Anchor Baby Amendment to Constitution?

[Matt Collins]

Perhaps we should consider amending the 14th Amendment to the Constitution to read:
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 with the exception of those born in the United States to illegal aliens.

There are allegedly hundreds if not thousands of "anchor babies" born in the US by illegals each month. The children are legally entitled to citizenship as the 14th Amendment currently stands. If we change that amendment, then perhaps there would be less anchor babies born in the US because there would be no incentive to trespass in to the US illegally to bear a child.

Thoughts? Comments? Criticisms?

[1000-points-of-fright]

That's something I thought about a while ago. However, one may say that you can interpret the 14th Amendment as already saying that since I don't think there was such a thing as illegal immigration when it was adopted. We needed people. Everyone who came here became a citizen didn't they?

Another option would be to give anyone born here the same status immigration as their parents.

[Lord Xar]

??? Ron Paul has a constitutional amendment already regarding this. The 14th amendment was initially meant for "slaves" at that time, and was not meant for "all peoples" etc...

Ron Pauls Amendement is a more permanent version of the various bills that are circulating regarding this.

[angelatc]

This is from Wikipedia:



The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed jus soli, or "right of the territory"— does not exist in most of Europe or Asia, although it is part of English common law and is common in the Americas.

However, the phrase and subject to the jurisdiction thereof indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship. The following persons born in the United States are not considered "subject to the jurisdiction [of the United States]", and thus do not qualify for automatic citizenship under the Fourteenth Amendment:

* Children born to foreign diplomats;

* Children born to enemy forces in hostile occupation of the United States;

* Children born to Native Americans who are members of tribes not taxed (these were later given full citizenship by the Indian Citizenship Act of 1924).

The following persons born in the United States are explicitly citizens:

* Children born to US citizens;

* Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws.

The Supreme Court's ruling in Plyler v. Doe[3] stated that illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that "no 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." Some legislators, reacting to illegal immigration, have proposed that this be changed, either through legislation or a constitutional amendment.

[noxagol]

We should just repeal the 14th amendment anyways, it is a freaking DISASTER.

[foofighter20x]

We should just repeal the 14th amendment anyways, it is a freaking DISASTER.

I dunno... I knid of like the idea that the States can't violate my rights and that they must follow the same limitations the Bill of Rights places on the federal government...

[PennCustom4RP]

This is from Wikipedia:

Ok, looking at the last point in this wiki entry:

'Children born to aliens who are lawfully inside the United States (resident or visitor)...'

By this verbage, those born to illegal aliens would not be covered with birthright citizenship...being a visitor requires some knowledge at the border that they are here, via a passport or some other documentation.

so how are they?

[Omnis]

Aren't we technically supposed to be born citizens of states and not of the nation?

[Tn...Andy]

Aren't we technically supposed to be born citizens of states and not of the nation?

Yeah....prior to the writing of the 14th, that WAS the case. Way back when we had SOVEREIGN STATES and the purpose of the federal govt was simply to facilitate relations between the States and provide for a common defense.

It could also be quite successfully argued in my mind that the 14th was never ratified properly, since one requirement of the Southern States to be re-admitted the union was that they ratify the 14th.

Well, hey.....if they WEREN'T States then, having LEFT the United States in secession and no longer under the US Constitution, then HOW THE HECK COULD THEY RATIFY an amendment to a Constitution they were no longer a part of ???

[Matt Collins]

It could also be quite successfully argued in my mind that the 14th was never ratified properly, since one requirement of the Southern States to be re-admitted the union was that they ratify the 14th. A similar situation occurred with the 16th Amendment. There is a book about it you can get here: http://www.thelawthatneverwas.com/

[cjhowe]

??? Ron Paul has a constitutional amendment already regarding this. The 14th amendment was initially meant for "slaves" at that time, and was not meant for "all peoples" etc...

Ron Pauls Amendement is a more permanent version of the various bills that are circulating regarding this.

