies were ‘born’ as children of illegals. If you are proclaiming yourself “due process” and viewing this as the letter of the law, then is a child of murderer to be stripped of his/her citizenship by virtue of being born from a person who broke the law? Though you are correct that intentions would be irrelevant, so are interpretations of the rule of law, by you. So, unless you would deny a child entry to a school because he was the child of a pedophile, we should not strip a natural born American of his/her status because the parents broke the law.
Are you asking me to opine on whether or not anchor babies should be allowed to remain American citizens or what the allowable options are when an undocumented immigrant is apprehended (read your first and third paragraphs)?
No, we should not deny citizenship. Yes, you are right… “They stay under the guardianship of legal relatives or go back home with the parents.”
And what of the Obama baby you spoke of before? Are you going to retort? The fact these kids are being brought back to the other countries versus being raised in the US, is sadly, not very different in many first generation American-born families. There’s too many America haters living in our nation’s backyard, to worry about Americans being raised abroad.
July 20th, 2010 - 20:25
“Though you are correct that intentions would be irrelevant, so are interpretations of the rule of law, by you.”
What the eff is it that you think I am saying? What am I interpreting? I just presented all the arguments that were out there and asked everyone what they thought of it. Now if your answer is NO, that’s fine; I am not the one arguing with you or against you.
In your first response you stated your entire thinking process and how you came to your decision finally.(which in essence is exactly what I was asking for so thank you for that) What was lacking was the actual decision.
In your second posting you go on to accuse me of interpreting the law and then go on to compare apples and oranges as you commonly do.
Having said all that, maybe I wasn’t all that clear…
YES, that is what I am asking people to opine on. Should we, taking all that into account, DENY ANCHOR BABIES citizenship because they were born to illegal immigrant parents?
So let me apologize for not asking the question directly, that is my fault. When I am done posting this, I will go back to edit the original posting and just ADD (not remove anything) the direct question at the end.
July 21st, 2010 - 08:31
You are correct… my bad. You yourself did not interpret the intent of the proposed law to strip anchor babies of their citizenship and you did not editorialize. You did however, throw in (subconsciously or not) the irrelevant component of Section 1 of the 14th Amendment. This was, one, as you said, written to give former slaves, full citizenship. Secondly, pre-14th doesn’t really matter here, does it? The fact that it was written with intent to offer citizenship to slaves because they were born here and subject to the jurisdiction of our jurisprudence, does not preclude anchor babies from having the same rights… false pretense or not. I did not see any exclusions/conditions that you “presented” that would negate what the amendment asserts. Therefore, “false pretense” may or may not be subjective (depending on your perspective or frame of reference), but IT IS irrelevant. The part of the 14th Amendment you left out (and that SB1070 opponents wrongly cite) was “No State shall make or enforce any law which shall abridge the privileges or immunities of CITIZENS of the United States;…”. Therefore, the amendment must be amended to include verbiage stipulating the exception, or a new law enacted that “extends illegality” by virtue of being born of a person who entered/resides in the country illegally.
July 21st, 2010 - 10:34
Dude, are you high?
First off, let me REMIND you.. I am not arguing either side of it, so you don’t need to “chop down” whatever arguments were made for or against. (in your case, only the arguments against citizenship appear to need chopping down)
The 14th Amendment, section 1 is the part of our Constitution that decrees that any person BORN IN THE USA is automatically a citizen. HOW THE EFF IS THAT IRRELEVANT!??!? That’s what they are proposing, that we suspend or deny the 14th amendment to children of illegals. If there were no 14th amendment, we wouldn’t be having this conversation.
And NO, anything before the 14th amendment DOES NOT count. Count towards what anyway? It made anyone born on, before or since that day in the US a citizen.
“False pretense”, why is it that you seem to base your entire argument on this one phrase? OK, throw it out! That’s just the Republicans in Arizona’s opinions and reasoning. But if you look at it legally, they are illegals who shouldn’t be here and by virtue of them breaking the law their child was born here. That is all they mean by “false pretense”, but if you don’t like the phrase, forget it. No legal argument can be made with that. Why did you waste so much space parsing that down? So IT IS irrelevant except that its what they said.
