Original intent of the 14th Amendment

Original intent of the 14th Amendment

14thAmendment.us



The 14th Amendment to the U.S. Constitution reads in part:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."

Babies born to illegal alien mothers within U.S. borders are called anchor babies because under the 1965 immigration Act, they act as an anchor that pulls the illegal alien mother and eventually a host of other relatives into permanent U.S. residency. (Jackpot babies is another term).

The United States did not limit immigration in 1868 when the Fourteenth Amendment was ratified. Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.

Post-Civil War reforms focused on injustices to African Americans. The 14th Amendment was ratified in 1868 to protect the rights of native-born Black Americans, whose rights were being denied as recently-freed slaves. It was written in a manner so as to prevent state governments from ever denying citizenship to blacks born in the United States. But in 1868, the United States had no formal immigration policy, and the authors therefore saw no need to address immigration explicitly in the amendment.

In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:

"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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

This understanding was reaffirmed by Senator Edward Cowan, who stated:

"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..."

The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.

Supreme Court decisions

The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.

Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called "Slaughter-House cases" [83 US 36 (1873) and 112 US 94 (1884)]. In the 1884 Elk v.Wilkins case, the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." In Elk, the American Indian claimant was considered not an American citizen because the law required him to be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."

The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. In other words, they must be United States citizens.

Congress subsequently passed a special act to grant full citizenship to American Indians, who were not citizens even through they were born within the borders of the United States. The Citizens Act of 1924, codified in 8USCSß1401, provides that:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.

In 1889, the Wong Kim Ark Supreme Court case, once again, in a ruling based strictly on the 14th Amendment, concluded that the status of the parents was crucial in determining the citizenship of the child. The current misinterpretation of the 14th Amendment is based in part upon the presumption that the Wong Kim Ark ruling encompassed illegal aliens. In fact, it did not address the children of illegal aliens and non-immigrant aliens, but rather determined an allegiance for legal immigrant parents based on the meaning of the word domicil(e). Since it is inconceivable that illegal alien parents could have a legal domicile in the United States, the ruling clearly did not extend birthright citizenship to children of illegal alien parents. Indeed, the ruling strengthened the original intent of the 14th Amendment.

The original intent of the 14th Amendment was clearly not to facilitate illegal aliens defying U.S. law and obtaining citizenship for their offspring, nor obtaining benefits at taxpayer expense. Current estimates indicate there may be between 300,000 and 700,000 anchor babies born each year in the U.S., thus causing illegal alien mothers to add more to the U.S. population each year than immigration from all sources in an average year before 1965.

American citizens must be wary of elected politicians voting to illegally extend our generous social benefits to illegal aliens and other criminals.

The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. In other words, they must be United States citizens.

Wrong. Even IF the author is right that children of illegal aliens are not entitled to automatic citizenship, this is not the same as saying the parents need to be citizens. The Wong Kim Ark case explicitly refutes that idea:

SCOTUS wrote: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,

So being "subject to the jurisdiction of the United States" does not mean being a citizen, or swearing your undivided allegiance to the US.

Note that the quotes from the Senators were made while the Amendment was being debated, and represent just two voices in a chorus of diverse viewpoints. Apparently Edgar Cowan opposed the Citizenship Clause (for racist reasons), so I'm not sure how his "understanding" of the clause is supposed to "reaffirm" what Howard said. The only body that can affirm the meaning of the Constitution is the SCOTUS.

The debate is fascinating to read, by the way. Here's the page where the two Senators make those statements:

http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11

I don't recall how I stumbled upon this column last night. I was literally searching for something entirely different but came upon this during that search. So, I decided to post it after reading it. I found much of it interesting.

That said, I staunchly think that anyone born here who's parent broke the law coming here (illegal aliens obviously) should not even be considered for citizenship. It's a slap in my face and immigrants who did it the right way.

Links associated with the above column;

P.A. Madison, Former Research Fellow in Constitutional Studies, The UnConstitutionality of Citizenship by Birth to Non-Americans (February 1, 2005)

Madeleine Pelner Cosman, Ph.D., Esq., Illegal Aliens and American Medicine The Journal of the American Physicians and Surgeons, Volume 10 Number 1 (Spring 2005)

Al Knight, Track 'anchor babies', Denver Post (September 11, 2002)

Al Knight, Change U.S. law on anchor babies, Denver Post (June 22, 2005)

Tom DeWeese, The Mexican Fifth Column (January 27, 2003)

Anchor Babies: The Children of Illegal Aliens (Federation for American Immigration Reform)

Tom DeWeese, "The Outrages of the Mexican Invasion" (American policy Center)

P.A. Madison, Alien Birthright Citizenship: A Fable That Lives Through Ignorance The Federalist Blog (December 17, 2005)

