Yes it is my position that I have undertaken considerable effort to support.
OTOH, you have yet to explain the second part of the Citizenship Clause - how the "subject to the jurisdiction" is defined to support your position.
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NEWS FLASH!! 50 NAT. SEC. GOPERS SAY TRUMP WILL PUT NATION AT RISK - UNFIT TO BE POTUS
- Thread starter dherd
- Start date
Yes it is my position that I have undertaken considerable effort to support.
OTOH, you have yet to explain the second part of the Citizenship Clause - how the "subject to the jurisdiction" is defined to support your position.
1. THE PARENTS WERE NOT "LEGAL & PERMANENT RESIDENTS OF THE U.S."
THEY WERE "SUBJECTS OF THE EMPORER OF CHINA" THEY IN FACT
LEFT THE U.S. TO PERMANENTLY RESIDE IN CHINA.
2. YOU MISSTATED THE QUESTION.
THE QUESTION WAS:
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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."
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China; and during all the time of their residence in the United States they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him 653*653 therefrom. In 1890 (when he must have been about seventeen years of age) he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States, upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit and with the intention of returning to the United States; and he did return thereto by sea in August, 1895, and applied to the collector of customs for permission to land; and was denied such permission, upon the sole ground that he was not a citizen of the United States.
It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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."
THEY WERE "SUBJECTS OF THE EMPORER OF CHINA" THEY IN FACT
LEFT THE U.S. TO PERMANENTLY RESIDE IN CHINA.
2. YOU MISSTATED THE QUESTION.
THE QUESTION WAS:
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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."
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China; and during all the time of their residence in the United States they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him 653*653 therefrom. In 1890 (when he must have been about seventeen years of age) he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was permitted by the collector of customs to enter the United States, upon the sole ground that he was a native-born citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little under that age does not appear) again departed for China on a temporary visit and with the intention of returning to the United States; and he did return thereto by sea in August, 1895, and applied to the collector of customs for permission to land; and was denied such permission, upon the sole ground that he was not a citizen of the United States.
It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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."
Now you are calling me a liar.
Do you understand the difference between a legal resident and citizen? Those are DIFFERENT legal statuses that carry different rights, privileges, etc.
For example, a legal resident (non-citizen) could not be tried for treason in the US because only US citizens can be tried for treason.
Ark's Chinese parents (why do you think I have referred to them as Chinese in various posts? it was to indicate that the parents were still considered CITIZENS of China - duh) were legal RESIDENTS of the US - meaning that they were allowed to come into the US and work (they were part of the Chinese labor movement migration into the US in the latter part of the 1800s). They were NOT citizens. Read this carefully: Ark's parents were legal residents but not citizens; Ark's parents were legal residents but not citizens; Ark's parents were legal residents but no citizens.
Thus, the Court analyzed whether a US-born child of legal immigrant residents (but non-citizens) was conferred citizenship upon birth. They answered yes.
The Ark decision DOES NOT answer the question of whether a US-born child of illegal immigrants receives citizenship upon birth. As a result, the dissertation in between about the "exception" is dictum and non-binding and not precedent.
For heaven's sakes, a foreign-born child of US citizens that lives abroad has to go through a naturalization process before his/her citizenship is even recognized, but you and your ilk want to confer birthright citizenship on US-born children of people that have chosen to violate US law and are technically trespassers in the US? What type of logic does that make - to make a legit citizen (the foreign-born child of US citizen(s)) jump through hoops to establish citizenship and making a birth that follows the illegal entry into the US automatic with little to no hoops?
Logic defies these goofy assertions.
Ha ha!! You're not going to accept anything I might say. I would be doing nothing other than echoing the thoughts and opinions of the majority of those most knowledgeable of the constitution. As of this moment, and for a rather long time, children born to illegal immigrants on U S soil have been given citizenship at birth.
i did not call you a liar - i said you misstated the question - which you did.
citizen or non citizen legal or illegal the supreme court layed out four
exceptions and only four to a child born within the borders of the
united states having u.s. citizenship - again they are
1. children of foreign sovereigns or their ministers
2. born on foreign public ships,
3. of enemies within and during a hostile occupation of part of our territory,
4. with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
THERE ARE NO OTHER EXCEPTIONS PERIOD. THE STATEMENT WITH THE
SINGLE ADDITIONAL EXCEPTION OF - LEAVES NO WRIGGLE ROOM.
i agree, children should not be awarded citizenship simply because they are born
withing the borders. only children of u.s. citizens should be awarded citizenship by
birthright.
your argument is with the supreme court not with me. if you are so sure of your
position you should find a case and argue you point. if you win you'll be a big
hero and i will be the very first to congratulate you.
but contrary to your argument the fourteenth amendment does award citizenship
to a child born within our borders. IT HAPPENS EVERY DAY SEVERAL THOUSAND
TIMES A DAY!
citizen or non citizen legal or illegal the supreme court layed out four
exceptions and only four to a child born within the borders of the
united states having u.s. citizenship - again they are
1. children of foreign sovereigns or their ministers
2. born on foreign public ships,
3. of enemies within and during a hostile occupation of part of our territory,
4. with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
THERE ARE NO OTHER EXCEPTIONS PERIOD. THE STATEMENT WITH THE
SINGLE ADDITIONAL EXCEPTION OF - LEAVES NO WRIGGLE ROOM.
i agree, children should not be awarded citizenship simply because they are born
withing the borders. only children of u.s. citizens should be awarded citizenship by
birthright.
your argument is with the supreme court not with me. if you are so sure of your
position you should find a case and argue you point. if you win you'll be a big
hero and i will be the very first to congratulate you.
but contrary to your argument the fourteenth amendment does award citizenship
to a child born within our borders. IT HAPPENS EVERY DAY SEVERAL THOUSAND
TIMES A DAY!
Dear God. How hard is it to understand the courts never ruled/ gave an opinion on children born to people living here ILLEGALLY?
Damnation, how can you possibly believe that I misstated the question? Here is the question as quoted from the case:
"The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution, '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.'"
In what convoluted, tortured, and verbally-abused universe is the quoted question above substantively different than what I have stated? I said:
the issue in the Ark case was whether a US-born child of Chinese parents, the parents having had permanent domicile and residence in the US, became a US citizen upon his birth.
To break this into pieces (my statement followed by the Court's in parens):
* the issue in the Ark case was whether a US-born child of Chinese parents (whether a child born in the United States, of parents of Chinese descent,)
* the parents having had permanent domicile and residence in the US (are subjects of the Emperor of China, but have a permanent domicil and residence in the United States,)
* became a US citizen upon his birth (becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,)
Aside from omitting the surplus language of "[the parents] are subjects of the Emperor of China" (which is captured by my use of "Chinese parents") and omitting reference to the Citizenship Clause of the 14th Amendment -- my phrasing of the question is virtually identical to the Court's -- only a fool would say otherwise.
Notice how the Court (quoting the case -- look above) presented the question: in the presented question, the Court didn't talk about Indian tribes because the parents are Chinese nationals and the child is Chinese by race and therefore not Indian, so it omitted that language -- unnecessary to the analysis, reasoning, and holding. The Court does include the diplomatic exception in the presented question as means of determining the path of analysis -- because if the parents are (a) diplomats of a foreign nation, then the analysis LOOKS at the diplomatic exception; if the parents (b) are NOT diplomats, then the Court ignores the diplomatic exception and then must determine what the status of the parents is and then follow that path. Since the record was clear and undisputed, the Court dispensed with the diplomatic exception element of the analysis, because Ark's parents were Chinese nationals (and not diplomats) that were provided legal residence immigrant status by the US government.
So - not Indians and not diplomats. The Court admitted as fact that the parents were legal residents of the US. Admitted that fact. There is no dispute that they were legal residents but still citizens of China. It is right in the opinion. Thus, the question (circling back to that) is:
is a US-born child of Chinese parents that are legal residents (but not citizens) in the US attain citizenship upon birth? YES.
Whether the Chinese (or any other foreign national) parents were illegal residents was NOT the factual question and was not addressed by this Court or its opinion.
The US Supreme Court only decides actual cases and controversies - it does not provided advisory opinions. Since the question of a birthright citizenship of a US-born child of illegal residents was not raised in this (or any other subsequent) case, the question is unanswered. Because no cases (as part of the cases and controversies that must exist for a party to have standing to sue and for the courts to have jurisdiction) have raised this question, and since the Court does not supply advisory opinions on hypothetical cases, this question remains unanswered.
You are making this harder than it should be.