I purposely left out the next part of the amendments that states that no state shall abridge the privileges or immunities of CITIZENS of the US because….. duh, first we have to identify the CITIZENS to be able to afford them or ‘abridge’ their rights!
Once again, I am not arguing for or against, but when you make inaccurate statements, I must try to bridge the gap of our understanding. I just don’t understand what is so hard to understand about what I write? Why is it that it is taken from entirely a different perspective, or assumed that it is written from one perspective or another.
I thought, and was hoping, that people would just say “I don’t agree because of this reason.” or “I agree because of that reason.”
I understand that if ALL the information you have on this topic is what is written above then that is why you may want to debunk those ideas, but that can’t be all there is to it.
What is in your gut? Maybe you have a personal anecdote to share. Let’s get the conversation going. I personally believe there is no right or wrong answer, but that’s just me.
I must also say that this is not just directed at Junior, (so don’t hate me bro) I think this kind of discourse is what is warranted. Let’s talk about it, not argue it.
July 21st, 2010 - 12:01
I don’t hate… On the contrary mon frere… I believe it IS the discourse that is warranted.
Okay, so now, what I meant by “the irrelevant component of Section 1 of the 14th Amendment”, is that you said, and rightfully so, that it was written to give citizenship to former slaves. It is therefore irrelevant because, again, it says “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.” So, the fact that they are born of illegal immigrants is of no consequence to the citizenship status of the child. Therefore there is no basis for even citing that part of the amendment. If we were in court for this case, I would say “Like I already said your honor, if there are no stipulated exclusions/conditions to be met that would allow the abridgment of the right of citizenship, then their citizenship is not something the child can be stripped of.” It is for this reason, that I said “no”. It was not some arbitrary opinion I pulled from my posterior section.
What I meant by “pre-14th” was that it doesn’t matter what the law was before the amendment… from then on, what the 14th postulated became the prevailing law. Not whether you were born before or after, but rather what your status was before and after.
Lastly, don’t me that gut shizzle! If we are going to assert that we are true conservatives and preservationists of the Constitution, then we should not even discuss the option to amend it for an “of the times” problem. It’s that mentality that has allowed our President to criticize the Constitution as outdated. We either carry out the will of the Constitution and afford every person born here said privilege or we go through the CORRECT amendment process of State Legislature ratification after it has received its two-thirds majority in both houses.
July 21st, 2010 - 14:41
OK! Now joo talkin, dat I like! It’s like you finally woke up from your slumber!
True, true and true. Great reasoning from a great mind put forth exquisitely on ‘paper’.
Only thing is, if there was no 14th amendment saying that people BORN here are CITIZENS. Then this conversation would not take place. The ONLY reason children of illegals are citizens is because of the 14th amendment in the Constitution. That is not irrelevant. It is the words in it that make you think it irrelevant because it is what negates the possibility of denial of natural born citizens in the first place.
I see where you went astray though….
“If we are going to assert that we are true conservatives and preservationists of the Constitution, then we should not even discuss the option to amend it for an “of the times” problem.” Junior.
Ahh-so Juniorsan, that is EXACTLY the purpose of the amendment process. We MUST ALWAYS discuss options for an “of the times” problem. The mentality that causes the President to criticize the Constitution is a different one. He is an asshole, that is why he does it. He doesn’t believe in it,(this in itself shows a lack of intelligence) that is why he does it. Liberals have no clue, that is why they do it.
We are meant to ALWAYS question our leaders and our government. The founding fathers put in the amendment process so that the country as a whole would get to decide the proper course of action and insure that no one man or small group could dictate to the rest of us what we should do. THIS is what the president doesn’t like. He said it himself in an interview that he wish he could just wave his finger an just ‘get something done’ instead of having to put it through congress first.
In the meantime…. we follow the law as it is written until there is enough groundswell to change something “through the CORRECT amendment process.”
