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`Anchor Babies` and "subject to the jurisdiction of the United States"

  1. GA Anderson profile image87
    GA Andersonposted 15 months ago

    The controversy over birthright citizenship, (aka `Anchor babies`), seems to one of interpretation.

    Specifically, the 2nd hurdle to citizenship the 14th Amendment included; that the mother must be;
    "...subject to the jurisdiction of the United States."

    It appears that there are  two primary interpretations. One is that the phrase means subject to our laws, and being subject to arrest for breaking them. The other interprets it to mean subject to allegiance to our country.

    It also appears there are serious scholars defending each interpretation. Each of which, (interpretations), has its own base of supporters, (ie. Conservative/Liberal).

    Casual reading seems to indicate the latter interpretation, (the one conservatives support), has a firmer standing. The reasons for this have been, and are, the  fodder of heated debates.

    What say you?

    Here's a good, (I think), backgrounder on 14th Amendment Controversy

    GA

    1. jackclee lm profile image80
      jackclee lmposted 15 months ago in reply to this

      The original intent should be the guide on interpreting this. It is hard for me to believe the politicians at the time thought it would be a good idea for anyone just to come here and have a baby for the unique purpose of gaining citizenship. The fact that this is happening on a increasingly scale should be a trigger to re-examine the interpretation. This policy is not caste in stone. We can change the policy when it is appropriate to deal with new problems. We have enough of a problem dealing with undocumented immigrants and this is just one piece of the problem we don't want to encourage and make it bigger. IMHO

      1. GA Anderson profile image87
        GA Andersonposted 15 months ago in reply to this

        But your guide can turn into a club to beat you with.

        In this case, I think your are right about what their intent was, and that the latter definition does seem to agree with the prelude instances concerning citizenship, (1866 & 1868). Especially so when there appear to be documented period explanations of what their intent was.

        On the other hand, (and referencing the first interpretation supporters), the framers were very considered, purposeful, and concise in their choice of words and wording. Sooo....

        Based on explanations and parsings of subsequent Supreme Court rulings I think the reasoning that Congress does have the power to legislate an interpretation of "...subject to the jurisdiction of the United States." without a need to amend the Constitution is correct.

        GA

    2. Old Poolman profile image81
      Old Poolmanposted 15 months ago in reply to this

      Let's just hope this never goes before the Supreme Court or they will completely rewrite it based on their mood for that day.  I personally believe it should be done away with.  Here along the Arizona border we not only have to pay for the illegals child delivery with tax dollars, but then the baby is a US Citizen?  Something about this just doesn't seem right.

      1. Kathryn L Hill profile image85
        Kathryn L Hillposted 15 months ago in reply to this

        The war has started ... its on our soil already.
        who started it?
        the Presidents in our very midst?
        ~ we gotta be really really be careful the next election,
        I would say.

      2. GA Anderson profile image87
        GA Andersonposted 15 months ago in reply to this

        Oh ye of little faith. Glad you chimed in Old Poolman, but come on now, I think we might have to agree that even with the perceived disastrous Supreme Court decisions in our past, they do seem to have gotten things right a lot more than wrong.

        But... I cling to that optimism as I do that I will always be able to find a silver lining, because in this case you could be right.

        GA

    3. colorfulone profile image87
      colorfuloneposted 15 months ago in reply to this

      I think it would be far better to base citizenship for new born children on the right of blood rule (jus sanguinis)  when the parents are legal immigrates. 

      Granting anchor babies birthright citizenship on the right of the soil rule (Jus soli) of parents who are illegal immigrants is proving to not be working well for American tax payers.

      1. GA Anderson profile image87
        GA Andersonposted 15 months ago in reply to this

        ... and from a conservative perspective it is also not very logical.

        For "allegiance" interpretation supporters, the right of blood determination is part of the allegiance to a foreign sovereignty explanation of earlier citizenship legislation. Makes sense to me.

        GA

    4. Don W profile image83
      Don Wposted 15 months ago in reply to this

      Seems clear there were only two groups of children who were born within the United States, but deemed outside the jurisdiction of the United States: 1) children whose parents are subjects of a foreign government and who are born within the domain of that government and 2) children whose parents are ambassadors, diplomats etc for a foreign nation. This was confirmed by the Supreme Court in relation to the case of a native American seeking citezenship:

      '[Native Americans] are no more "born in the United States and subject to the jurisdiction thereof" than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations' (Elk v. Wilkins, 1884)

      Native Americans were deemed to be outside the jurisdiction of the US because at the time of the 14th amendment native Americans were exempted from taxation by treaty with the US government, and Acts of Congress only applied to them if it was explicitly stated within the Act. They were deemed to be "alien nations" (Elk v. Wilkins) within the territory of the United States.

