As Americans and our elected leaders engage in debate over immigration and the constitutional guarantee of citizenship at birth, there is something we should all be able to agree on: misleading statements about constitutional history do not help us understand the Constitution better or allow us to tackle immigration reform in good faith.
It was thus disheartening to see Rep. Lamar Smith, new chairman of the House Judiciary Committee, seriously mislead the public in a letter to the editor printed in the Los Angeles Times. Writing about the Constitution's guarantee of citizenship at birth for all children born on U.S. soil and "subject to the jurisdiction" of the United States, Rep. Smith asserted: "during the debate on the 14th Amendment in 1866, a senator who helped draft the amendment said it would 'not of course include persons born in the United States who are foreigners.'" However, this was an incomplete quote. Had Rep. Smith included the entire quote -- or better yet, included the entire quote and helped explain its significance -- it would not have supported his reading of the 14th Amendment. Perhaps that is why he cut the quote off where he did.
Such distortions of history are unhelpful at best. Here is the full quote from the 1866 Congressional Globe, which is attributed to Sen. Jacob Howard, principal draftsman of the Citizenship Clause of the 14th Amendment:
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.
The reason why this is important is because anti-citizenship advocates seize upon the phrase "subject to the jurisdiction thereof" in the 14th Amendment's guarantee that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." They argue that illegally present immigrants are not "subject to the jurisdiction" of the United States. The incomplete portion of the quote used by Rep. Smith in his L.A. Times letter appears to support the view that the Citizenship Clause was drafted to exclude children of "foreigners" who are not subject to U.S. jurisdiction.
But the full sentence shows otherwise. Sen. Howard's description of the only class of children born on U.S. soil who would not be U.S. citizens automatically at birth was merely a summary of the widely accepted understanding that children of foreign diplomats would not be birthright citizens. This is because of the legal fiction that diplomats, while physically present here, are sort of floating along in a little bubble of their home country -- hence the concept of diplomatic immunity. Sen. Howard used the terms "foreigners" and "aliens" in the sentence quoted above to describe those "who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States." If Howard were intending to list several categories of excluded persons (e.g., foreigners, aliens or families of diplomats) he could have said so. Instead, the language he used strongly suggests he was describing a single excluded class, limited to families of diplomats.
Indeed, the history of the Constitution's Citizenship Clause shows that citizenship at birth for children of "foreigners" was expressly contemplated. For example, Sen. Edgar Cowan expressed concern that the citizenship proposal would expand the number Chinese in California and Gypsies in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit "trespass" within the United States. Supporters of the Citizenship Clause did not take issue with Cowan's understanding of the effect of the Clause, but instead defended it as a matter of sound policy. Sen. John Conness of California declared: "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..."
In contrast to the current debate over the meaning of the Citizenship Clause, the legislative debates occurring at the time Congress approved the Clause demonstrate that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil.
And since 1898, the U.S. Supreme Court has also agreed. In United States v. Wong Kim Ark, the Court held that a U.S.-born child of Chinese immigrants was entitled to citizenship, explaining that the "14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory... including all children here born of resident aliens." In 1982, the Court explained in Plyler v. Doe that the 14th Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of illegal aliens. Similarly, in the 1985 case INS v. Rios-Pineda, the Court stated that a child born on U.S. soil to an undocumented immigrant was a U.S. citizen from birth.
Complete quotes and adequate explanations do not always fit the word limit for letters to the editor or make for good TV soundbites. But it is the duty of our elected officials to be straight with the American people, especially when discussing the meaning of our Constitution. Looking at the facts -- the text and history of the 14th Amendment's Citizenship Clause and more than a century of Court precedent -- I think it is unquestionable that the Constitution guarantees citizenship at birth to children born on U.S. soil (with the exception of children born to diplomats), including children born to parents who are undocumented immigrants. Rep. Smith and other anti-citizenship activists are certainly entitled to disagree -- but they aren't entitled to create their own version of history.
Howard Foster: Time to End Birthright Citizenship?
Senator Edward Cowan, stated: "A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..."
Also: In Elk versus Wilkins (1884) the Supreme Court considered:
The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the fourteenth amendment of the constitution.
The Court concluded that Indi¬ans were not citizens under the Fourteenth Amendment. While recog¬nizing that Indians were born in the United States in a geographi¬cal sense, they were not citizens just as children born within the United States of ambassadors or other public ministers of foreign nations were not citizens. The Court declared that citizenship must be directly bestowed upon the Indians by the United States. In other words, Indians were legal aliens in their own land.
