Patterico's Pontifications

6/13/2010

Birthright Citizenship

Filed under: Immigration — DRJ @ 5:17 pm



[Guest post by DRJ]

Via George Will back in March 2010, Law Professor Lino Graglia on birthright citizenship:

“Sen. Lyman Trumbull of Illinois was, Graglia writes, one of two “principal authors of the citizenship clauses in 1866 act and the 14th Amendment.” He said that “subject to the jurisdiction of the United States” meant subject to its “complete” jurisdiction, meaning “not owing allegiance to anybody else.” Hence children whose Indian parents had tribal allegiances were excluded from birthright citizenship.

Appropriately, in 1884 the Supreme Court held that children born to Indian parents were not born “subject to” U.S. jurisdiction because, among other reasons, the person so born could not change his status by his “own will without the action or assent of the United States.” And “no one can become a citizen of a nation without its consent.” Graglia says this decision “seemed to establish” that U.S. citizenship is “a consensual relation, requiring the consent of the United States.” So: “This would clearly settle the question of birthright citizenship for children of illegal aliens. There cannot be a more total or forceful denial of consent to a person’s citizenship than to make the source of that person’s presence in the nation illegal.”

I doubt it will ever be recognized but I think Graglia is right about children of illegal immigrants.

H/T Carlos.

–DRJ

37 Responses to “Birthright Citizenship”

  1. “Georgia Representative Nathan Deal (yes, THAT Congressman Deal) introduced a bill last year in the House, HR 1868, ‘To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth’…”
    http://www.obamaconspiracy.org/2010/02/citizenship-bill-before-congress/

    Carlos (ebb160)

  2. You’ve gone a bit far afield, Carlos. Here’s an ABC article that discusses the pros and cons more objectively.

    DRJ (d43dcd)

  3. The Indian thing ended in 1925. I don’t know what’s more shameful, the genocide or the denial that native Americans are not Americans.

    Give me a minute to find the other case.

    nk (db4a41)

  4. And there is this…
    http://www.law.upenn.edu/journals/conlaw/articles/volume11/issue5/Smith11U.Pa.J.Const.L.1329(2009).pdf

    Someday this will be resolved, one way or the other; because, like Mother Nature, the Law abhores a vacumn also.

    Carlos (ebb160)

  5. There’s no vacuum. The law has been decided. U.S. vs. Wong Kim Ark: http://supreme.justia.com/us/169/649/case.html

    nk (db4a41)

  6. And there is this, which the authors in #5 contend has never been over-ruled…
    http://scholar.google.com/scholar_case?case=15118083235858813035&q=elk+v.+wilkins&hl=en&as_sdt=2002&as_vis=1

    Carlos (ebb160)

  7. Wong did not address “illegal aliens”, but resident aliens.

    Carlos (ebb160)

  8. Wong did not give a s**t about the parents. Just where the kid was born.

    nk (db4a41)

  9. Wong, from #5 above, in part…

    “…Wong Kim Ark deals explicitly only with children of
    legally admitted aliens. The undocumented alien population then
    was much smaller and may well not have seemed significant; at any rate, the Court gave no attention to the children of such aliens in that
    decision or any later one. Acceptance of the Wong Kim Ark precedent
    therefore cannot be said to involve explicit acceptance of jus soli citizenship
    for aliens not legally present in the United States, either by
    the Court or the American public…”

    Carlos (ebb160)

  10. nk makes farting sound to Carlos and his sources

    It ain’t going to happen. As a matter of fact, unless the child is born inside a foreign embassy, even the child of a diplomat can claim American citizenship.

    nk (db4a41)

  11. Do you guys understand how dangerous this Gaga (sic) theory is? What if we got a Congress that decided that we had more than enough white people in America and children born of European-descended parents were not citizens?

    nk (db4a41)

  12. Carlos – Thanks for bringing some information to the table rather than just reactionary blather.

    daleyrocks (1d0d98)

  13. Well, I guess those of us who are not White will stand on the pier waving a fond farewell to you.

    Yoda (ebb160)

  14. the indians were immigrants too, so they have to be thrown out also….

    redc1c4 (fb8750)

  15. “What if we got a Congress that decided that we had more than enough white people in America and children born of European-descended parents were not citizens?”

    What if we got a Congress that decided that children who were born on Ruesdays, Thursdays and Saturdays were not citizens?

    Grow up.

    daleyrocks (1d0d98)

  16. since the presence of the parents, or at least the mother is an illegal act, and yet the birth of a child (with the concomitant act of giving it American citizenship) gives the mother a benefit, or, more correctly, lots of them, thus allowing them to profit from an illegal act, which i think we can all agree is an anathema to a law abiding society.

    however, to placate the nk’s of the world, i have come up with a simple solution that addresses the problem: take a DNA sample and a retinal scan of the kid, and send it home with its birth mother, and then, when it turns eighteen, it can choose between the joyous, rich and vibrant culture of his native culture, or the bankrupt and greedy pointlessness of life here in the US.

    redc1c4 (fb8750)

  17. nk,

    I can understand the view that birthright citizenship is a good thing and should be continued, but to me that’s separate from whether there is a legal question involved.

    DRJ (d43dcd)

  18. Typical of nk’s rhetoric to label any discussion of the our Constitution or its historical interpretation as “shameful”.