      Do the children of illegal immigrants sit in either of those groups? The second group is obviously not applicable in the case of illegal immigrants, as such immigrants don't tend to be ambassadors and diplomats. So we can discount that immediately. What about children whose parents are subjects of a foreign government and who are born within the domain of that government?

      While such children are born to parents who are foreign nationals, they are not born within the domain of a foreign government. In other words, such children are born within the jurisdiction of the United States government, not their parent's government. If that were not the case, then that would mean diplomatic immunity would be extended to all foreign nationals within the country, not just those who are part of a diplomatic mission. Obviously that is not what was intended.

      So the only time children born on US soil have been deemed to be outside US jurisdiction is in the case of native Americans (before 1924) and foreign diplomatic staff:

      "The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country[my emphasis]. (United States v. Wong Kim Ark, 1898)

      So it seems very clear that children born within the United States, are subject to the jurisdiction of the United States (with the exception of diplomatic staff) and are therefore (as per the constitution) citizens of the United States. As such, removing citizenship from those children, and/or discontinuing birthright citizenship for such children in the future, without an amendment, would be unconstitutional, a breach of those children's constitutional rights, and would also set a dangerous precedent.

      1. rhamson profile image76
        rhamsonposted 15 months ago in reply to this

        Your statement of "within the jurisdiction of the United States government" is a great deal different than the text as stated in the Constitutional amendment. The wording in the Constitution states "SUBJECT to the jurisdiction of the United States Government". With your wording it broadly carries many different connotations. "Within" can mean the area therein or location and it can mean in accordance to a given understanding. But "Subject" to is a more defined and direct statement carrying with it more of an extenuating circumstance including how something is achieved or condition and in relationship to it coming about.

        That is why this amendment has been linked to many different Supreme Court arguments including opposition to Roe v Wade in it's separation of the fetus rights from the mothers rights when defining the rights of an individual separate from the surrogate carrying the fetus. In this case according the Supreme Court it has been determined that the two are combined as is the decision of the mother. Is it a Trojan horse issue while one act is innocuous from the other until the birth and claims of citizenship occurs after the event? Perhaps in some cases but much evidence to the contrary exists within the "Anchor Baby" phenomena. It is a glitch in the law that tugs at the heart of any parent and while it may seem noble to allow the family to continue living in the US because of the child's claim to citizenship is it fair to others that follow the law and do the right thing? What does it say about us as a country which stands on the principles of fairness and justice accessible to all? Not much if we just turn the other way in defending a loophole. In other words if you cheat you win.

        1. Don W profile image83
          Don Wposted 15 months ago in reply to this

          Thank you for the correction. That wording was an oversite on my part. Later on in the comment you see I use the terminology: ". . . are subject to the jurisdiction of the United States. . . " which is the terminology intended.

          Historical evidence strongly suggests that natural-born citizenship, based on being born within and subject to US jurisdiction is the fully intended meaning of the 14th amendment. First, the constitution was heavily influenced by English common law, and to make sense of it requires understanding of it within that context. The Supreme Court said exactly this in its consideration of United States v. Wong Kim Ark, 1898:

          "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."

          The concept of natural-born citizenship had been well established in English common law prior to the time of the 14th amendment:

          "All persons born within the dominion of the Crown (with the very limited exception before stated*), whether of British or foreign parents . . . are to all intents and purposes British subjects and owe allegiance to, and are entitled to protection from, the Sovereign of the realms. [my emphasis]" (Nationality: or The law relating to subjects and aliens, Lord Chief Justice Cockburn, 1869)

          *The exception related to those whose parents were accused of high treason etc.

          Note how the language and structure of the 14th amendment are influenced by the language and structure of this English common law principle. It's within this context that we should interpret the intended meaning of that amendment. That is exactly what the Supreme Court have repeatedly done. For example in the case of Inglis v. The Trustees of Sailor’s Snug Harbor (1830) the Court said:

          "That the father and mother of the demandant were British born subjects is admitted. If he was born before the 4th of July, 1776, it is as clear that he was born a British subject. If he was born after the 4th of July, 1776, and before the 15th of September, 1776 [when the British again occupied New York, where Inglis was born], he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth. [my emphasis]"

          This demonstrates the use of the English common law principle - where you are born confers your rights and protections as a subject, not who your parents are - was used as part of US jurisprudence, and became the template for the principle of natural born citizenship in the United States (with only some slight changes to wording) well before the 14th amendment. Another example:

