After stating in a post that Donald Trump seemed to not be aware that birthright citizenship is a right granted by the 14th Amendment to the U.S. Constitution, I have received a number of emails, as well as some comments at the post, objecting to my take on the 14th Amendment.
They all write that the clause in the 14th Amendment, "subject to the jurisdiction thereof," negates absolute birthright citizenship, and point me to this article: Automatic Citizenship (AC).
Before I delve into the heart of the matter, I do want to make clear that I am not a Constitutional scholar and in general I am not a big fan of the Constitution. I would be against birthright citizenship, whether it was in the Constitution or not.
That said, bordering closely on something that is therefore purely an academic exercise, and given that I am not a Constitutional scholar, please allow me to plunge into the debate and offer comment on what appears to be the situation, anyway.
At the core of the AC essay is focus on what Senator Jacob Merritt Howard intended the clause, "subject to the jurisdiction thereof," to mean, since he was, according to the AC paper, the Senator who "crafted much of the language that was eventually ratified as part of the 14th Amendment."
During the debate on the floor of the Senate, Howard said:
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.But the AC paper that is being sent to me pulls some sneaky shit. This is how AC presents Howard's floor comment:
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, [or] 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.I have highlighted in red what the AC paper has added for "clarification." The addition of the "or" adds a significant alternative sense to what Howard possibly meant in his comment. With the "or" added, this is how Howard's statement must be understood:
Persons born to
1. foreigners
2. aliens
3. to the families of ambassadors or foreign ministers
are not US citizens.
Taking the "or" out, which I emphasize was not in Howard's statement. The statement could just as well have meant:
Persons born to:
1. foreigners who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.
2. aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.
are not US citizens.
Further, if the intention of the Amendment was to prevent birthright citizenship for foreigners and aliens, why is the further designation made "who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States" necessary?
"Families of ambassadors or foreign ministers accredited to the Government of the United States" are by Howard's definition foreigners.
The only way the clause makes any sense is if Howard means foreigners are granted birthright citizenship unless they come here as the families of ambassadors or foreign ministers, "subject to the jurisdiction thereof,"
We have further confirmation of this via comments by other Senators and the President at the time. Again I am not a scholar on this, so I do note this comes from Wikipedia and there may be other ways to view these statements, but to me, it sure appears like convincing evidence that the intention was to grant birthright citizenship to those born in the United States of foreign parents (with the exclusion being children born to foreign diplomats). From Wikipedia (my bold):
During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Citizenship Clause—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."[45] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[46][47] However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion[48][49][50]---
48.Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498. The debate on the Civil Rights Act contained the following exchange:From Johnson's veto of the Civil Rights Act:
Mr. Cowan: “I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?”
Mr. Trumbull: “Undoubtedly.”
...
Mr. Trumbull: “I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.”
Mr. Cowan: “The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.”
Mr. Trumbull: “If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European.”
49. Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2891-2. During the debate on the Amendment, Senator John Conness of California declared, "The proposition before us, I will say, Mr. President, 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. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate that same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage, whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal Civil Rights with other citizens.".
50. See veto message by President Andrew Johnson
By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races, born in the United States, is by the bill made a citizen of the United States.It is tremendously difficult to read Johnson's statement and not believe when he writes "all persons born in the United States, and not subject to any foreign power," he is referring to those born to ambassadors, foreign ministers etc., when he references persons subject to foreign power." And it is impossible to read Trumbull's statement without understanding that he holds the opinion that citizenship is to be granted to all those born in the US to foreigners (excluding foreign diplomats).
Therefore, is seems from my perspective that the original intent of the 14th Amendment and the correct way of interpreting it is that the Amendment grants to all born in the US are to be granted citizenship (except foreign diplomats, those foreigners working for diplomats etc.).
Thus, Trump, a recognized Constitution hugger, is calling for the end to birthright citizenship, which is now granted by the Constitution he hugs.
Robert Wenzel is Editor & Publisher at EconomicPolicyJournal.com and at Target Liberty. He is also author of The Fed Flunks: My Speech at the New York Federal Reserve Bank. Follow him on twitter:@wenzeleconomics
As can be found in the links I referenced at http://www.targetliberty.com/2015/08/an-examination-of-donald-trumps.html?showComment=1439907932069#c1010104325978342013 :
ReplyDelete-- "Senator Lyman Trumbull [stated] that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction, "[n]ot owing allegiance to anybody else.""