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i dont think i am.
i was addressing your statement that the 14th amendment does not
provide citizenship for a child born from illegal immigrants. i get that.
i say it does. i say that although the question was not answered directly
the court said that ALL CHILDREN BORN IN THE U.S. ARE U.S. CITIZENS.
the court then enumerated four instances in which that general rule does not
apply. we agree on those four.
i say that since the circumstances of the case do not fit within one of those
four exceptions the child is a u.s. citizen.
you say BUT, the question of the child of an illegal immigrant has not been
tested. i agree.
but the fact that it has not been tested does not prove your point. the fact
that it has not been tested merely means that the courts prior interpretations
are the law. those prior interpretations say the child is a u.s. citizen.
to make your position that the 14th amendment DOES NOT say the child has
citizenship you have to present a case and test your argument before the supreme court IF you can get that far with it. so far no one has. that is why those babies are awarded citizenship.
i was addressing your statement that the 14th amendment does not
provide citizenship for a child born from illegal immigrants. i get that.
i say it does. i say that although the question was not answered directly
the court said that ALL CHILDREN BORN IN THE U.S. ARE U.S. CITIZENS.
the court then enumerated four instances in which that general rule does not
apply. we agree on those four.
i say that since the circumstances of the case do not fit within one of those
four exceptions the child is a u.s. citizen.
you say BUT, the question of the child of an illegal immigrant has not been
tested. i agree.
but the fact that it has not been tested does not prove your point. the fact
that it has not been tested merely means that the courts prior interpretations
are the law. those prior interpretations say the child is a u.s. citizen.
to make your position that the 14th amendment DOES NOT say the child has
citizenship you have to present a case and test your argument before the supreme court IF you can get that far with it. so far no one has. that is why those babies are awarded citizenship.
Uhhhhh....that's why they are illegal. Because they don't fit into the exceptions that were described.
(no way you are a real CPA)
It is clear that you do not understand how to read, interpret, and use a legal opinion.
The US Supreme Court accepts appeals based on a specific question or specific questions. It is unusual that the questions go beyond three or four. And it is unusual for the Court to answer more than one question if any single question will resolve the case or controversy that it has accepted jurisdiction for.
When an appeals court (whether intermediate or terminal) makes a determination to affirm, reverse, or affirm-in-part or reverse-in-part, the holding (determination) and the reasoning for the holding are precedent. All other non-holding discussion, analysis, reasoning, etc. is non-binding and not precedent.
Accordingly, if you submitted a brief or advance a position at oral argument based on non-binding and/or non-precedential language, not only will the court administer a smack down (either at argument or in its written opinion), and not only will it make you look foolish and ill-prepared, if you have placed all or most of your eggs on non-binding language, you are likely staring at a malpractice claim.
In the Ark case, the Court granted the writ of certiorari on a SINGLE question, and the BINDING language from the opinion concerns the question of a US-born child having legal resident (but foreign citizenship) parents. Any other question that someone can conceive that is outside what the Court said was the question is dictum - non-binding, and reliance on non-binding dictum is beyond misplaced.
To your all-caps point: the Court DID NOT decide that all children born in the US are US citizens. Instead, the Court explicitly stated that its decision (holding) was that Ark, a US-born child of legal resident immigrants with Chinese citizenship, was a citizen upon birth under the 14th Amendment. Because Ark's parents were legal residents the Court had NO BASIS for determining whether illegal residents or immigrants could pass on birthright citizenship to US-born children of such illegals. To read otherwise is illiterate. Literally.
==============================================================
above is what i addressed. you used a lot of words to skirt the issue. anchor babies
children born to illegal aliens or whatever name you want to put on them are u.s. citizens.it is way way out there to argue otherwise. you are making scalia and thomas look rational.
NO there has never been a direct decision in the supreme court - because no one
has ever brought a case. why? because if you tried you would never get it past
the appeals courts in fact you probably could not even get an appeals court to hear
your argument, because the court has been clear on the subject. and to call a
supreme court ruling a policy and not law demonstrates how extreme your position is
and how far you will go to avoid admitting that the statement you made above is wrong.
it is not only wrong it is obviously and indisputably wrong.
i keep going back to the courts ruling that i have pointed to several times which
makes it clear to any reasonable person that children born
in this country are u.s. citizens EXCEPT for the four exceptions the court
delineated i will list them again since you want to avoid them. they are
1. children of foreign sovereigns or their ministers
2. born on foreign public ships,
3. of enemies within and during a hostile occupation of part of our territory,
4. with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
the wording of the final exception cuts off all other situations when it says
WITH THE SINGLE ADDITIONAL EXCEPTION.
that wording closes off all other situations. it does not say with the exception
of children of illegal aliens if the court had intended to rule that
children of illegal aliens are not citizens it would have said so -
as it did in the four exceptions it thoughtfully and carefully carved out - IT DID NOT.
and no it did not address the issue specifically, no more than it addressed one thousand other situations that could be argued. any other situation will have to be argued independently i have never said otherwise. BUT THE FACT THAT NO ONE
IN ABOUT 130 YEARS HAS BEEN ABLE TO MAKE THE ARGUMENT YOU
PRESENT WOULD SPEAK CONCLUSIVELY TO A REASONABLE AND RATIONAL
PERSON. a right wing wack job out of the federalist society would be an exception
to rational and reasonable. it appears that is where you are coming from.
and again the supreme court decides law - supreme court decisions are not
policy decisions - they are law, and you know that very well.
i think the LAW and my position have been made clearly enough that anyone
who wanted to understand does understand. on the other hand i realize
that you might try to save face after making an obviously specious statement.
that statement being the one i quoted you in bold print to start this post.
once again - find a case and take it to court. see how far you get with it.
put your reasoning to the test. far better lawyers than you have considered
your point of view and decided it would be pointless to advance your argument.
but, you go ahead and do it. if you win you will be both famous and rich overnight.
that is a bargain any lawyer would take - NONE HAVE.
i've wasted enough time with this - that is all i have to say about it.
GOOD LUCK IN COURT.- I WILL BE LOOKING FOR YOUR CASE IN THE NEWS.
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Dtard you completely ignore the first part of the decision where they are discussing parents being here legally. The ark parents are here legally. So your four exceptions applies to legal aliens except in those cases.
I'm in no way a lawyer but it's not hard to see that.
I also agree that no court will touch the anchor baby argument
I'm in no way a lawyer but it's not hard to see that.
I also agree that no court will touch the anchor baby argument
You need to read this -- How to Write a Case Brief -- it should help you understand why everything you have posted over the last several days is wrong.
Your complaint about my "lot of words" is hollow given the rabbit holes you have been digging. I wrote no more than necessary to respond and support my position and debunk your position, something that seems lost on some posters. I attempted to explain to you why your inexperience with legal opinions and legal proceedings renders what you have asserted unsupportable regarding the current question.
This current post is running away from what you have posted recently because in response to my question wanting citation to support for your position, you have posted several dissertations on irrelevant elements from the Ark decision and the Ark decision only. Now you have moved the goalpost to what you said above - and that too is wrong - for the reasons already stated about the Ark decision: appeals court decisions (esp. SCOTUS decisions) are responses to narrow questions and fact-specific questions of the case. Ark answered the question of whether a US-born child of legal resident non-citizens is a US citizen at birth (yes); it did not answer the question of whether the same child born to illegal residents has birthright citizenship and it certainly did not a question that was not asked -- that really broad question of whether ALL children born in the US are birthright citizens regardless of parental status. Never been answered.
The reality that elements of our government have refused to enforce immigration laws and procedures, and have adopted the policy of non-deportation and treating birthright citizenship as automatic is a far-cry from it being in law. As I have repeated multiple times in two threads, no one (and thus far everyone that has tried has failed) can point to binding precedent interpreting the 14th Amendment in answering this question when illegal immigrant parent(s) is/are involved, no one can point to a codified law that Congress has enacted, etc.
So, bemoan the time you have wasted as your own fault. At this point, not understanding what a legal opinion states as the rule of the case and as binding precedent is not without my effort in trying to explain this in multiple ways.
Finally, your goofy assertion that I should somehow spearhead a case and get this into court to get an answer to the question -- further reveals your lack of understanding. I have no standing to sue or petition because I have not been personally harmed by the policy in a way that creates standing. My status as a taxpayer does not grant me stating; and since I'm not a legal immigrant harmed by illegal immigrants, nor knowingly bypassed for a job and given to an illegal immigrant, my ability to go assert a claim has not materialized.
SMH.
Here's the bottom line. Until someone argues and convinces the court that "subject to the jurisdiction thereof" means something other than born on U S soil, children of illegal immigrants born in the US are citizens of the U S, and your statement that "Legally, American-born children of illegal immigrants are not citizens and stating or implying that American-born children of illegals are citizens is not law and is not accurate" is in fact wrong.