That's funny because the first line of the 14th amendment specifically says "all persons". If Congress meant it for just slaves, they certainly had the education necessary to legislate as such.

The first impulse of the 14th Amendment (passed in June 1866) was to constitutionalize and validate (It passed by overriding Andrew Jackson's veto) the Civil Rights Act of 1866 (passed in April 1866) which asserted “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.”
While inclusive of slaves and brought in response to the Dredd Scott decision, it clearly meant all persons, excluding untaxed Indians and those that some other government already had jurisdiction over.

The only way legislation that did not amend the constitution would remove this right from "anchor babies", is if you made those "anchor babies" not the jurisdiction of the U.S. AND repealed the specific portion of the Civil Rights Act of 1866.

This whole immigration discussion amazes me how people only want to "follow the law" when it suits their point of view. This isn't very principled. I suppose that I shouldn't expect principles from that side of the debate anyway.

[cjhowe]

Ok, looking at the last point in this wiki entry:

'Children born to aliens who are lawfully inside the United States (resident or visitor)...'

By this verbage, those born to illegal aliens would not be covered with birthright citizenship...being a visitor requires some knowledge at the border that they are here, via a passport or some other documentation.

so how are they?

Because that verbiage isn't the law. The law is very clear..."All persons born...and subject to the jurisdiction thereof... are citizens of the United States and of the state wherein they reside."

[angelatc]

Ok, looking at the last point in this wiki entry:

'Children born to aliens who are lawfully inside the United States (resident or visitor)...'

By this verbage, those born to illegal aliens would not be covered with birthright citizenship...being a visitor requires some knowledge at the border that they are here, via a passport or some other documentation.

so how are they?

The Supreme Court's ruling in Plyler v. Doe[3] .....

http://en.wikipedia.org/wiki/Plyler_v._Doe - The majority refused to accept that any substantial state interest would be served by discrimination on this basis......

So my Tax money isn't a substantial interest. Bah.

[Matt Collins]

That's funny because the first line of the 14th amendment specifically says "all persons". If Congress meant it for just slaves, they certainly had the education necessary to legislate as such.The Emancipation Proclamation was signed in 1862 I believe.

[Lord Xar]

Yeah... remember, the founding fathers didn't think that a neighboring country would supply 20+million illegal immigrants and then use anchor babies to plant a root etc... plus, this argument is tired....

You have scholars saying it was meant for slaves, others say 'no' its for everyone...

anarchists like cjhowe can only see things his way...

Here is Ron Pauls feelings on it:

http://www.house.gov/paul/tst/tst2006/tst100206.htm
Rethinking Birthright Citizenship


October 2, 2006


A recent article in the Houston Chronicle discusses the problem of so-called anchor babies, children born in U.S. hospitals to illegal immigrant parents. These children automatically become citizens, and thus serve as an anchor for their parents to remain in the country. Our immigration authorities understandably are reluctant to break up families by deporting parents of young babies. But birthright citizenship, originating in the 14th amendment, has become a serious cultural and economic dilemma for our nation.

In some Houston hospitals, administrators estimate that 70 or 80% of the babies born have parents who are in the country illegally. As an obstetrician in south Texas for several decades, I can attest to the severity of the problem. It’s the same story in California, Arizona, and New Mexico. And the truth is most illegal immigrants who have babies in U.S. hospitals do not have health insurance and do not pay their hospital bills.

This obviously cannot be sustained, either by the hospitals involved or the taxpayers who end up paying the bills.

No other wealthy, western nations grant automatic citizenship to those who simply happen to be born within their borders to non-citizens. These nations recognize that citizenship involves more than the physical location of one’s birth; it also involves some measure of cultural connection and allegiance. In most cases this means the parents must be citizens of a nation in order for their newborn children to receive automatic citizenship.