That is why I threw in that little quote from the CO-AUTHOR of the 14th Amendment, Senator Jacob Howard, that even he had to account for certain exceptions to it.
That is what is so great about the Constitution. I know you realize how IMPOSSIBLE it is to get two thirds of BOTH houses to agree on something!? If they do, it must be serious enough and it needs to be changed.
-Just a side note here for everyone else…. 98 out of 100 senators voted to go to war in Iraq. They must have realized that it was necessary. Just had to throw that in.
July 21st, 2010 - 14:45
correction…. b4 dumb ass libs call me out…
OK, Congress voted overwhelmingly and 98 out of 100 senators voted to give the President (G.W. Bush) “authority” to go to war. Which he did after they told him he could.
July 21st, 2010 - 15:11
I struggled with this one.
I really should have weighed in last night before you both wrote such brilliant and informative information. Repeating it now would be redundant of me.
At this time I cannot answer yes or no. I am torn because I believe the constitution needs to be upheld but in this case it is being manipulated by criminals whether or not with malice it is being abused. Being born an American citizen is an honor and should not be gained by illegal means.
There are legal steps in which to take to become an American citizen it isn’t necessary to dishonorably take what is not rightfully theirs. It may take longer and require more patience but in the end the child could truly be proud and respect the sacrifice their parent was willing to make in order for them to be born an American.
July 21st, 2010 - 15:39
Excellent points… as smart as you are, however, surely you know that I would have to come back with something to rebut your Edwardian comment about my Juniorsan comment
Saying that the President is an asshole is not a legitimate reason for why he would circumvent the Constitutional process. It speaks only to his character and/or could be an excuse to someone trying to rationalize what the President is doing. One could say it is an exercise in explaining someones proclivities.
What I am referring to, is what liberals perceive to a limitation set forth by an outdated document and which impels them to disrupt or simply usurp the process. In other words paving the road to hell with “good” intentions.
Of course, we must always question our leaders and government, especially since they can only govern through the power given to them by the governed. However, I believe that not only is this an “of the times” issue, but it is also one that affects different states to varying degrees and so reaching consensus, in my opinion would be nothing short of impossible.
Lastly, if this stopped being a political hot button, and the federal government fully committed to sealing the borders and protecting its citizens, this would not even be an issue.
I say forget about anchor babies and their citizenship status, and focus on closing our borders, rejecting amnesty, reforming the legal process of entry into the US, and sending EVERYONE who is here illegally, back home and letting them go through the reformed, legal protocol. Sound unrealistic? No more so than getting Congressional Senators and Representatives with large Latino communities to propose, and states to ratify an amendment abridging American citizenship status. Good luck with that! The letters ACLU come to mind for some reason. After all this… I’ll say that I do not support taking away citizenship of children born in the US and from illegal immigrant parents. I would hope that the “fourth branch” of government and the campaign process, would not allow the election of a President whose allegiance would be questioned. Of course, fair media coverage and the formal vetting process of our elected officials seem to have been all but forgotten now… but that is a topic for another day.
July 21st, 2010 - 15:58
KUDOS.
I am on my feet giving you a standing ovation Junior.
That is exactly, almost word for word my feeling on the matter. It should never have gotten to this point and if we do, as you said, everything we’re supposed to do like closing the borders, denying social benefits, and preventing the hiring of illegals… then this would not even be an issue.
You hit the proverbial nail on the head with this one bro.
Congrats mon frere.
July 21st, 2010 - 15:59
How you like the Elian Gonzalez pic! LOL!
July 21st, 2010 - 16:07
Lauri, I can tell you from personal experience, that going through the legal process (however lax it was back in the 70s) does not change the family dynamic, as it relates pride and patriotism. My father, an American citizen, is still loyal to his native Ecuador. He identifies himself as Ecuadorian. He raised us to never forget where we came from, to speak nothing but Spanish at home, etc. He never forced us to claim to be Ecuadorian, but the influence was there. My mother, also an American citizen, on the other hand, has a horrible Latino accent, could not look more like a Hispanic, but has American flags all over her house and property… she told me to love my country and that I was American and I should be proud of it. Because the preponderance of my family and friends were of Hispanic origin or descent, I grew up identifying myself as an “American, but born of parents from Ecuador.” It’s like I wanted to bad to be from Ecuador, but factually speaking, I was in fact, an American.