          "Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on a European King to a free and sovereign State; British subjects in North Carolina became North Carolina freemen; and all free persons born within the State are born citizens of the State. The term "citizen," as understood in our law, is precisely analogous to the term "subject" in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a "subject of the king" is now "a citizen of the State." [my emphasis](State v. Manuel, 1838)

          In other words, when the former British colony became the United States, the English common law principle of natural born citizenship changed only inasmuch as "subject" became "citizen". But we can also find clues that go back even further that prove that this was indeed the established common law meaning in the US:

          "It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. [my emphasis]" (James Madison, 1789)

          And yet more (from the first legal treatise ever published in the US):

          "It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens. [my emphasis]" (Judge Zephaniah Swift, A System of the Law of the State of Connecticut, 1795)

          And yet more:

          "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity…Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us. [my emphasis]" (William Rawle, A View of the Constitution, 1829)

          And even more. The case of Lynch v. Clarke (and Lynch) centred around the question of whether a girl born in New York, to Irish parents (who were not citizens) was herself a US citizen and entitled to inherent the part of her fathers estate that was in the US. Justice Clarke wrote:

          "First. It is insisted by the defendants that the rule of the common law is to govern this case on the point of alienage. It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States [my emphasis]" (Lynch v. Clarke (and Lynch), 1844).

          In fact there is so much historical evidence that the 14th amendment reflected a well established common law principle of natural-born citizenship in the United States (regardless of parentage), which was itself modelled on the English common law principle, that I don't believe any reasonable person could dispute it.

          In case after case the Supreme Court ruled on the principle of natural born citizenship noting that the alienage of the parents is irrelevant to the citizenship if the offspring (as per the original English common law principle). The only historical exceptions I have found relate to those whose parents are on diplomatic mission (as per custom and practice), those who were members of a recognized native American tribe (due to the unique relationship between native American tribes and the US government), and those who were part of a hostile invading nation (as per custom and practice). And the second exception was superseded in 1924 by the Indian Citizenship Act, which ensured all native Americans were afforded the rights and protections of US citizenship.

          So natural born citizenship based on where you were born and not who your parents are, is a well established common law principle that dates back to medieval England, and became a well documented part of US jurisprudence as with many other principles of English common law which became the basis for the constitution.

          Is the principle of natural born citizenship beneficial and unproblematic in the 21st century? I believe that is a separate discussion to the constitutionality of the principle. On the subject of constitutionality, according to US jurisprudence, failing to afford children born in the United States the rights and protections of natural born citizens, would be unconstitutional. And I don't believe that is controversial. I think it's well established. I think it is almost certain that the Supreme Court would strike down any legislation that attempted to do so as unconstitutional (likely quoting some of the decision above to establish that precedent). Therefore regardless of the benefits or problems that may be associated with natural born citizenship, to strip those children of their citizenship, and discontinue the practice of that principle, I think it is clear that an amendment to the Constitution would almost certainly be required.

          1. rhamson profile image76
            rhamsonposted 15 months ago in reply to this

            You make a very good case but the determination of the 14th amendments intent is rather muddied basing it on British and common law understandings. If it were intended to apply to all born within the jurisdiction without the "subject to" wording I would have no problem even with your references to outside influence. ie. British law. However, when applied to intent which is always the harbinger of any argument the term "subject to" carries a special meaning into the vernacular of the argument. Black and white reality of the law as some would find simplistic at best and problematic at worst it deserves review as the intent of dropping the baby within the borders of the US for citizenship and family consideration is beyond the scope of the law as it was written. That is why "subject to" is the modifier in the case. Because the Supreme Court has decided one way or the other is not germane to the argument as it has interpreted it and judged it thusly without having a decision on the "Anchor Baby" reasoning currently employed by illegal immigrants.

            Subject to what we may ask? Location? We know the location can only mean the states within the jurisdiction of the US including whatever trust territories are included. Persons related to the confines of the jurisdiction? It is the same result. But law within those jurisdictions also includes what laws have been broken and by who. If the mother is here illegally she is in violation of the law and should be deported with as much expediency as the system can allow. As a fugitive is she allowed the protection any other law biding citizen is allowed? Only as far as human rights show necessary. So what of the baby? In essence we should keep the baby and send the mother away if the letter of the law is to be followed. But what a horrendous thing to do let alone the liabilities of raising the child within the system adrift from their parents. So because of the baby the law is subverted to grant the baby citizenship and overlook the illegal act of the parents effectively breaking the law to enforce the law.