Dr. John C. Eastman, Professor of Law, Chapman University School of Law, Director, The Claremont Institute Center for Constitutional Jurisprudence, Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty - Testimony, U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Border Security and Claims (September 29, 2005)

William Buchanan, HR-73 -- Protecting America's Sovereignty, The Social Contract (Fall, 1999) - includes discussion of the related Wong Kim Ark 1898 Supreme Court case


Charles Wood, Losing Control of the Nation's Future -- Part Two -- Birthright Citizenship and Illegal Aliens, The Social Contract (Winter, 2005) - includes discussion of the related Wong Kim Ark court case

U.S. Supreme Court ELK v. WILKINS, 112 U.S. 94 (Findlaw, 1884)

U.S. Supreme Court Slaughter-House cases ('Lectric Law Library, 1873)

http://www.lectlaw.com/files/case30.htm

TexasBlue wrote:I don't recall how I stumbled upon this column last night. I was literally searching for something entirely different but came upon this during that search. So, I decided to post it after reading it. I found much of it interesting.

That said, I staunchly think that anyone born here who's parent broke the law coming here (illegal aliens obviously) should not even be considered for citizenship. It's a slap in my face and immigrants who did it the right way.

There's a Supreme Court decision (Plyler v Doe, 1982) that might say you're wrong there. Maybe not. I'll get back to you on that.

The crux of the issue, it seems to me, is what is meant by "subject to the jurisdiction thereof." That's what it all turns on.

Lemme know what you find.

Well, Plyler v Doe wasn't about the Citizenship Clause; it was about the Equal Protection Clause, also in the Fourteenth Amendment, and which is also worded (although slightly differently) so as to apply to persons under the jurisdiction of the United States.

The issue was that the state of Texas had attempted to deny education to illegal immigrant children. This was found unconstitutional; in violation of the Equal Protection Clause of the 14th Amendment, which covers "any person within its jurisdiction." SCOTUS held that illegal aliens are within its jurisdiction, effectively defining jurisdiction to mean being subject to the laws of the state in which they are present (which illegal aliens are). Therefore, illegal aliens are covered by the Equal Protection clause.

Like I said, the case doesn't touch on citizenship, but it does define jurisdiction. So I think the authors of your article would need to make an argument that jurisdiction means something different in the citizenship Clause than it does in the Equal Protection Clause, or that "subject to the jurisdiction" means something different from "within the jurisdiction."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=457&invol=202

This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 210-216.

Section II of the opinion spells this out at greater length, particularly here:

Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction - either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States - he is entitled to the equal protection of the laws that a State may choose to establish.

So basically, if you are physically present within US borders, you fall within its jurisdiction.

kronos wrote:So basically, if you are physically present within US borders, you fall within its jurisdiction.

I think that's as it should be. I still have a problem with the SCOTUS' ruling though. I can't ever make amends on the issue of someone here illegally having a kid here and that kid automatically becomes a citizen. That issue in itself is a part of the huge problem we have with illegals here. It's a known fact that many come here pregnant just to have that kid so that they too can enjoy the perks of being part of the USA gravy train.

Someone (legislator in congress) need to grow a set and push this issue for a new amendment to the constitution. That's the only way it will change.

I also understand that the SCOTUS judges interpret the law and even make rulings that they don't agree with even though it's the right ruling based on law.

TexasBlue wrote:Someone (legislator in congress) need to grow a set and push this issue for a new amendment to the constitution. That's the only way it will change.

Something like this?

kronos wrote:

TexasBlue wrote:Someone (legislator in congress) need to grow a set and push this issue for a new amendment to the constitution. That's the only way it will change.

Something like this?

Exactly! It's appears to be a fair amendment as far as I'm concerned.

TexasBlue wrote:

kronos wrote:

TexasBlue wrote:Someone (legislator in congress) need to grow a set and push this issue for a new amendment to the constitution. That's the only way it will change.

Something like this?

Exactly! It's appears to be a fair amendment as far as I'm concerned.

So how would you, Tex, prove your citizenship if this went through? Remember, you can't use your birth certificate!

I think this amendment would be a disaster. It would throw into question everyone's citizenship, legal and illegal alike. The result: chaos.

kronos wrote:So how would you, Tex, prove your citizenship if this went through? Remember, you can't use your birth certificate!

I think this amendment would be a disaster. It would throw into question everyone's citizenship, legal and illegal alike. The result: chaos.

http://www.ehow.com/how_2221739_prove-citizenship.html

I know where you're coming from here but this amendment would probably lead to profiling.

1. Obtain a copy of your birth certificate from the health department. Contact the health department in the county of your birth for an official copy of your birth certificate. This is the primary document to prove citizenship.

Nope, this can't be used anymore. Remember, now that this amendment has passed, birth on US soil no longer = US citizenship!