And there it is. The cabinet maker knows more than the lawyer re: legal decisions and what they mean
Cite the law.
You can't - which is why you haven't.
Policy is not equivalent to law. Policy can be (and does) change at the regulatory level without congressional involvement. Law can be changed only by Congress (or depending on how a federal court rules).
Try again.
I don't need to try again. The Constitution does it for me and it is the supreme law of the land. You're argument that parts of the Constitution are not law, but just policy until tested is ridiculous.
ok olen deny this. it is from "the federalist" a right wing magazine.
it says a lot that you are so far over the edge that even right wingers
think you've gone over the wall. be a man - admit you are wrong.
the link http://thefederalist.com/2015/08/25...original-understanding-of-the-14th-amendment/
the author - james ho - who is james ho?
James C. Ho is a partner in the Dallas office of Gibson, Dunn & Crutcher, and co-chair of the firm's Appellate and Constitutional Law practice group. He has over a decade of government experience, most recently as Solicitor General of Texas and as Chief Counsel to U.S. Senator John Cornyn.
hardly a liberal.
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.
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.
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.
Writing for the majority, Justice Brennan explicitly rejected the contention that “persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction.’” In reaching this conclusion, Brennan invoked the Citizenship Clause and the Court’s analysis in Wong Kim Ark, noting that
“[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” … [N]o plausible distinction with respect to Fourteenth Amendment ‘ jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”[39]
The Court continues to abide by this understanding to this day. In INS v. Rios-Pineda (1985), Justice White noted for a unanimous Court that “respondent wife [an illegal alien] had given birth to a child, who, born in the United States, was a citizen of this country.”[41] And in Hamdi v. Rumsfeld (2004), the plurality opinion noted that alleged Taliban fighter Yaser Hamdi was “born in Louisiana” and thus “is an American citizen,” despite objections by various amici that, at the time of his birth, his parents were aliens in the U.S. on temporary work visas.[42]
WHAT NOW OLEN??????????????????????
YOU ARE CORNERED. WITH NO WAY OUT.
IN THE FUTURE REMEMBER - IF DHERD SAYS IT - YOU CAN TAKE IT TO THE BANK.
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Until someone argues and convinces the court that "subject to the jurisdiction thereof" means something other than born on U S soil, children of illegal immigrants born in the US are citizens of the U S and you have no argument.
Despite his republican affiliation, his work for John Cornyn, and his clerkship for J. Thomas, Mr. Ho’s immigration position is not conservative. It is very establishment republican. As such, non-conservative approaches regardless of source (republican or democrat) hold little persuasion for me. So, lest you be surprised, I not only disagree with Ho’s assessment, I have a fairly robust rebuttal with source support where appropriate. And remember: you asked for this.
Prolog
Ho asserts that the “subject to the jurisdiction of the United States” requirement of the 14th Amendment is to be interpreted as merely being physically present and subject to governmental and judicial jurisdiction of a government, and alleges that this interpretation is supported by (I) the text, (II) history, (III) judicial precedent, and (IV) executive branch interpretation. Because Ho addresses these more-or-less sequentially in his article, I will attempt to the do the same, but note that he intermingles (I) and (II) to the point that talking about them together makes more sense than apart. So, I will approach this in discussing the appropriate understanding according to: (I) text and legislative history; (II) judicial precedent; and (III) executive branch interpretation (although (III) is mostly irrelevant as non-binding policy).
*****
Introduction
Mr. Ho is Taiwanese by birth. This means that his parent or parents were allegiant to Taiwan and he was born in Taiwan, and therefore a Taiwanese citizen at birth. This also means that Mr. Ho was naturalized to become a U.S citizen. Why is this relevant?
It is rather ironic that Mr. Ho (or more likely, his parents) to complete the naturalization requirements had to legally immigrate into the U.S., and among other things, establish a legal residence or domicile, attest to their identities, and most importantly, pledge an oath or allegiance to the U.S. and renounce their allegiance to Taiwan. Yet, Mr. Ho alleges that “allegiance” plays no part in the immigration and naturalization laws of the U.S., including the 14th Amendment and its requirement that a person be “subject to the jurisdiction of the United States.” This interpretation is establishment republican and crony capitalism at its core.
Even the by-line of the article is misleading and off-point: “Stay tuned: Dred Scott II could be coming soon to a federal court near you.” Dred Scott concerned maintaining African slaves (forcibly taken from Africa and brought to the U.S.) as non-citizens; not extending citizenship to children of illegal entrants (that are illegally within the country by their own accord) is far from analogous and are truly animals of different stripes. But invoking Dred Scott pushes all the right emotional and historical buttons.
Regardless, Mr. Ho’s article is an internally inconsistent reading of the 14th Amendment and cherry-picks favorable language from the constitutional debate and omits the common understanding of not only the 14th Amendment, but companion amendments, and contemporaneous statutes enacted in the post-construction era. Accordingly, Mr. Ho’s analysis suffers from several defects. To wit:
(I) – Interpreting the 14th Amendment: Text and History
(A) Text – Plain Meaning and Ambiguity
In interpreting a statute, a court looks at the plain meaning giving all words meaning or effect so that no words are superfluous (e.g., redundant or meaningless). The 14th Amendment’s Citizenship Clause states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
As everyone (including Ho) recognizes, there are two requirements for Citizenship: (a) either being born in the U.S. or being naturalized in the U.S.; and (b) being subject to the jurisdiction [thereof] of the U.S. Take note that (a) and (b) are conjunctive requirements by the use of “and” (as opposed to disjunctive, which is denoted by the use of “or”). Conjunctive requirements mean that all elements must be met; in this case, both (a) and (b) must be met to establish citizenship.
The plain meaning of (a) is evident, as there is no ambiguity as to where a birth occurs of whether the naturalization process has been completed. The plain meaning of (b) is not evident as the current debate on this issue suggests (and proponents of the competing thoughts admit, including Ho), with at least two interpretations of “subject to the jurisdiction” of the U.S. advanced: (i) Ho et al.’s assertion that it means to merely being physically present within and subject to judgments and orders of U.S. courts; or alternatively (ii) all of (i) plus having allegiance to the U.S. and no other sovereign – complete jurisdiction. Because the plain meaning of (b) is not evident, and therefore ambiguous, then we must resort to critical analysis to determine its ordinary meaning as understood at the time of adoption.
Advocates of Ho et al.’s position, where mere physical presence defines “subject to the jurisdiction” of the U.S., ignore a fundamental fact: “All persons born” in the U.S. are already within and subject to the judgments and orders of U.S. courts. Being born is to be physically present in the U.S. And without question, courts have the ability to remove a minor child from a dangerous home, thus, a minor child (even at the moment of birth) is within the governmental and judicial jurisdiction of the U.S. Accordingly, under this interpretation, the second acknowledged requirement (“subject to the jurisdiction thereof [U.S.]”) of the Citizenship Clause becomes redundant, unnecessary, and superfluous – meaning this interpretation causes that element to not actually be a requirement. That does not square with Ho et al.’s admission that “subject to the jurisdiction” is a positive requirement for citizenship, and violates at least one significant cannon of statutory construction. Thus, this position is rooted in illogic.
Another odd and internally inconsistent argument that Ho advances in relation to a “textual” basis for interpreting “subject to the jurisdiction” of the U.S. to mean “mere physical presence” is his reference to the “exceptions”: diplomatic immunity and enemy combatants. Ho reasons that because diplomats and enemy combatants are immune from (e.g., not required to obey) U.S. law, then that provides a textual basis for interpreting “subject to the jurisdiction” of the U.S. under his view.
This is wholly illogical. A textual basis for interpreting that phrase should rely on the text; the “exceptions” were not part of the text of the 14th Amendment. Worse yet, the 14th Amendment was drafted, debated, voted, and enacted with knowledge and understanding of the exceptions, which colors the requirement of “subject to the jurisdiction” of the U.S. contrary to Ho’s assertion.
To explain the obvious, the reason why diplomats (and their families) and enemy combatants were excepted is because each group owes its allegiance to another sovereign. These two groups were not “subject to the jurisdiction” of the U.S. precisely because their allegiance was to another sovereign. And as Ho admits, so were/are the children of each of these two groups that are born in the U.S., and therefore not citizens even if born in the U.S. How Ho or anyone can ignore this rather obvious point and yet interpret “subject to the jurisdiction” of the U.S. as something less than allegiance when the exceptions are rooted on foreign allegiances is remarkable if not completely tone-deaf.
If “subject to the jurisdiction” of the U.S. is the second part of a two-part requirement, and “all persons born” in the U.S. are automatically within and subject to the jurisdiction of the U.S. (which they are), then the clause “subject to the jurisdiction” of the U.S. must mean something additional to actually be the second-part of a two-part requirement and must mean something additional so that the phrase is not superfluous language. What do we look to for guidance?