Make no mistake, Americans are happy to welcome immigrants who follow our immigration laws and seek a better life here. America is far more welcoming and tolerant of newcomers than virtually any nation on earth. But our modern welfare state creates perverse incentives for immigrants, incentives that cloud the issue of why people choose to come here. The real problem is not immigration, but rather the welfare state magnet.

Hospitals bear the costs when illegal immigrants enter the country for the express purpose of giving birth. But illegal immigrants also use emergency rooms, public roads, and public schools. In many cases they are able to obtain Medicaid, food stamps, public housing, and even unemployment benefits. Some have fraudulently collected Social Security benefits.

Of course many American citizens also use or abuse the welfare system. But we cannot afford to open our pocketbooks to the rest of the world. We must end the perverse incentives that encourage immigrants to come here illegally, including the anchor baby incentive.

I’ve introduced legislation that would amend the Constitution and end automatic birthright citizenship. The 14th amendment was ratified in 1868, on the heels of the Civil War. The country, especially the western territories, was wide open and ripe for homesteading. There was no welfare state to exploit, and the modern problems associated with immigration could not have been imagined.

Our founders knew that unforeseen problems with our system of government would arise, and that’s precisely why they gave us a method for amending the Constitution. It’s time to rethink birthright citizenship by amending the 14th amendment.

BUT REGARDLESS....... This amendment will put a stop to the 500,000 anchor babies born every year here. Finally, somebody with some sense... Ron Paul.

[AnotherAmerican]

Perhaps we should consider amending the 14th Amendment to the Constitution to read:
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 with the exception of those born in the United States to the parents of illegal immigrants.


Since you asked, I don't like the "except" clause. Narrowing things down with "except" clauses gives the Courts a fertile field of edge cases to "interpret."

Anyway, "those born in the US to the parents of illegal immigrants" is poorly worded. If I'm a US citizen, and somehow one of my kids ends up being an "illegal immigrant" (maybe the schmuck emigrates to Canada then regrets it and comes back without papers?), I then become the "parent of an illegal immigrant," and all my other children would lose their citizenship!

How about:



All persons born to a citizen of the United States, or naturalized in the United States, are Citizens of the United States and of the state wherein they reside.


That gets rid of "anchor babies" and does away with the need for a "jurisdiction thereof" clause to exclude children of foreign diplomats.

[Matt Collins]

Since you asked, I don't like the "except" clause. Narrowing things down with "except" clauses gives the Courts a fertile field of edge cases to "interpret."

Anyway, "those born in the US to the parents of illegal immigrants" is poorly worded. If I'm a US citizen, and somehow one of my kids ends up being an "illegal immigrant" (maybe the schmuck emigrates to Canada then regrets it and comes back without papers?), I then become the "parent of an illegal immigrant," and all my other children would lose their citizenship!

How about:



That gets rid of "anchor babies" and does away with the need for a "jurisdiction thereof" clause to exclude children of foreign diplomats.You are correct. My bad, thanks for the heads' up!

[cjhowe]

Yeah... remember, the founding fathers didn't think that a neighboring country would supply 20+million illegal immigrants and then use anchor babies to plant a root etc... plus, this argument is tired....

You have scholars saying it was meant for slaves, others say 'no' its for everyone...

anarchists like cjhowe can only see things his way...

Here is Ron Pauls feelings on it:


I don't think anarchists means what you think it does. My viewpoint on anchor babies and all of the other immigration issues comes from the basic principles of the DoI. All men are created equal and endowed by their Creator with certain unalienable rights. Where we have the capability to protect these rights, we should. We have the capability to protect these rights only where we have sovereignty. Where we do not have sovereignty we can only protect these rights by setting a proper example and hope others emulate.

Upon birth, we have the freedom to do ANYTHING that we want. We institute governments to guarantee that certain freedoms will be protected. Our immigration laws set a precedent that we will not protect the freedom of movement and that we will not protect the freedom of voluntary contract. When you place restrictions on which class of people you will protect freedoms, no freedom is then guaranteed by government. Therefore all freedoms can only be guaranteed by the individual, and therefore no good purpose for which the government can serve. This is not a good setting for a prosperous society.