In 1887 Congress passed the Dawes Act which allowed Indians to become citizens if they had abandoned their tribes and adopted the habits of civilized life. It was generally assumed that "civilized life" meant that they could speak English, had become Christian, and were actively engaged in farming.
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If the parents are deported, they take the child with them.
Although it is far more likely only one parent is deported, ICE raids work places, not apartment houses.
You are welcome to disagree with this and work for an amendment to change it. But legal wrangling won't change that fact.
I also don't care where anybody comes from, illegal, undocumented, border unobservent, whatever, they go back, no exceptions, no credit for time here, nothing. Do not pass go, do not collect $200. It looks like the country can support more people than are here legally, let's fast track people that are on the list as we get rid of illegals. Let's set up a NICS check system for Social Security numbers, one phone call verifies ID info.
maybe america needs purification and that all requirements to being a US citizen would be based on the color of his skin..why not do that, and let's see a complete transformation of the USA.and maybe just maybe they will be able to see why america became the greatest nation......to a nation of __________(fill in the blank.
“It settles the great question of the 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 in this country.â€
In 1866, those recognized under "national law†as citizens of the United States were persons naturalized and the children of citizens born abroad (Naturalization Act) and “persons born in the United States and not subject to any foreign power†(Civil Rights Act).
But if Howard really intended the Clause to remove “all doubt as to what persons are or are not citizens,†why did he NOT include the words “or naturalized†in the Clause that the Senate approved on the same day he presented it on May 30, 1866? (Inserted a week later June 8, 1866)
And why did Howard NOT provide for the status of children of citizens born abroad?
Analyzing why Howard enclosed the phrase “and subject to the jurisdiction thereof†between a pair of commas and why Sen. Doolittle--directly quoting “the language which he [the author] usesâ€--read the phrase as “all persons subject to the jurisdiction of the United States†(either at birth or after birth) might provide the key, for the phrase may well be the SECOND of the COMPOUND subject of the Clause, structured as an ELLIPTICAL (repeated noun phrase "all persons" omitted) for the complete construction Doolittle quoted.
It's going to happen (hopefully soon) and trying to use your pulpit to sway people, as many have been doing for years now, won't help your open borders, big business cause on this one. The SC has to look at the law, the intent and precedence - which hopefully will end this practice we are doing as the LAST nation on earth to do so with good reasons - it's too bad that so many people are profiting so much on this massive inflow of cheap labor that it has been hard.
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They have. The main cases being: Wong Kim Ark, Perkins v. Elg, Plyler v. Doe and Afroym v. Rusk.
My bet is that for any case seeking to redefine the basic concept of jurisdiction, the lower appeals court will uphold historical interpretations and that SCOTUS won't even grant cert on the issue.
We had that once.
They were called "slaves."
14th amendment might be in order. How ever this country doesn't pass laws that apply retroactively
so that will not solve the problem of the roughly 14-20 million already here.
They come here for JOBS, not to have children.
They come for jobs.
Is that your argument? if so, then you failed.
What was said is that say for instance a Mexican national, here illegally, commits a crime in this country or one from earlier in his life in Mexico. The Mexican consulate can ask to have that person remanded back to Mexico.
Also think about this: Can an illegal be drafted by our armed services if we had the draft? The answer is no. Can they vote? No Can they contribute and later draw on SS? No
They are NOT under our jurisdiction any more then I am under Mexico's when I am in their country. Which is to say I am obliged to follow their rules but they have no authority over me.
If the cluase only means diplomants and their children, then why didn't it only state that?
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I'm not opposed to the amendment as it is currently enforced however even I have to admit that you are tortouring the English language in order to twist it to support your side. While you are arguing against incomplete quotes, you may also want to write a section on how claiming that something doesn't say what it says still doesn't change the actual meaning.
It does apply to ALL persons* born in this country.
The child of an ilegal alien who is born in the U.S. is not illegal, since there is no law that makes it illegal to be born here. Furthermore, any person born in this country is, by simple definition, not an alien. an alien is someone who was born outside this country.
*The only exceptions to this rule are for those diplomats and their families residing or visiting this country who have been granted diplomatic immunity from our jurisdiction, as per treaty.