It was not until I grew up and starting informing myself and seeing things through a different lens, that I started to realize what a great and free country I was born and raised. Nowadays I respond to the question that Latinos love asking “Where are you from?”, with “I’m American”. I hate that relatives of mine, who were and raised here, get tingles from singing the Ecuadorian national anthem. It’s not that I’m an Ecuador hater… I love Ecuador, but it’s like they know only what their parents teach them. I know that my situation is not what Chino was referring to in his example, but I think it illustrates the fact that allegiance is not determined by geographical location or where you are born. The law makes you a citizen by where you are born, but it is your family influence and your immediate surroundings that determine how you identify yourself, when you are still a child. It is later, that your own desire (or lack of) to educate yourself, that truly determine your allegiance.
July 21st, 2010 - 16:11
Lauri, I should add that my intent was not at all to condescend to you for your reluctance. It can be an emotionally taxing subject. I just meant that the foreign influence is there regardless of whether or not the parents came here illegally and regardless of whether the parents are able to get away with it and raise the kid here or in their native country.
July 21st, 2010 - 16:13
Chinny Chin Chino! Great minds think alike. We should just run for office!
July 21st, 2010 - 16:15
Ever seen ‘Idocracy’? LMAO! President Camacho!! Nuff said!! hahahaha You have to watch that. Super dumb movie but genius at the same time.
July 21st, 2010 - 16:16
Elian! Elian! Elian!
July 22nd, 2010 - 06:49
Junior, I don’t feel that you were being condescending at all in any of your statements. I appreciate your candidness and honesty in sharing your personal experience and your awakening so to speak, as an American.
I am 7th generation American and there has been a family member be it a cousin, nephew or uncle who has fought defending this great country of ours in every war since the beginning of America.
I can sympathize with your situation of divided cultures and nationality when you were growing up even though it is something I never had to experience first hand, I can imagine it was quite difficult to understand in your youth and it reminds me that just because someone is born here it does not always mean they benefit from the knowledge that they know no other land but this land as home.
United we stand, divided we fall.
July 22nd, 2010 - 06:59
We saw “Idiocracy”
IN THE DEEPEST OF ANNOUNCER VOICES
“Meanwhile, the population exploded, and intelligence continued to decline until humanity was incapable of solving even it’s most basic problems. Like garbage, which had been stacked for centuries with no plan whatsoever leading to the Great Garbage Avalanche of 2505, which would set in motion the events that would change the world forever.”
July 22nd, 2010 - 07:14
Don’t even get me started… there are so many great quotes in there… like the especially relevant one of the President saying “Shit. I know shit’s bad right now, with all that starving bullshit, and the dust storms, and we are running out of french fries and burrito coverings. But I got a solution.”
“That’s what you said last time, dipshit! Yeah, I got a solution, you’re a dick! South Carolina, what’s up!”
Love it!
July 22nd, 2010 - 07:15
Actually I can already hear the VEEP saying that today!
July 22nd, 2010 - 08:12
“Its got electrolytes”
July 22nd, 2010 - 12:50
Lead, follow or get out of the way. I always get out of the way!
August 17th, 2010 - 09:50
Testimony of Edward J. Erler Professor of Political Science, California State University, San Bernardino and Senior Fellow, The Claremont Institute for the Study of Statesmanship and Political Philosophy
Before the Subcommittee on Immigration and Claims
June 25, 1997
It is my considered opinion that Congress has authority under Section 5 of the Fourteenth Amendment to define the jurisdiction of the United States. Indeed, it is my contention that Congress has exercised that power on many occasions, most recently in the Immigration Reform and Control Act of 1986.