[SeanEdwards]

I think there is a problem with the current system that encourages people to enter the country illegally in order to produce anchor babies.

However, I can not support a policy of deporting people that are de-facto Americans because they have known no other home. The children of the illegals are blameless. There are people who have been raised in the U.S., attended American schools, speak no other language than English, and yet are regarded under law as not American. Deporting these types of people would be a rank injustice. We do not blame children for the crimes of their parents. I think there must be a statute of limitations or something to protect these people. If the kid has lived for years in the U.S., then at some point we have to recognize that the state missed the opportunity to deport them.

[foofighter20x]

That's funny because the first line of the 14th amendment specifically says "all persons". If Congress meant it for just slaves, they certainly had the education necessary to legislate as such.

The first impulse of the 14th Amendment (passed in June 1866) was to constitutionalize and validate (It passed by overriding Andrew Jackson's veto) the Civil Rights Act of 1866 (passed in April 1866) which asserted “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.”
While inclusive of slaves and brought in response to the Dredd Scott decision, it clearly meant all persons, excluding untaxed Indians and those that some other government already had jurisdiction over.

The only way legislation that did not amend the constitution would remove this right from "anchor babies", is if you made those "anchor babies" not the jurisdiction of the U.S. AND repealed the specific portion of the Civil Rights Act of 1866.

This whole immigration discussion amazes me how people only want to "follow the law" when it suits their point of view. This isn't very principled. I suppose that I shouldn't expect principles from that side of the debate anyway.

Maybe I'm not understanding you, but the excerpt from the Civil Rights Act of 1866 you gave above says it excludes people subject to a foreign power.

Mexican citizens in the U.S. are still citizens of Mexico, and thus are still subject to a foreign power. I would think that their defiance of our law in entering our country without authorization would sort of make them not subject to our laws or the jurisdiction of those laws.

But maybe I'm just reading it wrong or missing your point... :confused:

[Lord Xar]

I don't think anarchists means what you think it does. My viewpoint on anchor babies and all of the other immigration issues comes from the basic principles of the DoI. All men are created equal and endowed by their Creator with certain unalienable rights. Where we have the capability to protect these rights, we should. We have the capability to protect these rights only where we have sovereignty. Where we do not have sovereignty we can only protect these rights by setting a proper example and hope others emulate.

Upon birth, we have the freedom to do ANYTHING that we want. We institute governments to guarantee that certain freedoms will be protected. Our immigration laws set a precedent that we will not protect the freedom of movement and that we will not protect the freedom of voluntary contract. When you place restrictions on which class of people you will protect freedoms, no freedom is then guaranteed by government. Therefore all freedoms can only be guaranteed by the individual, and therefore no good purpose for which the government can serve. This is not a good setting for a prosperous society.

Here is your fundamental flaw and one you do not acknowledge. WHEN a person BREAKS the law to impose themselves upon a situation to benefit from it, that person is not DUE these "undeniable" rights. Because the assumption is IF THEY WOULD NOT BREAK THESE LAWS, thus no ANCHOR BABIES.

So, to placate those like you - we will need to amend the constitution. Which we will.

[Matt Collins]

I think there is a problem with the current system that encourages people to enter the country illegally in order to produce anchor babies.

However, I can not support a policy of deporting people that are de-facto Americans because they have known no other home. The children of the illegals are blameless. There are people who have been raised in the U.S., attended American schools, speak no other language than English, and yet are regarded under law as not American. Deporting these types of people would be a rank injustice. We do not blame children for the crimes of their parents. I think there must be a statute of limitations or something to protect these people. If the kid has lived for years in the U.S., then at some point we have to recognize that the state missed the opportunity to deport them.I am not talking about deporting citizens or people born in the US at this point. But in the future, all those who were born in the US to illegals should not be considered citizens. That would help demagnetize the US from being overrun.