            Your interpretation of the "subject to" phrasing overlooks the logic of the violation. Separating the two mutually inclusive actors in the case to adhere to a law otherwise created to fix something 150 years ago and then discounting it to excuse the criminal is why we are at this juncture. If anything this needs to be reviewed for clarity and determination rather than left to interpretation that condones criminal behavior.

            Once again I am not saying the child should receive no consideration because they have been haplessly thrown into this situation but here comes that intent again. In most cases it is the intent of the parents to confound the law with an emotional solution sans a legal one. The legal solution should be as it was intended of waiting to enter the country legally and have a child legally within the confines of the US. The slaves were brought here against their will and when freed were told they and their offspring had no claim to citizenship and not the other way around by coming here of their own volition to have a baby on US soil for it to be a US citizen. That was the intent of the law.

            1. Don W profile image83
              Don Wposted 15 months ago in reply to this

              I take your point that the amendment has not been considered by the Supreme Court in relation to the the concept of "anchor babies" which can be considered a novel circumstance. That might serve as justification for the Supreme Court to hear a case, but the Court's existing interpretation is unequivocal and I don't see how the Court would be able to arrive at a different interpretation.

              I'm aware of the argument about partial, territorial jurisdiction vs. complete, political jurisdiction. The idea being that foreign nationals may be within jurisdiction of the US, but not subject to it. So for example a tourist who visits the US is within US jurisdiction (they have to follow the laws of the land, and can be prosecuted if they break those laws) but are not subject to US jurisdiction (they cannot be drafted to serve in the armed forces, cannot be called to serve on a jury, cannot be prosecuted for treason etc). And that makes sense in isolation. The problem is that when you apply that reasoning to the constitution, it changes the intended meaning of the 14th amendment. That interpretation would mean that only children born in the US, and whose parents are US citizens, could be deemed to have US citizenship. Historical records tell us that is not the intended meaning or purpose of the 14th amendment.

              As you rightly say, the well documented intention of the 14th amendment was to ensure African Americans were conferred citizenship. In that respect the amendment effectively reversed the Dred Scott v. Sandford decision. There was already legislation to this effect (Civil Rights Act of 1866) but the concern was that this could be repealed by a later Congress. So the framers of the 14th amendment intended to enshrine the principle within the constitution. The interpretation outlined above effectively removes the ability of the 14th amendment to fulfil its purpose. It would mean that African Americans born within the United States, but whose parents were not born within the United States and therefore not citizens (e.g. those brought over on slave ships) could not be conferred citizenship. That would be contrary to the purpose of the amendment. 

              So the Supreme Court held that the nationality (and citizenship status) of the parents has no bearing on a child's citizenship, as in United States v. Wong Kim Ark, 1898. The parents in this case were "domiciled" in the United States. They were not citizens of the United States. According to the alternative interpretation (which was expressed in dissent) the parents were not subject to the jurisdiction of the United States because technically they still held political allegiance to the Emperor of China. However the majority interpreted "subject to the jurisdiction thereof" to mean being required to obey US laws. They took the view that the Citizenship Clause of the 14th amendment had to be considered in light of the existing common law, jurisprudence (birthright citizenship was historically the dominant legal principle in relation to citizenship in the US), and the intention of the 14th amendment (which would be circumvented by any other interpretation). And in my opinion, the decision reached by the 6 - 2 majority in this case makes the most sense in relation to those considerations.

              Bringing this into the modern era, I can't see how the legality of the parents presence in the country changes any of the arguments that were already made in US v. Wong Kim Ark. To confirm that, in Plyler v. Doe (1982) the Court specifically rejected the idea that illegal immigrants to the United States are are not "subject to the jurisdiction" of the United States within the meaning of the Fourteenth Amendment. So I can't see how the existing interpretation of jurisdiction is by novel concepts like "anchor babies" etc.

              If the issue is that such practices have made the meaning of the 14th amendment no longer beneficial, fine, but that is for Congress to address not the Supreme Court. The Court's role is to determine whether measures taken by Congress to address such issues, are constitutional, not change the meaning of the Constitution to accommodate different political and cultural circumstances.

              1. rhamson profile image76
                rhamsonposted 15 months ago in reply to this

                I agree with your arguments and that Congress needs to address the issue of illegal Immigrant parents allowing to go untouched because of their offspring's rights to citizenship. Leaving a re-evaluation of the current law the way it is written up to the Supreme Court may be disastrous as we have seen with other laws grossly misinterpreted. Fuzziness is a dangerous option to turn over to them especially with their penchant for biased judgments'.