(cont'd)
(B) Because of Ambiguity, Look to Legislative History – kinda
(1) Current Understanding – Misplaced Reliance
The best place to start is the contemporaneous records associated with the amendment – what Ho labels “history”. Oddly, Ho reverses the appropriate sequence, and starts with present history (which is not the legislative history of the 14th Am. of 1868 in any sense). By way of explanation and rebuttal, we’ll start the analysis with Ho’s odd starting point – the present.
Ho alleges to start with current understanding, but is little more than his re-statement of the “subject to the jurisdiction” argument based on mere physical presence in the U.S. But that argument has already been addressed and dispensed (above in (A)). For effect, Ho alleges that Justice Scalia authored an opinion that defined “subject to the jurisdiction of the United States” in harmony with Ho’s opinion. This argument is infirmed for several reasons.
First, Ho’s statement is misleading, esp. to lay-persons, because most authors invoke the name of a justice and a corresponding opinion to state the rule of a case and its basis as binding precedent. Ho makes no attempt to qualify his statement in the article, therefore leading the reader to believe that Justice Scalia has authored a majority opinion that settles the question of what “subject to the jurisdiction” of the U.S. means.
However, if one bothers to read the actual case, one learns that Justice Scalia’s opinion was the lead dissenting opinion, meaning his vote and opinion on the matter was in the minority and is not binding whatsoever. Elsewhere, Ho plainly dismisses a statement from a case as dicta; yet, as part of his lead argument on “understanding” the phrase, esp. its common current understanding, he cites the dissenting (non-binding) opinion of Justice Scalia. One can only conclude this was done to color the perception that even a conservative justice concurs with Ho et al.’s argument. Except that J. Scalia’s dissent did not such thing.
Second, even accepting Justice Scalia’s dissenting opinion as “persuasive” on the subject, the context of that discussion that Ho references for support actually undermines Ho’s argument.
The footnoted case was a civil suit regarding an alleged violation by a foreign-flag ship (National Cruise Line) of Title III of the American’s with Disabilities Act (ADA), a relatively recent (1990) addition to the U.S. code relative to the 14th Amendment (1868). J. Scalia writes that he would have held that since Congress did not make an express intention in the statute for Title III of the ADA to apply to the internal order of a foreign-flag ship even while in U.S. ports of territorial waters, then Title III would not apply to NCL and the plaintiff’s claims would be dismissed.
More importantly, for our discussion, in his dissenting opinion, by reference to these statutes, J. Scalia draws the contrast between Title III (not having an express intent to extend U.S. law to foreign-ships) and other statutes that provide such express intent. However, those statutes make reference to “vessels” that are subject to the jurisdiction of the U.S., not people or persons. Vessels cannot and do not possess citizenship. Vessels are property. The analogy fails and the reference is irrelevant.
Lastly, J. Scalia’s references to these statutes reinforce a contemporary understanding of the meaning of “subject to the jurisdiction” of the U.S. in reference to vessels. Conversely, the constitution has not been further amended, and there are no judicial precedents or acts of Congress clarifying the amendment on this issue, therefore, resort to contemporary understanding of a phrase that stands unchanged from its insertion in 1868 and untested (if including Ark from 1898) for about 120 years or more and is improper textual analysis of the amendment, and provides no insight into the ordinary meaning of the phrase as understood at the time of adoption.
(1) Current Understanding – Misplaced Reliance
The best place to start is the contemporaneous records associated with the amendment – what Ho labels “history”. Oddly, Ho reverses the appropriate sequence, and starts with present history (which is not the legislative history of the 14th Am. of 1868 in any sense). By way of explanation and rebuttal, we’ll start the analysis with Ho’s odd starting point – the present.
Ho alleges to start with current understanding, but is little more than his re-statement of the “subject to the jurisdiction” argument based on mere physical presence in the U.S. But that argument has already been addressed and dispensed (above in (A)). For effect, Ho alleges that Justice Scalia authored an opinion that defined “subject to the jurisdiction of the United States” in harmony with Ho’s opinion. This argument is infirmed for several reasons.
First, Ho’s statement is misleading, esp. to lay-persons, because most authors invoke the name of a justice and a corresponding opinion to state the rule of a case and its basis as binding precedent. Ho makes no attempt to qualify his statement in the article, therefore leading the reader to believe that Justice Scalia has authored a majority opinion that settles the question of what “subject to the jurisdiction” of the U.S. means.
However, if one bothers to read the actual case, one learns that Justice Scalia’s opinion was the lead dissenting opinion, meaning his vote and opinion on the matter was in the minority and is not binding whatsoever. Elsewhere, Ho plainly dismisses a statement from a case as dicta; yet, as part of his lead argument on “understanding” the phrase, esp. its common current understanding, he cites the dissenting (non-binding) opinion of Justice Scalia. One can only conclude this was done to color the perception that even a conservative justice concurs with Ho et al.’s argument. Except that J. Scalia’s dissent did not such thing.
Second, even accepting Justice Scalia’s dissenting opinion as “persuasive” on the subject, the context of that discussion that Ho references for support actually undermines Ho’s argument.
The footnoted case was a civil suit regarding an alleged violation by a foreign-flag ship (National Cruise Line) of Title III of the American’s with Disabilities Act (ADA), a relatively recent (1990) addition to the U.S. code relative to the 14th Amendment (1868). J. Scalia writes that he would have held that since Congress did not make an express intention in the statute for Title III of the ADA to apply to the internal order of a foreign-flag ship even while in U.S. ports of territorial waters, then Title III would not apply to NCL and the plaintiff’s claims would be dismissed.
More importantly, for our discussion, in his dissenting opinion, by reference to these statutes, J. Scalia draws the contrast between Title III (not having an express intent to extend U.S. law to foreign-ships) and other statutes that provide such express intent. However, those statutes make reference to “vessels” that are subject to the jurisdiction of the U.S., not people or persons. Vessels cannot and do not possess citizenship. Vessels are property. The analogy fails and the reference is irrelevant.
Lastly, J. Scalia’s references to these statutes reinforce a contemporary understanding of the meaning of “subject to the jurisdiction” of the U.S. in reference to vessels. Conversely, the constitution has not been further amended, and there are no judicial precedents or acts of Congress clarifying the amendment on this issue, therefore, resort to contemporary understanding of a phrase that stands unchanged from its insertion in 1868 and untested (if including Ark from 1898) for about 120 years or more and is improper textual analysis of the amendment, and provides no insight into the ordinary meaning of the phrase as understood at the time of adoption.
(2) Ordinary Meaning – At the Time of Adoption
Moving on to the then-contemporaneous record – the legislative history of the 14th Amendment (and contemporaneous acts). Even when Ho invokes the legislative history, he omits, ignores, or side-steps several relevant and important bits of information. Omitting the drafters and key debaters is particularly noticeable.
For example, in the body of the article where footnotes 18-20 appear, Ho makes note that the first draft of the amendment did not include a citizenship clause, that the citizenship clause was inserted six days later by Sen. Howard, and was approved without further discussion after a single day of debate regarding birthright citizenship. This brief treatment of the amendment debate omits several important details that color the understanding of the metes and bounds of the amendment.
One significant omission is in the failure to ask: why did Sen. Howard insert the citizenship clause at all after it was initially omitted from the first draft? After the first draft, Ohio Sen. Benjamin Wade sought to amend Section 1 by removing “citizen” and substituting language that barred states from abridging “the privileges or immunities of persons born in the United States or naturalized by the laws thereof.” (Cong. Globe, 39th Cong., 1st Sess. 2764 (1866) (presented in joint resolution H.R. no. 127)). Sen. Wade’s proposal would have implied and then provided basis for complete birthright citizenship to anyone born in the U.S. regardless of status of the parents – the very interpretation advanced by Ho and others at present. That language and that understanding were not included and did not prevail over Congress during the amendment process.
Moreover, Ho’s hand-waving dismissal of Sen. Trumbull’s statements misses important historical context. Sen. Trumbull was chairman of the judiciary committee, the committee responsible for conducting hearings and crafting legislation regarding immigration laws (among other subject matter). More particularly, Sen. Trumbull was the sponsor of the 1866 Civil Rights Act, the forerunner to the 13th, 14th, and 15th Amendments, as well as the Naturalization Act of 1870. And Sen. Trumbull co-authored the 13th Am. abolishing slavery and the 1866 Act.
Notably, Ho completely omits Rep. Bingham from his analysis, despite Bingham raising birthright citizenship issues years before the debates on the post-construction civil rights legislation and amendments, and then later-serving as co-author of Section 1 of the 14th Am. Views that formed and influenced the views of Trumbull and other supporters of these acts.