[cjhowe]

Here is your fundamental flaw and one you do not acknowledge. WHEN a person BREAKS the law to impose themselves upon a situation to benefit from it, that person is not DUE these "undeniable" rights. Because the assumption is IF THEY WOULD NOT BREAK THESE LAWS, thus no ANCHOR BABIES.

So, to placate those like you - we will need to amend the constitution. Which we will.

See, when I "spin" words like you say I do, I at least use the same word. These are not "undeniable" rights, but rather "unalienable". All rights are deniable. Ones right to life can be denied through murder. Simply because the right was denied, does not mean that the right has been removed from the individual, thus unalienable. We have due process to deal with those that break the law. Their presence here isn't the breaking of the law, their entry was. Again, this goes back to principles. In order to have a law saying entry is illegal, we wish that our government no longer protect the freedom of movement. If the government won't protect the freedom of movement for one individual, how can I expect it to protect my freedom of movement?

[SeanEdwards]

I am not talking about deporting citizens or people born in the US at this point. But in the future, all those who were born in the US to illegals should not be considered citizens. That would help demagnetize the US from being overrun.

My point is that that position is potentially unjust. If a child is born in the U.S. to illegal immigrant parents, and they spend their entire childhood in the U.S., it would not be right or desirable to come along when that kid is 18 years old, and is by every standard an American, and declare them to be unwelcome.

I agree with the point of not giving an incentive to illegal immigration, but that does not trump the reality that you are talking about the potential of deporting people who are not foreigners. That's why I mentioned a statute of limitations. If the kid spends their whole life in the US, how can you consider deporting them because of the crime of their parent? Now if the kid gets deported as a baby, that's more acceptable to me because they have not formed an attachment to our nation. But once they've spent 15 years going to American schools and grown up in our society, they are Americans, regardless of the immigration status of their parents.

Just imagine if you were in this position. Born in this country to illegal immigrant parents, and knowing no other home. How would you feel if the state came along when you were in your 20's and declared you weren't welcome and deported you to a country that you've never visited? Is that justice? I don't think so.

[cjhowe]

I am not talking about deporting citizens or people born in the US at this point. But in the future, all those who were born in the US to illegals should not be considered citizens. That would help demagnetize the US from being overrun.

The encouragement for immigrants to cross our borders isn't primarily citizenship, it's prosperity.

[Lord Xar]

http://federalistblog.us/2005/12/birthright_citizenship_fable.html


Here is a take on the theme.

*********************


Alien Birthright Citizenship: A Fable That Lives Through Ignorance


Updated 4/6/07

Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they are black or white? There is not a textbook referred to in any court which does not recognize the principle that I assert. --John A. Bingham (14th amendment co-author, January 20, 1862)


Ever since the subject of Congress taking up Birthright Citizenship have we seen the power of ignorance at work through the MSM. It is difficult to find any editorial or wire story that correctly gives the reader an honest and accurate historical account of the Fourteenth Amendment in regards to children born to foreign parents within the United States. Most often the media presents a fabled and inaccurate account of just what the Citizenship Clause of the Fourteenth Amendment means.

Recent story lines go something like this: "Currently the Constitution says that a person born in this country is an American citizen. That's it. No caveats." The problem with these sort of statements other than being plainly false is that it reinforces a falsehood that has become viewed as a almost certain fact through such false assertions over time.

This is like insisting the sun rotates around the earth while ignoring the body of evidence to the contrary.

During the reconstruction period following the civil war the view on citizenship was that only children born to American parents owing allegiance to no other foreign power could be declared an American Citizen upon birth on U.S. soil. This is exactly the language of the civil rights bill of 1866: "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."