                The real crux of the matter will be who and how many will be allowed to stay?

                I also want to thank you for an intelligent conversation devoid of name calling and assumptions that normally go on around here.

                1. Don W profile image83
                  Don Wposted 15 months ago in reply to this

                  Yes the issue needs to be addressed, however the proposal to simply strip potentially millions of children of US citizenship, is a serious cause for concern. Immigration problem or not, I genuinely believe the American public would not tolerate the site of parents and children being dragged from their homes en masse by government officials, if that is what is being proposed. I think people would rightly call for a better solution than that. It's the government's job (with input from all the relevant stakeholders, including the public) to work that solution out.

                  Very interesting and informative, and likewise, thanks for keeping it civil.

                  1. rhamson profile image76
                    rhamsonposted 15 months ago in reply to this

                    I don't think striping the children of their citizenship is the most moral way of dealing with this. I still think in order to show consequences for the actions of their parents they have to go home. The children could apply for citizenship when they are eighteen or twenty and re-enter the country under a modified passport. To continue as a citizen some conditions should be met. One being a language, cultural and government course of study completed with a plan for work or further education. Once again it is the consequences for the actions that must be paid to make it fair for all who wish to come here.

      2. GA Anderson profile image87
        GA Andersonposted 15 months ago in reply to this

        Like Kathryn's "logically,"  our "Seems clearly," are obviously different perspectives.

        Your clear explanation of the children is only clear if you interpret jurisdiction in an `authority' reference only, and if you do grammar charades with the sentence structure.

        I don't think it is clear at all. I lean towards the `allegiance' framework interpretation.

        We could throw authoritative links at each other all day, but it would be a sandlot effort compared to the pro-ball talents that have been debating this issue from its inception.

        I was surprised at your use of the Elk v. Wilkins case as support for your perspective. So much so that I was driven to check other sources offering explanations, critiques, and documentation.

        I came away agreeing with the linked Backgrounder and puzzled that you read the decision, and the court's statements as you did.

        Here is a snippet from that court's definition;
        The Court defined the jurisdictional requirement of the Citizenship Clause as requiring a person 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.”

        Seems clear to me that isn't a court endorsement of the `authority' definition of jurisdiction.

        The other aspects of the case; tribal nations as foreign nations, nation within a nation, etc. also appear to me to bolster the logic of the `allegiance' side of the debate.

        In searching for a source of the inclusion of the word domain, relative to your use of it; "... born within the domain of that government..." I discovered there is more in the Elk v. Wilson case that is directly related to the correct interpretation of the "jurisdiction" debate.

        In Chief Justice Taney's statement to the plaintiff the following snippet made clear his perception of "jurisdiction;"
        "... The evident meaning of these last words is 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..."
        (for context: skip down to page 112 U.S. 102)

        But this find did not help me understand the background support you attach to your use of "... born within the domain of that government..." Care to expand on the source for the domain qualifier?

        Pulling another one from the Backgrounder, an earlier court wrote this about jurisdiction;
        "...“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”:

        This court offering also seems to contradict your interpretation.

        I can see why there is debate on this unsettled issue, but my brief excursion into birthright citizenship leaves me the impression that this question has an obvious interpretation that includes the `allegiance' qualifier, (not the `domain` one), and could have been easily answered with statutory legislation - not needing a Constitutional amendment.

        Logically it seems clear to me that I am right and you are wrong. Na nanah nahnah!

        GA

        1. rhamson profile image76
          rhamsonposted 15 months ago in reply to this

          If we wish to make it abundantly clear and by following the letter of the law we should seize the child at birth or discovery and deport the parents. Instead of adjusting the law in a humane manor to consider the rights and feelings of the offending parent, we should give them a choice of leaving the child here and going back to their country or taking the child with them. Both staying as a result due to consideration should not be incumbent on the US but a decision based on what is legal while holding onto their parental rights. If we wish to leave it up to interpretation we have the current mess as it is. If we follow the letter of the law then we will need to raise a whole lot of orphans.

          1. Kathryn L Hill profile image85
            Kathryn L Hillposted 15 months ago in reply to this

            … naturally, they should go home with their parents.

            Its just like the insurance issue: No insurance? Well we here in the ER will treat you anyway.

            We are just too nice.
            Unfortunately, niceness sets precedence and is used against us.

            Road to hell is paved with good intentions ...
            isn't it?

          2. GA Anderson profile image87
            GA Andersonposted 15 months ago in reply to this

            There seems to be some argument that we don't really have a "letter of the law" to follow.