Despite Ho’s omissions, the linkages between the 1866 Act and the 14th Am. are inextricable, using parallel language in places, and with common congressmen drafting and debating the same laws, thus it would be intellectually dishonest to ignore this linkage and commonality regarding the understanding of “subject to the jurisdiction” of the U.S. Reading these congressional acts apart ignores the (attempted) consistency by which Congress tried to right several moral wrongs in the post-construction U.S.
For example, in 1857 during debates concerning the Oregon Territory’s admission to the Union, Rep. Bingham stated:
Who are the citizens of the United States? Sir, they are those, and those only, who owe allegiance to the Government of the United States; not the base allegiance imposed upon the Saxon by the Conqueror, which required him to mediate in solitude and darkness at the sound of the curfew; but the allegiance which requires the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country. All free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth. (Cong. Globe, 35th Cong., 2nd Sess. 983 (1859)).
When debating emancipation (of the slaves) a couple of years later, Bingham stated:
[A]ll other persons born within the Republic, of parent owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement touching natural-born citizens except what is said in the Constitution in relation to Indians. [ ] They [Indians] were treated with as such [independent sovereignties]; and they have been dealt with by the Government ever since as separate sovereignties [and excluded from the general rule]. (Cong. Globe, 37th Cong., 2nd Sess. 1639 (1862)).
And yes, Howard’s alterations to the 14th Am. concerned the status of the Indian. In response to concerns raised by Sens. Cowan, Doolittle, and William Fessenden, however, Trumbull stated and defined the understanding of the phrase “subject to the jurisdiction of the United States” applicable to all, saying:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does [Sen. Doolittle] pretend to say that the Navajoe [sic] Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. (Cong. Globe, 39th Cong., 1st Sess. 2890-93).
Therefore, two of the leading voices of the 1866 Act and the 14th Am., Congressmen Bingham and Trumbull, (contrary to Ho’s gloss) viewed birthright citizenship as conditioned at the very least upon legal domicile or residency and allegiance to the U.S. (and not another sovereign). This common understanding found its way into the 1866 Act first, and then followed by the 14th Amendment. Meaning that those that voted in support understood the meaning of the phrase “subject to the jurisdiction” of the U.S. as encompassing allegiance to the U.S. and not another foreign power. This is driven home by the fact that The 1866 Act uses this language:
An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States[.]
Notice the two-part requirement in the 1866 Act: (a) born in the U.S., and (b) not subject to any foreign power. Compare this language to the very similar language of the 14th Am., which states element (b) inversely (and positively) to the 1866 Act but with the same effect, since “not subject to any foreign power” is to be no longer allegiant to a foreign power and is to be “subject to the jurisdiction of the United States.” The inescapable logic is that the 14th Am., drafted and ratified to not only overrule Dred Scott but also preserve, by constitutional amendment from changes by the States (esp. southern), the citizenship of freed slaves embodied in the 1866 Act (and subject to overturning only by a subsequent constitutional amendment or judicial opinion), conditions that are clear that citizenship includes at least a requirement for allegiance to the U.S.
Lastly, the Naturalization Act of 1870 criminalized the falsification of identity and documents or information in documents by one seeking such naturalization, and if convicted, may result in incarceration and/or fine, and of course denial of citizenship. If the 1870 Act criminalized falsification of important documents and/or personal identity, then how could the very act of trespass into the U.S. not be similarly criminalized and a subsequent bar to both citizenship and birthright citizenship? Logic compels consistency, yet Ho and others allege otherwise.
Moving on to the then-contemporaneous record – the legislative history of the 14th Amendment (and contemporaneous acts). Even when Ho invokes the legislative history, he omits, ignores, or side-steps several relevant and important bits of information. Omitting the drafters and key debaters is particularly noticeable.
For example, in the body of the article where footnotes 18-20 appear, Ho makes note that the first draft of the amendment did not include a citizenship clause, that the citizenship clause was inserted six days later by Sen. Howard, and was approved without further discussion after a single day of debate regarding birthright citizenship. This brief treatment of the amendment debate omits several important details that color the understanding of the metes and bounds of the amendment.
One significant omission is in the failure to ask: why did Sen. Howard insert the citizenship clause at all after it was initially omitted from the first draft? After the first draft, Ohio Sen. Benjamin Wade sought to amend Section 1 by removing “citizen” and substituting language that barred states from abridging “the privileges or immunities of persons born in the United States or naturalized by the laws thereof.” (Cong. Globe, 39th Cong., 1st Sess. 2764 (1866) (presented in joint resolution H.R. no. 127)). Sen. Wade’s proposal would have implied and then provided basis for complete birthright citizenship to anyone born in the U.S. regardless of status of the parents – the very interpretation advanced by Ho and others at present. That language and that understanding were not included and did not prevail over Congress during the amendment process.
Moreover, Ho’s hand-waving dismissal of Sen. Trumbull’s statements misses important historical context. Sen. Trumbull was chairman of the judiciary committee, the committee responsible for conducting hearings and crafting legislation regarding immigration laws (among other subject matter). More particularly, Sen. Trumbull was the sponsor of the 1866 Civil Rights Act, the forerunner to the 13th, 14th, and 15th Amendments, as well as the Naturalization Act of 1870. And Sen. Trumbull co-authored the 13th Am. abolishing slavery and the 1866 Act.
Notably, Ho completely omits Rep. Bingham from his analysis, despite Bingham raising birthright citizenship issues years before the debates on the post-construction civil rights legislation and amendments, and then later-serving as co-author of Section 1 of the 14th Am. Views that formed and influenced the views of Trumbull and other supporters of these acts.
Despite Ho’s omissions, the linkages between the 1866 Act and the 14th Am. are inextricable, using parallel language in places, and with common congressmen drafting and debating the same laws, thus it would be intellectually dishonest to ignore this linkage and commonality regarding the understanding of “subject to the jurisdiction” of the U.S. Reading these congressional acts apart ignores the (attempted) consistency by which Congress tried to right several moral wrongs in the post-construction U.S.
For example, in 1857 during debates concerning the Oregon Territory’s admission to the Union, Rep. Bingham stated:
Who are the citizens of the United States? Sir, they are those, and those only, who owe allegiance to the Government of the United States; not the base allegiance imposed upon the Saxon by the Conqueror, which required him to mediate in solitude and darkness at the sound of the curfew; but the allegiance which requires the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country. All free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth. (Cong. Globe, 35th Cong., 2nd Sess. 983 (1859)).
When debating emancipation (of the slaves) a couple of years later, Bingham stated:
[A]ll other persons born within the Republic, of parent owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement touching natural-born citizens except what is said in the Constitution in relation to Indians. [ ] They [Indians] were treated with as such [independent sovereignties]; and they have been dealt with by the Government ever since as separate sovereignties [and excluded from the general rule]. (Cong. Globe, 37th Cong., 2nd Sess. 1639 (1862)).
And yes, Howard’s alterations to the 14th Am. concerned the status of the Indian. In response to concerns raised by Sens. Cowan, Doolittle, and William Fessenden, however, Trumbull stated and defined the understanding of the phrase “subject to the jurisdiction of the United States” applicable to all, saying:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does [Sen. Doolittle] pretend to say that the Navajoe [sic] Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. (Cong. Globe, 39th Cong., 1st Sess. 2890-93).
Therefore, two of the leading voices of the 1866 Act and the 14th Am., Congressmen Bingham and Trumbull, (contrary to Ho’s gloss) viewed birthright citizenship as conditioned at the very least upon legal domicile or residency and allegiance to the U.S. (and not another sovereign). This common understanding found its way into the 1866 Act first, and then followed by the 14th Amendment. Meaning that those that voted in support understood the meaning of the phrase “subject to the jurisdiction” of the U.S. as encompassing allegiance to the U.S. and not another foreign power. This is driven home by the fact that The 1866 Act uses this language:
An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States[.]
Notice the two-part requirement in the 1866 Act: (a) born in the U.S., and (b) not subject to any foreign power. Compare this language to the very similar language of the 14th Am., which states element (b) inversely (and positively) to the 1866 Act but with the same effect, since “not subject to any foreign power” is to be no longer allegiant to a foreign power and is to be “subject to the jurisdiction of the United States.” The inescapable logic is that the 14th Am., drafted and ratified to not only overrule Dred Scott but also preserve, by constitutional amendment from changes by the States (esp. southern), the citizenship of freed slaves embodied in the 1866 Act (and subject to overturning only by a subsequent constitutional amendment or judicial opinion), conditions that are clear that citizenship includes at least a requirement for allegiance to the U.S.