2. Use your naturalization certificate to prove citizenship. If you are born outside of the country but take the legal steps to become a citizen, a naturalization certificate is granted. Naturalization certificates are legal proof of citizenship

That's all well and good for naturalized citizens, but what about us natural borns? I don't have a naturalization certificate, nor could I ever get one.

3. Present a Consular Registration of Birth Abroad certificate to prove citizenship. If your parents registered your birth with a U.S. Consulate in the first five years of your life, a certificate called a Consular Registration of Birth Abroad is presented.

Again, what if you don't have such a document and are illegible to ever have such a document because you weren't born abroad?

4. Apply for a passport or Certificate of Citizenship. If you were born abroad to legal citizens of the U.S. but no record of your birth was registered with the U.S. Consulate, you need to apply for a passport or Certificate of Citizenship. You'll need to provide proof of citizenship and residency for your parents. Use their birth certificates and marriage documents, as well as tax documents as proof. Supply your birth certificate and proof of your identity.

Your parents' birth certifcates are no good anymore.

So again, how would you prove your citizenship, given that your mere birth here proves nothing, as that no longer automatically confers citizenship.

I get why you support this amendment, but I see unforeseen consequences. The road to hell is paved with good intentions and all that.

Yeah, yeah and yeah.

But do you really think that anyone is going to question your legal status here? This is more geared towards the problem we have with Mexico and not much more.

Seriously, people are really sick and tired of this illegal bullshit. Everywhere I go and all people I talk to are sick of this. I have yet to meet one person, liberal or conservative, who makes excuses for illegals.

Now, I know you're not doing that. You're playing devils advocate.

TexasBlue wrote:But do you really think that anyone is going to question your legal status here? This is more geared towards the problem we have with Mexico and not much more.

Probably not; I'm "white, non-Hispanic."

If I were Hispanic, this amendment would scare the shit out of me, because I'd know that I'd be targeted to prove my citizenship, and there'd be no way I could so so, even if I was a legitimate citizen.

And I can't possibly support a Constitutional amendment on the basis that its terrible consequences probably wouldn't happen to me personally.

Seriously, people are really sick and tired of this illegal bullshit. Everywhere I go and all people I talk to are sick of this. I have yet to meet one person, liberal or conservative, who makes excuses for illegals.

I understand that Mexicans come here illegally out of desparation, to escape shit poverty, looking for a better life. Am I the first person you've talked to who makes excuses for them? You tell me. I don't think poverty is an excuse; I think it is the causal mechanism behind the whole thing.

Of course, I do think they should be deported when identified. But I get why they come here, and I can't say I wouldn't try to do the same if I were in their shoes.

Now, I know you're not doing that. You're playing devils advocate.

No, I'm really not. Vitter's amendment would not work, and I'm trying to explain why that is. His solution is simplistic and has consequences that he probably never thought about.

I'm also very skeptical of the claim that a signifigant number of Mexicans come here illegally for the express purpose of having "anchor babies." Several hundred Mexicans cross the border every day. What percentage would you say do so specifically to have "anchor babies?" I suspect this is a very low number indeed. In which case, destroying that incentive, in addition to throwing everyone's citizenship into the air, would have a marginal effect at best on stopping the tide of illegal immigration.

You may be correct in all of this. One can't really say for sure. The thing is, is that something needs to be done about our illegals problem. Letting them come and stay isn't working.

As for the anchor babies bit, I can't just point to Dallas Parkland Hospital (where Kennedy died). Since the Dallas paper took the story down, I hae to rely on Snopes.com who found the stuff circulating the Internet to be true. I know this anyway because I remember the story quite well.

70% of the women who gave birth at Parkland in the first three months of 2006 were illegal immigrants

http://www.snopes.com/politics/immigration/parkland.asp

http://www.common-sense-politics.org/2010/06/23/just-one-hospital/

I'm not saying illegal immigrants don't have babies here in huge numbers. 4% of the US population is illegal Mexican immigrants; 8% of babies are born of illegal immigrants. Those are staggering figures.

But I am deeply skeptical of the claim that any significant number of them come here specifically to have babies. That when they pile by the hundreds into trucks and shipping containers for the coyotes to take them across, the big goal they have in mind is to have a baby. Rather, I think for the most part they come up here looking for a better life, and during the course of their lives here, they happen to make babies, as people do.

http://www.politifact.com/truth-o-meter/statements/2010/aug/06/lindsey-graham/illegal-immigrants-anchor-babies-birthright/

^According to the above-linked article, there is a Pew Hispanic Center poll (which I've been unable to find so far) that notes two patterns in illegal immigration that are damaging to the "anchor baby" hypothesis. One, the volume of illegal immigration rises and falls with the economy, strongly suggesting that jobs and money, not babies, are the primary draw. Two, men significantly outnumber women across all age ranges, which would makes no sense if the goal is to have babies.

If it's true that "anchor babies" are simply a consequence of illegals living here, and not the goal per se, then Vitter's amendment would change very little.