            We have the 14th Amendment and its attached controversy and debate, and then we have a government policy that just seemed to evolve into birthright citizenship. No laws codifying the amendment's intent, and no statutes clarifying the framework of our policy.

            Even though I believe the 2nd requirement for citizenship involving jurisdiction that implies the requirement of allegiance to our nation is the correct interpretation, I can see the validity of the birthright by soil challenge. I just disagree with it.

            GA

            1. rhamson profile image76
              rhamsonposted 15 months ago in reply to this

              "we have a government policy that just seemed to evolve into birthright citizenship"

              Therein lies the problem. The political solution is to claim a legal stance and then apply a moral solution while pandering to a crowd for support. Is it important to have clarity at that point in lieu of the chaos that surrounds it? Not if you are looking for votes. You have sanctuary cities that harbor the illegal immigrants in spite of the laws to deport them. Is it such an altruistic act in which these cities are participating? According to varied sources there is a mixture of reasoning's that stretch from lack of funding to hold prisoners that are illegal immigrants until ICE can pick them up to not offending the illegal immigrants and their relatives to stack support in elections.

              The bottom line is that the law was enacted to serve as a platform for the freed slaves after the Civil War to have a definition of their citizenship and rights by it. None of them came here to have a baby to become a US citizen. The law as it is currently being interpreted and abused in essence breaks another law to enforce it and no one wants to change or clarify it because of their own prejudices. Even with a determination or clarification I fear the 11 million already here illegally will be retroactively granted legal status. At that time what other laws can we subvert and make legal just by ignoring them?

        2. Don W profile image83
          Don Wposted 15 months ago in reply to this

          Just to clarify, it's not my interpretation of "jurisdiction", it's what I believe is the the Supreme Court's interpretation. I am trying to outline the Court's reasoning for that interpretation as I see it. But I wasn't really referencing the "jurisdiction" debate in my first comment to be honest. I was using Court opinions like Elk Vs. Wilkins to outline the two different categories of children born in the United States who are not subject to US jurisdiction: 1) children whose parents are subjects of a foreign government and who are born within the domain of that government and 2) children whose parents are ambassadors, diplomats etc for a foreign nation. The use of "domain" comes straight from Elk Vs. Wilkins, as I previously quoted:

          '[Native Americans] are no more "born in the United States and subject to the jurisdiction thereof" than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations' [my emphasis] (Elk v. Wilkins, 1884)

          From this comment we can derive the two categories above, which seem to have been applied by the Court. In the case of Elk v. Wilkins, citizenship was not conferred because the person in question fell into the first category as his parents were deemed to be subjects of an "alien nation" (Elk v. Wilkins, 1884) and, although he was born within the territory of the United States, he was also born within the the domain of the Winnebago Tribe. But we know the case of native Americans was considered a unique situation, because the Court later said so in States v. Wong Kim Ark. And we know the Court's understanding of Elk Vs. Wilkins was accurate because the same person, Justice Gray, wrote the opinions for both cases:

          "The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian [Asian] descent not in the diplomatic service of a foreign country[my emphasis]. (United States v. Wong Kim Ark, 1898)

          In other words, just because the unique situation with native Americans means they are not subject to US jurisdiction, that does not mean children born in the US of foreign parents are not subject to US jurisdiction. The only time that is the case is if they are children of foreign diplomats.

          And this is where the importance of the "domain" qualifier comes in. It is what differentiates John Elk from other children of foreign parents born within the United States. We see that even clearer if we compare the cases of Wong Kim Ark (who was conferred citizenship) and John Elk (who was not). Both were born in the United States, neither had parents who were diplomats, both had parents who were subjects of a "foreign" government. The one main difference in their circumstances is that John Elk was deemed to have been born within the domain of that government (the Winnebago Tribe) and Wong Kim Ark was not.

          So the main point I was making is that, like Wong Kim Ark, the children of immigrants (illegal or otherwise) do not fall into either of the above categories of people not subject to US jurisdiction, so based on the constitution as it is, must be conferred citizenship. This aligns with the reasoning the Court used in US vs Wong Kim Ark and has used since (most recently in 1982).

          Ultimately I think the issue can only be resolved in one of two different ways. Either Congress enact legislation that addresses the issue. I think it's be very likely that would be challenged in court and, depending on the exact nature of it, might be struck down by the Court. The other way is for Congress to introduce an amendment to the constitution that addresses the issue. Either way the onus is on Congress to act, not the Supreme Court. This is an issue for the legislative branch, not the judicial branch.