Senator Jacob Howard, the author of the citizenship clause in the Fourteenth Amendment, defined who would fall within the “jurisdiction of the United States”:
[E]very 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Clearly, the author of the citizenship clause intended to count “foreigners,” “aliens,” and those born to “ambassadors or foreign ministers” as outside the “jurisdiction of the United States.” Senator Howard knew, as his reference to natural law indicates, that the republican basis for citizenship is consent. This is the natural law principle of the Declaration of Independence that proclaims that legitimate governments derive “their just powers from the consent of the governed.”
Senator Lyman Trumbull, Chairman of the Judiciary Committee and a powerful supporter of the Fourteenth Amendment, remarked on May 30th, 1866, that the jurisdiction clause includes those “Not owing allegiance to anybody else. . . It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.” This was familiar language. The Civil Rights Act of 1866 had defined citizens of the United States as “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” It is universally agreed that the immediate impulse for the passage of the fourteenth amendment was to constitutionalize the Civil Rights Act of 1866. This was an attempt to put the question of citizenship and matters of Federal civil rights beyond the reach of simple congressional majorities. Thus it is clear that the idea of allegiance (“not subject to any foreign power”) was somehow central to understanding the jurisdiction clause of the fourteenth amendment.
Much of the debate about the jurisdiction clause in the Congress centered on the status of Indians. The immediate question was whether the fourteenth amendment would confer citizenship upon the Indians as well as upon the newly freed slaves. The former slaves, of course, had been born in the United States and had always been subject to its jurisdiction. Was the same true of Indians? Indians were surely born in the United States, but were they subject to its jurisdiction in the sense of “[n]ot owing allegiance to anybody else?” Senator Trumbull noted that “[t]he provision . . . that all persons born in the United States, and subject to the jurisdiction thereof, are citizens’. . . means subject to the complete jurisdiction thereof.” Trumbull proceeded to deny that Indians were “in any sense subject to the complete jurisdiction of the United Sates . . . We make treaties with them, and therefore they are not subject to our jurisdiction. . . . It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is subject to the jurisdiction of the United States’.”
The author of the citizenship clause, Senator Howard, emphatically agreed with Trumbull’s assessment that Indians would not become citizens of the United States as a result of the passage of the fourteenth amendment:
the word jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certain, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction.
Clearly, insofar as Indians owed tribal allegiance they were not within the jurisdiction of the United States, even though there were born within its territorial limits and in many instances subject to its laws. It is important to note here that jurisdiction does not mean simply subject to the laws of the United States. Rather, it refers specifically to political jurisdiction in the sense of allegiance. Aliens in the United States are properly subject to the laws of the United States and the jurisdiction of its courts; but this is not the same as owing allegiance to the United States. Aliens subject to the laws of the United States still owe allegiance to another country and are thus not within the political jurisdiction of the United States the only jurisdiction contemplated by the fourteenth amendment.
In 1870, the Senate directed the Judiciary Committee to “report to the Senate the effect of the fourteenth amendment to the Constitution upon the Indian tribes of the country; and whether by the provisions thereof the Indians are not citizens of the United States.” The Committee report noted that “[t]he inference is irresistible that the amendment was intended to recognize the change in the status of the former slave which had been effected during the war, while it recognizes no change in the status of the Indians. The report’s conclusion was unequivocal:
those who framed the fourteenth amendment, and the Congress which proposed it, as well as the legislatures which adopted it, understood that the Indian tribes were not made citizens, but were excluded by the restricting phrase, “and subject to the jurisdiction,” and that such has been the universal understanding of all our public men since the amendment became a part of the Constitution.
Thus it seems to be beyond cavil that the jurisdiction clause of the fourteenth amendment was intended by its framers to have independent force; not all persons born in the geographical limits of the United States are within the jurisdiction of the United States. To be within the jurisdiction of the United States means to be within its political jurisdiction. Those who today advocate birth-right citizenship for children of illegal aliens born within the geographical boundaries of the United States believe that the fourteenth amendment extends to these children what the framers of the fourteenth amendment said did not extend to Native Americans.