Sen. Lyman Trumbull said of the above: "My own opinion is that all these persons born in the United States and under its authority, owing allegiance to the United States, are citizens without any act of congress." Can an illegal alien be said to owe the United States allegiance? Can an alien be said not to owe some other country his/her allegiance without evidence?

The author of the Fourteenth Amendment, Rep. John A Bingham (OH), responded to the above declaration as follows: "I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."

The opinion of US Attorney General Edward Bates in 1862 said: "The Constitution does not make the citizen, it is in fact made by them." If so, how then does an alien make a citizen of the United States?

It just gets worst for advocates who want to either believe or, revise history, to support their fable that the Fourteenth Amendment somehow magically makes anyone born in the United States regardless of the allegiance of their parents a natural born citizen.

Sen. Jacob Howard, who wrote the Fourteenth's Citizenship Clause believed the same thing as Bingham as evidenced by his introduction of the clause to the US Senate as follows:

[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Notice Howard did not say virtue of "common law," but virtue of "natural law." Natural law at the time considered all children born, no matter where, inherited the condition of their father. A German child born to a German father in the United States would be under natural law a German citizen because that is the condition of the father.

And why is Howard singling out persons who are foreigners and aliens, and also persons who belong to "families of ambassadors" or "foreign ministers"? As we will soon see by further comments of Howard, only those who enjoy the same jurisdiction as citizens of the United States are the class of persons for whom he is speaking.

Furthermore, what was this law of the land already Howard speaks of? "All persons born in the United States and not subject to any foreign power" are citizens of the United States. So what Howard is making clear here is the simple fact his citizenship clause is no different then the law of the land already which demanded allegiance to the United States by at least the child's father before that child could be considered a U.S. born citizen. This alone makes liberal construction to the contrary impossible.

When one is said to be subject to some nations jurisdiction, this means they are considered as a citizen of that nation. When an alien visits or sneaks into this country they are only under the jurisdiction of local laws and ordinances, and not subject to the jurisdiction of the United States because they are not subjects of the nation in owing the country any allegiance.

The only recognized means for non-Americans to come under US jurisdiction for purposes of citizenship under the US Constitution is through the process of naturalization, which among other things requires an oath of allegiance to the United States. Sen. Reverdy Johnson said as much when debating the citizenship clause in the Senate: "And I know no mode by which an alien can become a citizen of the United States except under the naturalization laws of the United States."

So than, what exactly did subject to the jurisdiction mean? Sen. Lyman Trumbull, Chairman of the Judiciary Committee, framer of the Thirteenth Amendment told us in clear language what the phrase means under the Fourteenth:

[T]he 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.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

Sen. Jacob M. Howard, responded to Trumbull's construction by saying:

[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

Anyone familiar with the rule of jus soli under common law will instantly recognize that Howard does not intend to recognize it under National law, and instead, demands the same jurisdiction that applies to American citizens. Under this interpretation, the language well could had read "all persons born to American citizens."

Moreover, United States Revised Statute 1992 [1886] is completely incompatible with the rule of jus soli: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” How can a foreign citizen of another country, who has not yet renounced his/her allegiance to their own country, not be an subject of their own country of origin?

Sen. Doolittle defined "subject to the jurisdiction thereof" as: "Subject, first, to its military power; second, subject to its political power; third, subject to its legislative power." Can the United States compel a foreigner to military duty, or jury duty? Can a foreigner vote in national elections? It is this kind of complete jurisdiction the phrase demands, and which Howard explains is the same jurisdiction that applies to "citizens of the United States now."

One might wonder why did Jacob Howard use the phrase "subject to the jurisdiction thereof" rather than the language of the civil rights bill of 1866? The answer is simple: He feared the States could at any time start taxing Indian's, and therefore, making them eligible for citizenship -- something most in Congress at the time did not desire. Since Indians were not under the direct jurisdiction of the United States (they were under the jurisdiction of their respected tribes) the language of the Fourteenth Amendment would disqualify them.