          1. GA Anderson profile image87
            GA Andersonposted 15 months ago in reply to this

            As with many other examples of life, this discussion illustrates why Baskin-Robbins has been around so long.

            Greater and more knowledgeable minds than mine have weighed in on this question... and the debate continues. So I don't feel too out of place disagreeing with your interpretation.

            I spotted the use of domain in the Elk case, but have not come across it as a qualifier in any other statements... yet. My interpretation of its importance  gives it much less weight as a deciding factor than you obviously do.

            Considering various political and constitutional arguments, and the various court decisions, (which it has been shown can be cherry-picked for supporting statements for either side), my impression is that it is the phrase about jurisdiction that is the character of the amendment.

            Although the Wong Kim Ark case is more supportive of your position in the majority, (the minority dissent saw things differently), I think it was too specific to a particular set of circumstances to be viewed as a court determination of the correct interpretation for the majority of cases, especially when considered with other cases and court statements that I think support the opposite interpretation.

            I would bet that some researcher somewhere has tallied the various court standings. It would be interesting to see that scorecard. But from my perspective, the cases and supporting presentation in the originally linked Backgrounder show that `Birthright Citizenship by soil' is an incorrect application of the amendment.

            So far, following the Backrounder's presented cases, and others found through their references, the Wong case is the least supportive of my position, but is also the least applicable to the general question.

            And referencing your contention that domain makes a deciding difference. I don't attach as much importance to the distinction. I found several instances where court statements supportive of my contention spoke of dominion in the light that being out of a foreign nation's dominion did not reduce that nation's claim to the allegiance, and rights of citizenship from their citizens.

            I am certain to be doing further reading on this, but for now I think both sides have a legitimate base for their positions, but am strongly inclined to believe that birthright by soil, (yeah, I know the correct term is jus soli), is an incorrect determination that first came into being because the issue of "Anchor Babies" was not one of major magnitude, (nor even political consideration), in our early history, and was thus formulated by the surface interpretation of the "jurisdiction" phrase.

            I also think the interpretation debate will have to be directly addressed either by  legislation or the courts to put this matter to bed.

            ps. I still think I am more right than you are, but am no longer confident enough to call you wrong. So no "Na nanah nahnah!" this time.


            GA

  2. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    "Benefits. Most benefits Americans would regard as “welfare” are not accessible to illegal immigrants. However, illegal immigrants can obtain welfare benefits such as Medicaid and food stamps on behalf of their U.S.-born children. Many of the welfare costs associated with illegal immigration, therefore, are due to the current birthright citizenship policy. Put another way, greater efforts at barring illegal aliens from federal welfare programs will not significantly reduce costs because their citizen children can continue to access the benefits. Nationwide, 40 percent of illegal alien-headed households receive some type of welfare. In some states, the rate is higher: in New York, 49 percent receive welfare; in California, the rate is 48 percent; in Texas, it is 44 percent; and in Georgia, 42 percent of illegal alien-headed households receive welfare.5 Only 19 percent of households headed by native-born citizens make use of a major welfare program."

                                                  VERSUS

    "The overwhelming majority of the world’s countries do not offer automatic citizenship to everyone born within their borders. Over the past few decades, many countries that once did so — including Australia, Ireland, India, New Zealand, the United Kingdom, Malta, and the Dominican Republic — have repealed those policies. Other countries are considering changes."

    "No European country grants automatic citizenship to children of illegal aliens."

    "The global trend is moving away from automatic birthright citizenship as many countries that once had such policies have ended them in recent decades."

    "14th Amendment history seems to indicate that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States."

    http://www.cis.org/birthright-citizenship
    (perfectly fine backgrounder, if you ask me.)

  3. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    "14th Amendment history SEEMS TO? indicate that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States."

    14th Amendment history (edit) INDICATES that the Citizenship Clause was never intended to benefit illegal aliens nor legal foreign visitors temporarily present in the United States OR THEIR BABIES.

    Q. At what point do babies get to be citizens?

                               A. Their parents must be citizens FIRST.

    Is it so hard for the left and the corrupt right to follow the established precepts of the Constitution?

    1. GA Anderson profile image87
      GA Andersonposted 15 months ago in reply to this

      No Kathryn, you are wrong. At this point, the question of interpretation still remains unsettled, so the precepts you refer to are yet to be determined. Our Congress has the power, (I believe), to establish an interpretation. Even the court's have indicated such, and also stated jurists see this as an issue that should be decided by the people's legislation instead of the courts.

      But, politicians being what they are have chosen to let our government quietly slide into an adopted policy of `soil` birthright. So no, a baby's parents don't have to be citizens. And it is not the Constitution's, or the Court's fault.