As the Supreme Court said in Elk v. Wilkins (1884), “[t]he evident meaning of [the jurisdiction clause] is, not merely subject in some respect or degree to the to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance . . . 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,’ . . . 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.” In this case, Elk had renounced his tribal allegiance and had lived for some years apart from the tribe. But the Court was adamant that the ascription of citizenship could not be a unilateral or self-selected act. “The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States” signified either by treaty or legislation. Neither “the Indian Tribes” nor “individual members of those Tribes,” no more than “other foreigners” can “become citizens of their own will.” It must be emphasized that no individual can be made a citizen against his will or consent. Yet, self-selected citizenship is not enough; it must be ratified by those are already members of the political community. As the Court concluded, the jurisdiction requirement of the fourteenth amendment embodied “the principle that no one can become a citizen of a nation without its consent.”
The Supreme Court in Elk noted that several congressional acts had been passed subsequent to the fourteenth amendment to bring various Indian tribes within the jurisdiction of the United States, acts “which would have been superfluous if they were or might become, without an action of the government, citizens of the United States.” In this regard, the Court mentions the “Act of July 15, 1870,” extending the jurisdiction of the United States to any member of the Winnebago tribe who desired to become a citizen. A similar act was passed on March 3, 1873, extending jurisdiction to members of the Miami tribe of Kansas. Indeed, this was the method used by Congress exercising its section 5 powers to enforce the provisions of the fourteenth amendment to bring various members of Indian tribes within the jurisdiction of the United States. General legislation was passed in the Indian Citizenship Act of 1924 which provided that “all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.” Most recently, the amnesty provision of the Immigration Reform and Control Act of 1986 extended the jurisdiction of the United States to include illegal aliens residing in the United States for a specified period. Thus, Congress has a long history of exercising its section 5 powers to define who falls within the jurisdiction of the United States.
In the case of the children born to aliens illegally in the United States, their citizenship would follow the citizenship of their parents or be determined by the laws of the country in which the parents hold citizenship. The fact that illegal aliens have violated laws of the United States precludes any possibility that they can be properly said to be within the jurisdiction of the United States as the aliens surely have demonstrated that they do not believe themselves to be subject to the laws of the United States, or are only partially subject. Contrary to a currently fashionable argument, the denial of birth-right citizenship to children of illegal aliens does not punish the children for the sins of the parents because the children don’t have a right to citizenship in the first place they are being denied nothing that is rightfully theirs. It would, of course, be a different matter for the children born of legal aliens who have been admitted by the laws of the United States. Whether their children would be citizens at birth or upon the attainment of citizenship by the parents would be a matter for Congress to determine.
Congress, of course, has plenary power, under terms of Article I, Section 8 of the Constitution, “to establish an uniform Rule of Naturalization.” By necessary inference, Congress has the power to regulate immigration and set the terms by which those who are legally admitted can remain in the country. It certainly can establish the standards for which the contract of citizenship can be offered and the qualifications of those to whom it will be proffered. I believe that Congress is fully competent, under the fourteenth amendment, to pass legislation defining those who are “subject to the jurisdiction” of the United States. It does not require a constitutional amendment to withhold citizenship from children born in the United States of illegal alien parents. Their parents are not “subject to the jurisdiction” of the United States and they seek citizenship for their children without the consent of the nation. It defies logic to insist that an illegal act on the part of parents can confer the boon of citizenship upon their children. The nation has specified the terms of its consent in the uniform rules for naturalization and laws governing immigration.
The argument for birth-right citizenship is, of course, more suitable to feudalism than it is to republicanism. Under the feudal concept of citizenship, anyone born under the protection of the sovereign owed perpetual allegiance or fealty to the sovereign. It is hardly credible that the framers of the American Constitution would have contemplated a basis for citizenship that had its origins in the feudal regime. Indeed, in basing citizenship on the consent of the governed, the obligations of citizenship were placed on an entirely new and republican basis. The Reconstruction Congress recognized this point when it passed the Expatriation Act of 1868. This act a companion piece to the fourteenth amendment was an explicit rejection of birth-right citizenship as the ground for American citizenship. It simply declared that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” Thus the English common law doctrine of birth-right citizenship was decisively rejected as incompatible with the principles of consent embodied in the Declaration of Independence. After all, the Declaration of Independence announced to the world that Americans no longer considered themselves to be British citizens. If Americans held to the notion of birth-right citizenship, they would have been incapable of declaring their independence from Britain!