Still confused to exactly what "subject to the jurisdiction thereof" really means? Let us then hear what the same Senate said it means several years after the adoption of the Fourteenth Amendment, in plainer and more comprehensive language that can easily be understood by anyone today with a above 6th grade education. The following is from Sen. James K. Kelly (OR), 42nd Congress, speaking before a session of the Senate on April 26, 1872:

[Take], for instance, the case that arose in the State of Oregon, and was decided by the district court, to which reference was made the other day. A man was born at Astoria, then known as Fort George, beneath the British flag, and, as a matter of course, being the child of a British subject, and born without the allegiance of the United States, because he was not born within the allegiance of the United States, in order to make him a citizen, he was born within the allegiance of the King of Great Britain at the time, and it was so held by the court, and properly held. We had no right to make the children of British subjects American citizens; no more had they a right to make the children of American parents subjects of Great Britain.

...[and] in order to be a citizen of the United States he must been not only be born within the United States, but born within the the allegiance of the United States.

Here Sen. Kelly lays out exactly what our national law was on the subject of citizenship by birth and clearly removes all doubt to exactly what the Fourteenth's Citizenship Clause means.

Sen. Howard left no doubt what the clause meant in 1868: "[T]he Constitution as now amended, forever withholds the right of citizenship in the case of accidental birth of a child belonging to foreign parents within the limits of the country."

Secretary of State, Thomas Bayard, said of a German alien born in Ohio in 1867: "Richard Greisser was, no doubt, born in the United States, but he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States.' He was not, therefore, under the statute and the constitution, a citizen of the United States by birth; and it is not pretended that he has any other title to citizenship."

John Peter Sharboro was born in the United States to Italian parents in 1852, his father became naturalized in 1860. At the time of his birth his father was subject to a foreign power, and it was held that John followed the citizenship of his father. Once his father had become naturalized, John automatically became a naturalized citizen of the United States.

Myths can be difficult to dispose of, and birthright citizenship to aliens is no exception. Pro immigration advocates will refer to the Supreme Court ruling U.S. v. Wong Kim Ark as a desperate attempt to keep the fable alive. The problem with relying on Wong Kim Ark is that it draws zero support from the Fourteenth Amendment. In fact, the ruling had nothing to with the Fourteenth Amendment at all, but everything to do with English Common Law, something the Fourteenth's Citizenship Clause had no connection because it was a virtue of "national law," which of course is the condition of the child's parents that determines citizenship.

There is other significant problems with the Wong Kim Ark ruling other than having no basis in Fourteenth Amendment text, intent and history that will never hold up under review -- and that is how will any court with a straight face attempt to reconcile the civil rights bill of 1866. Remember this civil rights bill declared those children born to parents subject to a foreign power cannot be declared United States citizens.

You cannot simply revise he Fourteenth's Citizenship Clause to mean yes, it really was the intent of the Congress to grant citizenship to alien children born on US soil when the same Congress enacted law that did just the reverse. Try and explain why Congress would pass a Constitutional Amendment that grants citizenship to ANYONE born in the US that would in return instantly nullify their recent enacted civil rights law? Because you cannot, only leads us back to the exact construction of the clause for which it was intended and written to mean...and for which national law was based upon.

Another question arises for pro-alien birthright citizenship advocates: national law having always required direct allegiance to the United States by a child's parents before that child could be declared an American citizen -- why would a Congress who clearly acknowledged this "law of the land" want to change it and not one soul raised one voice of concern or protest to such a drastic reversal of national law?

The answer should be obvious by now: the Fourteenth Amendment did not change national law of birthright citizenship to aliens or foreigners, just as Sen. Howard confirmed.

It’s also important to understand the majority decided that Ark’s parents were domiciled in the State of California at the time of his birth. The majority considered the fact his parent’s were business owners, not visitors or aliens residing in the State contrary to any law. So this fact makes using this ruling to support automatic citizenship to either illegal aliens or visitors a real stretch of the imagination. Moreover, being domiciled probably isn't enough because John Bingham had forcibly argued being domiciled, no matter for how long, does not change ones allegiance.