Lastly, the Naturalization Act of 1870 criminalized the falsification of identity and documents or information in documents by one seeking such naturalization, and if convicted, may result in incarceration and/or fine, and of course denial of citizenship. If the 1870 Act criminalized falsification of important documents and/or personal identity, then how could the very act of trespass into the U.S. not be similarly criminalized and a subsequent bar to both citizenship and birthright citizenship? Logic compels consistency, yet Ho and others allege otherwise.
(C) Other Sources Defining “Subject to the Jurisdiction” as Incorporating Allegiance
What other evidence is there that citizenship is conditioned upon allegiance as defining “subject to the jurisdiction” of the U.S.?
Since the inception of the Union, the act of naturalization has included the requirement that the individual seeking naturalization pledge allegiance or an oath that the individual is the actual person seeking naturalization, and all records and documents required to support naturalization (including legal residency or domicile) are true and accurate, as well as pledging an oath or allegiance to the U.S. and to renounce citizenship or subjugation to the laws of another sovereign (link for current version of oath/pledge - https://www.uscis.gov/us-citizenshi...ization-oath-allegiance-united-states-america). It would render these congressional acts internally incoherent (and would read like the scribblings of a lunatic), to require that those that have legally entered and seek naturalization to swear an oath to the U.S. and renounce allegiance to a foreign power, and yet require nothing in parallel of illegal immigrants and their offspring. This internal inconsistence works the mischief of rewarding a person or family of law-breakers that is (under Ho’s argument) only presumed allegiant to a “new” sovereign despite not having enough respect for that sovereign so as to honor its immigration laws and seek lawful entry therein.
Let’s consider another logical issue. A citizen of Florida is legally domiciled within the state borders, and owes no allegiance to another state (otherwise, allegiance to the other state makes said person a citizen of THAT state). Yet a citizen of Florida is subject to the jurisdiction of the laws and courts of the State of Georgia if s/he travels into or through, conducts business with the government or citizens of the state, or commits a crime against the government, subordinates, or citizens of that state in the same way that Ho et al. suggest. Long-arm statutes are built around these concepts and allow a sovereign to assert criminal, civil, or even regulatory jurisdiction over a non-citizen. Yet exercise of this type of jurisdiction does not convert the non-citizen into a citizen.
A recent criminal case further buttresses the notion that legal domicile is a significant part of determining citizenship. At the state level, the First Circuit recently stated that “under generally accepted principles, citizenship is determined by domicile, which can be established by demonstrating that the individual is physically present in the state and has an intent to remain indefinitely. Hall v. Curran, No. 09-1354, (March 24, 2010, 1st Cir.). The federal laws are materially similar. Thus, it would be logically inconsistent to suggest that a person or persons having no legal domicile (and thus failing a basic tenet for citizenship) are not citizens but the child born of these person or persons is a citizen while also not having a legal domicile.
What other evidence is there that citizenship is conditioned upon allegiance as defining “subject to the jurisdiction” of the U.S.?
Since the inception of the Union, the act of naturalization has included the requirement that the individual seeking naturalization pledge allegiance or an oath that the individual is the actual person seeking naturalization, and all records and documents required to support naturalization (including legal residency or domicile) are true and accurate, as well as pledging an oath or allegiance to the U.S. and to renounce citizenship or subjugation to the laws of another sovereign (link for current version of oath/pledge - https://www.uscis.gov/us-citizenshi...ization-oath-allegiance-united-states-america). It would render these congressional acts internally incoherent (and would read like the scribblings of a lunatic), to require that those that have legally entered and seek naturalization to swear an oath to the U.S. and renounce allegiance to a foreign power, and yet require nothing in parallel of illegal immigrants and their offspring. This internal inconsistence works the mischief of rewarding a person or family of law-breakers that is (under Ho’s argument) only presumed allegiant to a “new” sovereign despite not having enough respect for that sovereign so as to honor its immigration laws and seek lawful entry therein.
Let’s consider another logical issue. A citizen of Florida is legally domiciled within the state borders, and owes no allegiance to another state (otherwise, allegiance to the other state makes said person a citizen of THAT state). Yet a citizen of Florida is subject to the jurisdiction of the laws and courts of the State of Georgia if s/he travels into or through, conducts business with the government or citizens of the state, or commits a crime against the government, subordinates, or citizens of that state in the same way that Ho et al. suggest. Long-arm statutes are built around these concepts and allow a sovereign to assert criminal, civil, or even regulatory jurisdiction over a non-citizen. Yet exercise of this type of jurisdiction does not convert the non-citizen into a citizen.
A recent criminal case further buttresses the notion that legal domicile is a significant part of determining citizenship. At the state level, the First Circuit recently stated that “under generally accepted principles, citizenship is determined by domicile, which can be established by demonstrating that the individual is physically present in the state and has an intent to remain indefinitely. Hall v. Curran, No. 09-1354, (March 24, 2010, 1st Cir.). The federal laws are materially similar. Thus, it would be logically inconsistent to suggest that a person or persons having no legal domicile (and thus failing a basic tenet for citizenship) are not citizens but the child born of these person or persons is a citizen while also not having a legal domicile.
(II) Judicial Precedent – Ark Not Applicable to Illegals; Plyler Distinguished
Ho makes a rather remarkable mistake in relying upon the Ark decision. Although Ho alleges that Ark “reaches all aliens regardless of immigration status[ ]”, Ho inexplicably contradicts himself in the following sentence: “To be sure, the question of illegal aliens was not explicitly presented in [ ] Ark.”
Those two sentences, standing back-to-back, are so incoherent as to be irreconcilable. How can the Ark decision reach “all aliens regardless of immigration status” but not answer the question of illegal aliens”? Clearly, one of these statements is wrong; and it the former, as the latter correctly states that Ark resolved nothing concerning children born to illegal residents.
Ho tries to salvage this gaff by alleging that Plyler v. Doe put “any doubt” to rest. However, Plyler (like all SCOTUS decisions) was decided on narrow grounds and does not have the sweep of language that Ho alleges.
Plyler examined the Section 1 clauses that followed the Citizenship Clause in the 14th Am. These three clauses are:
(i) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
(ii) nor shall any State deprive any person of life, liberty, or property, without due process of law;
(iii) nor deny to any person within its jurisdiction the equal protection of the laws.
Please note that citizenship is not a requirement of (ii) or (iii), but is a requirement of (i). Thus, under the 14th Amendment, only a citizen is protected against abridgment of the privilege and immunities afforded citizens, and thus, only a citizen is protected under (i) though (iii). A non-citizen is protected against deprivation of due process or denial of equal protection (ii) and (iii). This demonstrates the understanding of being “within the jurisdiction” of a government while not being “subject to the jurisdiction” of the government.
An illegal can be “within the jurisdiction” of the U.S. and receive the protection of due process and/or equal protection, but is not a citizen, and thus not capable of exercising the privileges and immunities of U.S. citizenship. Thus, the Plyler Court determined that undocumented children (which means the children were not even born here but were brought here) could not be denied education because of equal protection of state law providing free public education – consistent with the language of (iii) of the 14th Am. as indexed above, and consistent with the understanding of being “within the jurisdiction” but not being “subject to the jurisdiction” of the U.S. Beyond that, Plyler made not statements affirming the assertion that US-born children of illegals are citizens, since that was unnecessary to reach the conclusion that these undocumented children were protected by equal protection even as non-citizens.
Additionally, Ho’s quotation of J. Brennan’s reasoning from Plyler is dicta. As just noted above, every person within the U.S. – read: his/her mere physical presence in the U.S. – has equal protection under the law. But equal protection under the less is something less than all the rights, privileges, and immunities afforded citizens. And having equal protection of the law as a non-citizen does not convert said person to a citizen, and does not establish the criteria for “subject to the jurisdiction” of the U.S. J. Brennan’s words actually reinforce the notion that “within the jurisdiction” and “subject to the jurisdiction” are in fact different and distinct legal concepts, the dictum of the opinion notwithstanding.
Reliance on Rios-Pineda (1985) and Hamdi (2004) are similarly and equally misplaced. J. White’s “note” in the Rios-Pineda opinion was not the holding of the case (and not necessary to decide the case). Dicta. The reference to Hamdi is from the plurality opinion – a plurality opinion is from a group of justices but not a majority. A plurality opinion is non-binding. A 4-4 split in the current SCOTUS is two plurality opinions of four justices each, which means the immediate lower court’s previous decision stands and is affirmed.
Obviously, Ho admitted that Ark is not binding precedent, and then followed with a string of non-sequitur citations that are even more inapplicable than Ark. Therefore, the “judicial precedent” prong of Ho’s argument is non-existent. As fairly clear at this point, no court has confronted much less addressed the issue of how to define “subject to the jurisdiction” of the U.S.