Senator Howard, the author of the fourteenth amendment’s citizenship clause, stated in his support of the Expatriation Act that the principles of the Declaration of Independence necessarily mean that “the right of expatriation. . .is inherent and natural in man as man. . .” The notion of birth-right citizenship was frequently described as an “indefensible feudal doctrine of indefeasible allegiance.” One member of the House of Representative gave expression to the general sense of the Congress when he concluded that “[i]t is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.”
Blackstone had described the allegiance required by the English doctrine of birth-right citizenship in these terms:
Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection . . . . Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance . . . For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be divested without the concurrence act of that prince to whom it was first due.
The English common law became a part of the American system only insofar as it was consistent with the principles of republican government. James Madison wrote that one “fundamental principle of the revolution” was the assertion of the competence of American legislatures to pass legislation independently of the common law. In some cases, aspects of the common law were accepted as a matter of convenience, in others it was rejected outright as incompatible with the principles of a free and self-governing nation. Surely the notion of birth-right citizenship, with its requirement of indefeasible allegiance to a king, was one of those aspects of the common that was rejected by the principles of the Declaration of Independence.
Among a host of other considerations, birth-right citizenship denies that the people always retain the natural right to revolution, a right that is the fundamental right of rights described in the Declaration of Independence. As Representative Norman B. Judd remarked on the floor of the House in the debate over the Expatriation Act, “the English common law was not adopted. . . except so far as applicable to our situation and our form of government. . . . The very origin and nature of our institutions utterly forbid the idea that the doctrine of perpetual allegiance’ is consistent with our institutions.” Representative Judd further specified the precise sense in which the common law doctrine of birth-right citizenship was inconsistent with the principles of “our institutions:” “The right of expatriation is clearly implied as inalienable in the enumeration of rights in the Declaration of Independence, and its obstruction was one of the wrongs charged by the colonies against the English crown.” There can be no doubt whatsoever that the fortieth Congress that passed the Expatriation Act believed that it contained a thoroughgoing repudiation of the English common law notion of birth-right citizenship and its attendant requirement of perpetual allegiance. Since this Act was contemporaneous with the adoption of the fourteenth amendment, there can be little doubt that it also embraced the principle of citizenship that was embodied in the amendment. Reciprocal consent is the principle of citizenship embraced in the fourteenth amendment and the Expatriation Act is a confirmation of that principle.
Chief Justice Fuller remarked in his dissenting opinion in United States v. Wong Kim Ark (1898), that in the American Revolution “when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the colonies, in derogation of the principles on which the new government was founded, was abrogated.” It was emphatically the case, Fuller rightly argued, “that the rule making locality of birth the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution.” Indeed, the consensual basis of citizenship, so far from creating a permanent and indissoluble allegiance to the sovereign, maintains “the general right of expatriation, to be exercised in subordination to the public interests and subject to regulation.”
The majority decision in Wong Kim Ark failed to make an adequate case for American adoption of the English common law basis of citizenship. Wong Kim Ark’s parents were legal residents of the United States but were rendered ineligible for citizenship by both statutes and treaty; and they still maintained their allegiance to China. The Court nevertheless held wrongly in my view that Wong Kim Ark, having been born within the territorial limits of the United States, had birth-right citizenship. The majority opinion failed to see that the English common law of birth-right citizenship was not only contrary to the principles of the founding, but had been explicitly rejected by the fourteenth amendment and the Expatriation Act. In any case, there has never been a Supreme Court opinion holding that the children of illegal aliens are entitled to American citizenship by virtue of their birth within the geographical limits of the United States. Jurisdiction is not a geographical concept; it is a matter of political allegiance. Birth-right citizenship has no place in republican government; it is the relic of monarchy and should be recognized as such once again by Congress.
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