The court in Minor vs. Happersett (1874), said there was doubts to conferring citizenship to aliens, but there could be no doubt that children born to American citizens, are in fact citizens:

"Allegiance and protection are, in this connection [citizenship], reciprocal obligations... At common law, with the nomenclature of which framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens, became themselves, upon their birth, citizens also... Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."

By far the most relevant Supreme Court ruling on the subject to date, and indeed, fully supported by the Fourteenth Amendment itself, came in Elk v. Wilkins 112 U.S. 94 (1884), where the court held that the phrase "subject to the jurisdiction" requires "direct and immediate allegiance" to the United States, not just physical presence.

If pro immigration groups or individuals want to continue in believing the Fourteenth Amendment grants citizenship to anyone born in the country regardless of their allegiance, fine -- but to continue to insist the Fourteenth Amendment supports their fable is both feeble and a disrespect to American history.

[Mesogen]

I dunno... I knid of like the idea that the States can't violate my rights and that they must follow the same limitations the Bill of Rights places on the federal government...

They couldn't violate your rights before the 14th either. The only one that didn't apply to them was the first.

And if your rights to free speech and freedom of religion and press etc. were really un/in alienable then the States couldn't rightly violate them without the Federal Govt intervening. That would have been the way it works in theory anyway.

[Hardrock]

Ok, looking at the last point in this wiki entry:

'Children born to aliens who are lawfully inside the United States (resident or visitor)...'

By this verbage, those born to illegal aliens would not be covered with birthright citizenship...being a visitor requires some knowledge at the border that they are here, via a passport or some other documentation.

so how are they?

++1 Ditto!

Also see: "under the jurisdiction thereof"

Those not LEGAL US citizens are under the jurisdiction of the country with
which they DO hold LEGAL citizenship.


How do they get around it?

Aside from a sleeping citizenry, .......the NAU.


Roll back all the unconstitutional BS that the Cheney/Addison cabal
implemented over the last 15-20 years, and the Constitution works
just fine AS IS.

Don't get to eager to fix something that's NOT broken.
Jumping to ammend the Constitution, you will soon be unindated
with a mob of "nutcases" with every conceiveable "interpretation"
known to man.

.

[Matt Collins]

Wow - I didn't think this would get dredged up again

[jmdrake]

Yeah....prior to the writing of the 14th, that WAS the case. Way back when we had SOVEREIGN STATES and the purpose of the federal govt was simply to facilitate relations between the States and provide for a common defense.

It could also be quite successfully argued in my mind that the 14th was never ratified properly, since one requirement of the Southern States to be re-admitted the union was that they ratify the 14th.

Well, hey.....if they WEREN'T States then, having LEFT the United States in secession and no longer under the US Constitution, then HOW THE HECK COULD THEY RATIFY an amendment to a Constitution they were no longer a part of ???

Wrong. If they weren't states then only the northern states had to ratify it. Demands were put on the southern states to ratify for readmission so that there would be not question about the legitimacy of the amendments. I know some people don't want to admit this, but slavery was A (though not THE) cause of the civil war and the issue needed be settled once and for all. Besides, when Utah was admitted into the union they were forced to first renounce polygamy in their laws.

The 14th amendment is VERY important as was the 13th and the 15th. Ron Paul in his speech "Sorry Mr. Franklin, we are all democrats now" pointed out that the founding fathers originally allowing slavery was a MISTAKE and a cause for the civil war. The section of the 14th amendment stating that "debt can't be questioned" is evil and should be removed but everything else is vital to this nation. Also, as others have pointed out, the "anchor baby" issue shouldn't apply to people not in this country legally. Unfortunately the issue has been muddled by the courts.

Regards,

John M. Drake