      GA

      1. Kathryn L Hill profile image85
        Kathryn L Hillposted 15 months ago in reply to this

        I am not wrong.
          Logically, jurisdiction only applies to citizens. The baby of an illegal alien is not automatically a citizen. Where is this stipulated? exactly? It doesn't even make sense.  A "natural born citizen" is born to CITIZENS only. The child and his parents would have to apply and go through the steps to become citizens at some point. What prevents them from doing so?
        The threat of deportation?
        I don't know the laws.

        1. GA Anderson profile image87
          GA Andersonposted 15 months ago in reply to this

          As shown by this thread, Your "logically" and the "logically" of others, and the Court's "logically" are more likely to be at odds than agreement.

          If the interpretation that "jurisdiction" was defined to be subject to our laws and arrest for breaking them, then the current standing for Anchor Babies is legal and legit.

          My impression is that the conservative interpretation of "...jurisdiction of the United States...", as applied to the "owes allegiance" criteria will be the one the Court ends up deciding if our Congress does not address it.

          GA

  4. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    … to comply with the law?
    only CITIZENS are subject to the jurisdiction of the United States.

  5. ahorseback profile image46
    ahorsebackposted 15 months ago

    Could always finish building the wall  and have the illegal babies born here pay for it , of course they would have to borrow the money from their parents !  ..........................come on people , that's funny!

  6. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    Just heard on John and Ken talk radio: The fourteenth amendment was made for the babies of slaves!  John said we need another amendment to prevent what is happening, (welfare benefits granted to illegal alien babies,) (usually Mexican and Chinese) but he said, nowadays it is impossible to make new amendments.

    "The businesses, known as “maternity hotels” or “birthing centers,” present a headache for local government and law enforcement because it is not necessarily illegal for foreign nationals to give birth in the U.S. Many agencies openly advertise services offering assistance in getting newborns a U.S. passport and extolling the benefits that come with American citizenship, including public education and immigration benefits for parents."

    "Taiwanese, Korean and Turkish mothers are also known to engage in birth tourism, but the practice has become particularly popular in recent years with the newly wealthy Chinese middle class."
    http://www.latimes.com/local/lanow/la-m … story.html

  7. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    Section 1. "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
    Naturalized:
    1 grant citizenship to, make a citizen, enfranchise, give a passport to.

    The baby of an illegal alien is not automatically under the jurisdiction of the US government.

    A slave was not an illegal alien.

  8. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    The letter of the law should not be mangled to suit whatever agenda some government official deems
    currently appropriate for his own self-chosen cause.

  9. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    … argue away
    til' a better day.
    Thats the way
    The palm trees sway.
    Thoughts of gold,
    Words of mold.
    Til better shown,
    Gold thoughts I own.

  10. ahorseback profile image46
    ahorsebackposted 15 months ago

    I suggest anyone who is for allowing  the "anchor babies "issue   to remain and flourish take a look at  reproductive rates for Hispanics as compared to other minorities  , already in America .    Take a look  at several  stats ! Kind of a wake up call .

    1. colorfulone profile image87
      colorfuloneposted 15 months ago in reply to this

      I just read about the Cloward–Piven strategy a couple of days ago, which is basically a strategy to literally break the welfare and national systems. 

      It was worth looking up.  0-0

  11. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    Send it to Obama.

  12. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    <"If our privacy is the reason for our dilemma then I believe we are doomed to just accept the consequences as it erodes our way of life.">


    Why should we now enforce and create new laws?
    To preserve the country.
    Why should people comply with the new laws ?
    To preserve the country.
    It would be a win win, if they could just see it that way.
    But, will they????????

    1. rhamson profile image76
      rhamsonposted 15 months ago in reply to this

      We used to be a nation united in our principles and needs for all. The years have eroded that ethic to the rights of the individual over the good of the whole. We now are told to celebrate our differences as opposed to our similarities. It is now the needs of the individual over the needs of the many. How does that compare to our little insurrection with England. Could we have won our independence as a scattered bunch of individuals looking out for our own interests?

  13. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    we have become way too lax, nonchalant and easy going.


    Nonchalant:
    Calm, composed, unconcerned, cool, [calm, cool, and collected], cool as a cucumber; indifferent, blasé, dispassionate, apathetic, casual, insouciant; laid-back.

  14. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    Its now an urgent matter, however.

  15. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    To clean a very dirty room you have to start somewhere.

  16. Kathryn L Hill profile image85
    Kathryn L Hillposted 15 months ago

    Right?

 
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