"The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court-by both the majority and the dissenting justices-in The Slaughter-House Cases.[7] The majority in that case correctly noted that the "main purpose" of the clause "was to establish the citizenship of the negro" and that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."[8]" (This was later, incorrectly, overturned by another decision.) (From Feudalism to Consent : Rethinking Birthright Citizenship)
-- "In the [ ... ] Slaughterhouse Cases, the court ruled that “the phrase ‘subject to its jurisdiction’ was intended to exclude from [birthright citizenship] children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Thus, in 1884’s Elk vs. Wilkins, the court ruled that Indian children were not citizens of the United States. The court ruled that citizenship “is a political privilege that no one, not born to, can assume without its consent in some form.” As well, it ruled, “no one can become a citizen of a nation without its consent.”
Concludes Graglia: "The decision seemed to establish that American citizenship is not an ascriptive (depending on place of birth), but is a consensual relation, requiring the consent of the United States as well as the individual. This would clearly settle the question of birthright citizenship for children of illegal aliens."" (Arizona Attacks Birthright Citizenship )
-- Felix
It is good to see your reading comprehension problem continuing from post to post. Do you not understand what Trumbull is saying in footnote 49 referenced by Wenzel, when he was speaking about Asian on the floor of the Senate?
DeleteAnd nobody is disputing that the basis of the Civil Rights Act was to address the status of blacks.
Also, why aren't you quoting directly form statements by Trumbull and Howard, like Wenzel does? Instead of interpretations that contradict actual statements by Trumbull and Howard. Wenzel already showed us where these interpretations out of American Conservative lead.
DeleteI wrote this in a cogent and well-reasoned comment, then pressed “preview,” and the whole thing disappeared. So you get this now.
ReplyDeleteCaveat: I’m an ancap. State borders and citizenship are b.s. But I’ll jump in anyway.
Think about the way they talked/wrote back then. This could just be an anachronism of how they wrote lists. Omitting the “or” before “who belong” doesn’t mean that the “foreigners” and “aliens” belong to the “families of ambassadors or foreign ministers” and would in fact sound off if it did. It should then instead read: “include persons born in the United States who are foreigners [or] aliens, who belong to the families of ambassadors or foreign ministers.”
But of course “foreigners” and “aliens” are distinct categories (or it would have been redundant and repetitive). It seems that foreigners are invited foreign guests of the country (say, on a tourist visa) who intend to return home and remain subject to their State (e.g. by paying taxes to it); aliens are uninvited foreign visitors who may be presumed to retain allegiance to their original State and may intend to return (perhaps more than once).
If you could classify an immigrant as a third category—that is, one who has arrived “legally” with the intention to become a “subject” of the US State, but not one yet due to the naturalization process—you might square this all with the language referring to “every other class of persons” who are by construction not “foreigners,” “aliens,” “the families of ambassadors or foreign ministers,” or even foreign aliens who “belong to the families of ambassadors or foreign ministers.”
Anyway, looking at the length of this I know I’ve forgotten to add some supporting arguments. And I’ve destroyed the order and cohesion of my original argument. Oh well.
Who cares about the constitution? Ayn Rand was right. The constitution is riddled with flaws that means that different people can read different things into it.
ReplyDeleteQuick question - if a small libertarian nation of one million people exists, and five million foreigners move there, what happens to the libertarian nation?
Depends was the move in by foreigners voluntary or by force?
DeleteA business owner invited them. Others didn't want them but too bad, hey?
DeleteCitizenship is just another word that means "owned by the government". We need to get away from the idea of citizenship toward one of tenancy. The Earth is about 4.5 billion years old. The tenancy turnover is completed about every 100 years. As such, all of us have a VERY short tenancy on the Earth.
ReplyDeleteWhat is tenancy? It is a contractual arrangement between a landowner and one who resides, by agreement with the owner, on a parcel of the land, or some subsection (an apartment for example) of a parcel. And who might the landowner be for a territory (muncipality, county, state or province, nation)? That would be the living, as described so brilliantly by Jefferson in a letter to Madison. http://www.cantonmovement.com/the-form-a-canton-based-municipal-government-could-take/
Good read, I think most Libertarians would agree with such a set up. If I remember correctly fellow TL and EPJ commentator Bob Roddis has argued this as well.
DeleteRon Paul :
ReplyDelete"Congress has within its power the authority to clarify the 14th Amendment’s definition of citizenship by making it clear that it does not grant citizenship by birthright. [ ... ] There is no reason Congress cannot provide further clarification of what the 14 Amendment means when it refers to “subject to the jurisdiction” of the United States."
-- Felix