Ho makes a rather remarkable mistake in relying upon the Ark decision. Although Ho alleges that Ark “reaches all aliens regardless of immigration status[ ]”, Ho inexplicably contradicts himself in the following sentence: “To be sure, the question of illegal aliens was not explicitly presented in [ ] Ark.”
Those two sentences, standing back-to-back, are so incoherent as to be irreconcilable. How can the Ark decision reach “all aliens regardless of immigration status” but not answer the question of illegal aliens”? Clearly, one of these statements is wrong; and it the former, as the latter correctly states that Ark resolved nothing concerning children born to illegal residents.
Ho tries to salvage this gaff by alleging that Plyler v. Doe put “any doubt” to rest. However, Plyler (like all SCOTUS decisions) was decided on narrow grounds and does not have the sweep of language that Ho alleges.
Plyler examined the Section 1 clauses that followed the Citizenship Clause in the 14th Am. These three clauses are:
(i) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
(ii) nor shall any State deprive any person of life, liberty, or property, without due process of law;
(iii) nor deny to any person within its jurisdiction the equal protection of the laws.
Please note that citizenship is not a requirement of (ii) or (iii), but is a requirement of (i). Thus, under the 14th Amendment, only a citizen is protected against abridgment of the privilege and immunities afforded citizens, and thus, only a citizen is protected under (i) though (iii). A non-citizen is protected against deprivation of due process or denial of equal protection (ii) and (iii). This demonstrates the understanding of being “within the jurisdiction” of a government while not being “subject to the jurisdiction” of the government.
An illegal can be “within the jurisdiction” of the U.S. and receive the protection of due process and/or equal protection, but is not a citizen, and thus not capable of exercising the privileges and immunities of U.S. citizenship. Thus, the Plyler Court determined that undocumented children (which means the children were not even born here but were brought here) could not be denied education because of equal protection of state law providing free public education – consistent with the language of (iii) of the 14th Am. as indexed above, and consistent with the understanding of being “within the jurisdiction” but not being “subject to the jurisdiction” of the U.S. Beyond that, Plyler made not statements affirming the assertion that US-born children of illegals are citizens, since that was unnecessary to reach the conclusion that these undocumented children were protected by equal protection even as non-citizens.
Additionally, Ho’s quotation of J. Brennan’s reasoning from Plyler is dicta. As just noted above, every person within the U.S. – read: his/her mere physical presence in the U.S. – has equal protection under the law. But equal protection under the less is something less than all the rights, privileges, and immunities afforded citizens. And having equal protection of the law as a non-citizen does not convert said person to a citizen, and does not establish the criteria for “subject to the jurisdiction” of the U.S. J. Brennan’s words actually reinforce the notion that “within the jurisdiction” and “subject to the jurisdiction” are in fact different and distinct legal concepts, the dictum of the opinion notwithstanding.
Reliance on Rios-Pineda (1985) and Hamdi (2004) are similarly and equally misplaced. J. White’s “note” in the Rios-Pineda opinion was not the holding of the case (and not necessary to decide the case). Dicta. The reference to Hamdi is from the plurality opinion – a plurality opinion is from a group of justices but not a majority. A plurality opinion is non-binding. A 4-4 split in the current SCOTUS is two plurality opinions of four justices each, which means the immediate lower court’s previous decision stands and is affirmed.
Obviously, Ho admitted that Ark is not binding precedent, and then followed with a string of non-sequitur citations that are even more inapplicable than Ark. Therefore, the “judicial precedent” prong of Ho’s argument is non-existent. As fairly clear at this point, no court has confronted much less addressed the issue of how to define “subject to the jurisdiction” of the U.S.
(III) Executive Branch Interpretation
Ho makes little effort to elaborate on how executive branch interpretation of “US-born children of illegals = citizens” is even persuasive on the issue. The executive branch interpretation is based solely on an assumption. At this point, these children are presumed citizens because Congress has not acted to clarify the amendment and the immigration laws. The meaning of “subject to the jurisdiction of the United States” remains an untested and unanswered question. Although the better and more logical understanding is the one having connection to sovereign allegiance, this vacuum has left the executive to essentially confiscate from Congress the responsibility of defining law and thus subjugating these terms to whatever policy or whim they chose without any check or balance.
Finally, executive branch interpretation is the weakest argument that could be advanced as evidence in support of the “mere physical presence” definition of “subject to the jurisdiction” of the U.S. Under the separation of powers doctrine, explicitly set forth in the Constitution, the executive enforces the law; it does not define or enact law, roles reserved for the judicial branch and the legislative branches. Such arrogation of responsibility violates the separation of powers clause.
*****
Ho makes little effort to elaborate on how executive branch interpretation of “US-born children of illegals = citizens” is even persuasive on the issue. The executive branch interpretation is based solely on an assumption. At this point, these children are presumed citizens because Congress has not acted to clarify the amendment and the immigration laws. The meaning of “subject to the jurisdiction of the United States” remains an untested and unanswered question. Although the better and more logical understanding is the one having connection to sovereign allegiance, this vacuum has left the executive to essentially confiscate from Congress the responsibility of defining law and thus subjugating these terms to whatever policy or whim they chose without any check or balance.
Finally, executive branch interpretation is the weakest argument that could be advanced as evidence in support of the “mere physical presence” definition of “subject to the jurisdiction” of the U.S. Under the separation of powers doctrine, explicitly set forth in the Constitution, the executive enforces the law; it does not define or enact law, roles reserved for the judicial branch and the legislative branches. Such arrogation of responsibility violates the separation of powers clause.
*****
(IV) Conclusion
No one questions or begrudges the legal acumen, talent, success, and skill of Mr. Ho. However, that does not immunize him or his opinions from critical analysis and appropriate or legitimate criticism. Ho has several close friends that publicly disagree with his position on this issue. I’ve worked with similarly talent attorneys and yet they too have been wrong about things or held or advanced illogical positions, or with whom I’ve had friendly disagreements about a point or points of law. Nevertheless, like several areas of conventional wisdom, this one is built upon a lack of clarification from Congress, misunderstanding judicial precedent, and executive branch assumptions and actions that have remained unchecked.
To clear on what is fact and what is opinion at this point:
· fact: the Ark decision answers only the question regarding US-born children of illegal residents in determining whether the Chinese Exclusion Act was consistent with the 14th Amendment’s citizenship clause (Ho admits this – agreeing with what I have been saying across two different threads over several months)
· fact: no other Supreme Court has taken up the issue of birthright citizenship of US-born children of illegal residents – it untested and unresolved, esp. the interpretation of the phrase “subject to the jurisdiction of the United States” (Ho’s article reveals this when one gets into the weeds of the references cited in support)
· fact: the executive presumes that birthright citizenship extends to US-born children of illegal residents (in the vacuum of non-clarity from Congress and the two factual points immediately above)
· fact: legal opinions are split on the proper interpretation of the phrase “subject to the jurisdiction of the United States”
· opinion: the argument that “subject to the jurisdiction of the United States” means merely that one has to have a physical presence in the U.S. to be “subject to” causes the plain meaning of the clause to be (i) redundant, since all persons born in the U.S. are already subject to the jurisdiction of the courts of the U.S., (ii) incoherent and inconsistent with the naturalization process that demands allegiance to the U.S. and renouncement of the former sovereign the person was formerly subject to, and (iii) works the mischief of penalizing those that choose to lawfully subject themselves to the naturalization process and rewarding those that choose to unlawfully trespass into the U.S.
· opinion: the argument that “subject to the jurisdiction of the United States” means owing an allegiance to the U.S. that includes abiding by the immigration laws of the nation one chooses to enter, finds support in the legislative history of the amendment process and the contemporaneous acts debated, drafted, and ratified in the post-construction U.S.
Your turn.
** all citations to “Cong. Globe” may be inspected here - http://memory.loc.gov/ammem/amlaw/lwcg.html
** unless otherwise indicated by a live link, all other sources referenced are common to the Ho article and may be accessed according to his footnotes
** Patrick Charles academic article on the 14th Amendment was an invaluable source for tracking down the original source material for the amendment comments and debates
No one questions or begrudges the legal acumen, talent, success, and skill of Mr. Ho. However, that does not immunize him or his opinions from critical analysis and appropriate or legitimate criticism. Ho has several close friends that publicly disagree with his position on this issue. I’ve worked with similarly talent attorneys and yet they too have been wrong about things or held or advanced illogical positions, or with whom I’ve had friendly disagreements about a point or points of law. Nevertheless, like several areas of conventional wisdom, this one is built upon a lack of clarification from Congress, misunderstanding judicial precedent, and executive branch assumptions and actions that have remained unchecked.
To clear on what is fact and what is opinion at this point:
· fact: the Ark decision answers only the question regarding US-born children of illegal residents in determining whether the Chinese Exclusion Act was consistent with the 14th Amendment’s citizenship clause (Ho admits this – agreeing with what I have been saying across two different threads over several months)
· fact: no other Supreme Court has taken up the issue of birthright citizenship of US-born children of illegal residents – it untested and unresolved, esp. the interpretation of the phrase “subject to the jurisdiction of the United States” (Ho’s article reveals this when one gets into the weeds of the references cited in support)
· fact: the executive presumes that birthright citizenship extends to US-born children of illegal residents (in the vacuum of non-clarity from Congress and the two factual points immediately above)
· fact: legal opinions are split on the proper interpretation of the phrase “subject to the jurisdiction of the United States”
· opinion: the argument that “subject to the jurisdiction of the United States” means merely that one has to have a physical presence in the U.S. to be “subject to” causes the plain meaning of the clause to be (i) redundant, since all persons born in the U.S. are already subject to the jurisdiction of the courts of the U.S., (ii) incoherent and inconsistent with the naturalization process that demands allegiance to the U.S. and renouncement of the former sovereign the person was formerly subject to, and (iii) works the mischief of penalizing those that choose to lawfully subject themselves to the naturalization process and rewarding those that choose to unlawfully trespass into the U.S.
· opinion: the argument that “subject to the jurisdiction of the United States” means owing an allegiance to the U.S. that includes abiding by the immigration laws of the nation one chooses to enter, finds support in the legislative history of the amendment process and the contemporaneous acts debated, drafted, and ratified in the post-construction U.S.
Your turn.
** all citations to “Cong. Globe” may be inspected here - http://memory.loc.gov/ammem/amlaw/lwcg.html
** unless otherwise indicated by a live link, all other sources referenced are common to the Ho article and may be accessed according to his footnotes
** Patrick Charles academic article on the 14th Amendment was an invaluable source for tracking down the original source material for the amendment comments and debates
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Oh, and you've gone so far over dherd's head that any response by him would be pointless. In doing so you have also pointed out the major weakness demonstrated by him and extra on a consistent basis, your post came from your intelligence, study, and ability to assemble and present meaningful resource information. They copy, paste or link opinions formulated by others, lacking the necessary skill and intelligence to formulate complex thoughts on their own.
So I take it you agree with olen that children born in the U S to illegal aliens are not United States citizens.
Based on a full reading of what he presented, I believe he put forth a compelling case that it was not the intent of the 14th Admendment. With that said, I believe that it is not clear whether they are or not. It was particularly interesting to read the section that gave color around the men who crafted the language and how their views, as supported by other legislation with which they were involved, would give the strong basis for the belief that an affirmative action is required to be under the jurisdiction of the United States (as opposed to under the law).
It was a very interesting read and I would love to see how Ho would craft his counter argument. Personally, I wish someone could get it in front of the Supreme Court so the specific question could be resolved.
It was a very interesting read and I would love to see how Ho would craft his counter argument. Personally, I wish someone could get it in front of the Supreme Court so the specific question could be resolved.
Summary: olen's post,which came from "intelligence, study, and ability to assemble and present meaningful resource information" (unlike dherd and extra) resulted in your conclusion that "it is not clear whether they are or not".
Furthermore, your reply to my statement "So I take it you agree with olen that children born in the U S to illegal aliens are not United States citizens", evidently does not take into account that children born to illegal immigrants are, in fact, given U S citizenship even now. Weird how you couldn't know, or would argue they are not.
Furthermore, your reply to my statement "So I take it you agree with olen that children born in the U S to illegal aliens are not United States citizens", evidently does not take into account that children born to illegal immigrants are, in fact, given U S citizenship even now. Weird how you couldn't know, or would argue they are not.
Demonstrates Greed's inability to fully comprehend the overall discussion of "policy" vs. "law". How many fvcking times has Olen referred to the current "policy" as well as to an "executive order" that could change it?
Xgreed is just rambling incoherence at this point.
True, RHF. I haven't said that I think they are or not, and neither did Olen in his argument. The whole point all along is that it is an area that the SCOTUS has never taken up and ruled on. Extra can't understand that the trick is that the democrats do not want a ruling on this and would rather leave it the way it is, accepted through policy. I would like a legally binding ruling from the SCOTUS.
See, that's where you just don't get it. Olen presented an argument as to why they aren't, a very compelling one at that. There are also smart attorneys that can equally argue that they are. This is why we have the Supreme Court to make final legal rulings on issues of Constitutionality of issues. I tend to agree with Olen's argument in the case, but that doesn't mean the Court would agree. You don't agree with Olen, but I'm assuming you didn't read all of it, but that doesn't mean the Court would disagree with him.
They are US citizens now, as you correctly state, but that is because the current policy is to grant them that status, not based on a binding finding by the SCOTUS. So, as has been said over and over in this thread, the issue is open to interpretation from a Constitutional standpoint.
THE OLD RAZZLE DAZZLE.
folks - you have just been given the old razzle dazzle.
when i read olen's quote the thing that came to mind was
the scene in the play/movie chicago.
this is what i mean.
before olen asked eg to cite a case where it says that children of
illegal aliens are citizens and he challenged eg that he could not
because none exist. he also made a statement that babies born
from illegal alliens are given citizenship via a "policy decision made
at a regulatory level" that could be changed.
pg 2 of this thread: Olen
"Legally, American-born children of illegal immigrants are not citizens and stating or implying that American-born children of illegals are citizens is not law and is not accurate, and makes statement 4 misleading at best."
"The treatment of so-called anchor babies (the non-deportation of parent(s) and anchor baby(ies)) is a policy decision that has been made at the regulatory level and that can change."
in all that long post you never once cited anything that disputed the
central point of my post which i will repeat. contrary to your claim
children born in the u.s. ARE CITIZENS and the reason they are
given citizenship is by supreme court edict and not by some "policy
decision made at the regulatory level".
i have the supreme court to back up what i said including a unanimous
supreme court ruling.
here they are again.
Plyler
“persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction.’”
“[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” … [N]o plausible distinction with respect to Fourteenth Amendment ‘ jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”[39]
In INS v. Rios-Pineda (1985), Justice White for a unanimous Court that “respondent wife [an illegal alien] had given birth to a child, who, born in the United States, was a citizen of this country.”
so, to sum it all up i have given you direct on point quotes from the supreme court.
meanwhile all you have given me is the OLD RAZZLE DAZZLE!
that's enough for me - i realize you are trying to save face after
making a wildly incorrect statement. i think you are probably a
good guy even though you are way out there in your politics.
i have proven my point. you go ahead and post whatever razzle
dazzle you want to post next and i will let you have the last word,
because i realize you cannot afford to concede that there is no
law to back up what you said. only your opinion.
folks - you have just been given the old razzle dazzle.
when i read olen's quote the thing that came to mind was
the scene in the play/movie chicago.
this is what i mean.
before olen asked eg to cite a case where it says that children of
illegal aliens are citizens and he challenged eg that he could not
because none exist. he also made a statement that babies born
from illegal alliens are given citizenship via a "policy decision made
at a regulatory level" that could be changed.
pg 2 of this thread: Olen
"Legally, American-born children of illegal immigrants are not citizens and stating or implying that American-born children of illegals are citizens is not law and is not accurate, and makes statement 4 misleading at best."
"The treatment of so-called anchor babies (the non-deportation of parent(s) and anchor baby(ies)) is a policy decision that has been made at the regulatory level and that can change."
in all that long post you never once cited anything that disputed the
central point of my post which i will repeat. contrary to your claim
children born in the u.s. ARE CITIZENS and the reason they are
given citizenship is by supreme court edict and not by some "policy
decision made at the regulatory level".
i have the supreme court to back up what i said including a unanimous
supreme court ruling.
here they are again.
Plyler
“persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction.’”
“[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” … [N]o plausible distinction with respect to Fourteenth Amendment ‘ jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”[39]
In INS v. Rios-Pineda (1985), Justice White for a unanimous Court that “respondent wife [an illegal alien] had given birth to a child, who, born in the United States, was a citizen of this country.”
so, to sum it all up i have given you direct on point quotes from the supreme court.
meanwhile all you have given me is the OLD RAZZLE DAZZLE!
that's enough for me - i realize you are trying to save face after
making a wildly incorrect statement. i think you are probably a
good guy even though you are way out there in your politics.
i have proven my point. you go ahead and post whatever razzle
dazzle you want to post next and i will let you have the last word,
because i realize you cannot afford to concede that there is no
law to back up what you said. only your opinion.
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