    I guess it beats actually having to think of an argument.

    SPQR (26be8b)

  19. SPQR,

    If you don’t think that American Indians needing to be naturalized until 1925 is shameful than you can stop talking to me. I will ignore your comments and you can ignore mine.

    nk (db4a41)

  20. *then*

    nk (db4a41)

  21. part of the problem was negotiating treaties with them: sovereign nations negotiate treaties, but citizens of a country don’t negotiate with their own government.

    so it seems to me that once they became citizens, the treaties became null and void. that would have all sorts of interesting consequences…..

    redc1c4 (fb8750)

  22. I guess I might as well ignore your comments, nk, since you seem to enjoy outrageous and offensive rhetoric instead of coherent argument.

    Hmmm, nah.

    SPQR (26be8b)

  23. “If you don’t think that American Indians needing to be naturalized until 1925 is shameful than you can stop talking to me.”

    nk – Your comment was written in the present tense. If you want yo live in the past, fine, but you can’t have it both ways.

    daleyrocks (1d0d98)

  24. I think the problem here is that people such as nk have a knee jerk reaction to debates about illegal immigration, automatically seeing it as – illegal immigration debate=racist xenophobes on parade – when there is no such evidence present. That generates the intellectually dishonest flights of fancy we have seen on these threads. The U.S. has illegal immigrants from a plethora of nations and many of fully support legal immigration. Dishonest attacks of racism and profiling are the tactics of the weak who have no other arguments.

    daleyrocks (1d0d98)

  25. part of the problem was negotiating treaties with them: sovereign nations negotiate treaties, but citizens of a country don’t negotiate with their own government.

    so it seems to me that once they became citizens, the treaties became null and void. that would have all sorts of interesting consequences…..

    Comment by redc1c4 — 6/13/2010 @ 7:19 pm

    Yeah, once they got off the reservation and had their guts blown off in Normandy and Iwo Jima they were 100% American citizens. And their right to their little patch of land we left them escheated to the Bureau of Indian Affairs.

    nk (db4a41)

  26. so we can close all the reservations? that will certainly eliminate a lot of casinos here in SoCal…

    [note: fished from spam filter. –Stashiu]

    redc1c4 (fb8750)

  27. The politics of victimhood . . . always tedious.

    Icy Texan (2196ff)

  28. From “The U.S. Constitution Online”:

    “The 14th was designed to ensure that all former slaves were granted automatic United States citizenship, and that they would have all the rights and privileges as any other citizen.”

    — This could be one of those “intent vs. plain language” debates. Unfortunately, the words (“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”) say what they say.

    Icy Texan (2196ff)

  29. Mr. Gaga (sic) is an idiot if he thinks consent extends to being subject to the jurisdiction of a government. I think his ideas come from soft-core pornography by John Norman: “Within the reach of his sword every man is king.”

    nk (db4a41)

  30. In any case, I want to dedicate a song to DRJ. http://www.youtube.com/watch?v=16GxYgkuJDY&feature=related

    nk (db4a41)

  31. “I doubt it will ever be recognized but I think Graglia is right about children of illegal immigrants.”

    True. The Constitution is “living” when it solves a liberal dilemma but “dead as a doornail” when it comes to the Second Amendment, for instance.

    Patricia (160852)

  32. I wouldn’t put much faith in SC civil rights precedents from the CruikshankPlessy era.

    The idea of the 14th Amendment’s citizenship language was to prevent states from ignoring the citizenship rights of freed slaves. By 1900, that was pretty much as dead a letter as the “privileges or immunities” clause is today.

    Kevin Murphy (5ae73e)

  33. DRJ

    Couldn’t disagree with this more.

    Now, Will does notice correctly that there were no restrictions on immigration at the time of the founding. But he engages in precisely the kind of activism I deplore when he then uses that as an excuse to cry to correct the founders “oversight.”

    Further, Lyman Trumbull was not one of the major founders. You would do better looking to Thaddeus Stevens or at least Bingham.

    Finally, this logic is downright dangerous.

    So anyone who “owes” any allegiance to a foreign power shall not be a citizen at birth?

    So a Catholic, for instance, who owes their allegiance to the pope and thus of their children are not citizens?

    In U.S. v. Kim Wong Ark, it was asserted that the respondant was a subject of the Emperor of China. Suppose that Emperor asserted he was his sovereign by birth alone, despite the fact he was born in America, and is as patriotic as you or I? Suddenly he is not a citizen, due to the unilateral action of the sovereign of China?

    Indeed, according to some birthers, by that approach Barrack Obama is not a citizen of the United States, because Kenya asserts that he is a naturally born citizen of their country, due to his father’s heritage.

    Okay, I’ll concede that last one is a decent argument for the anti-citizenship arguments. (and yes, I am only joking. I am not a birther. But I very much sympathize with the desire to see Obama disqualified to be president.)

    I think there is a cogent argument to be made that the framers didn’t think about the situation we found ourselves in. Fair enough. But that is no excuse to change the constitution itself.

    I mean look at what we are reduced to. Will imagines the word “complete” into a sentence when it wasn’t there. If they meant “complete” why didn’t they WRITE “complete?” And further, you get this ridiculous line from Will “the person so born could not change his status by his ‘own will without the action or assent of the United States.’” But in fact, the 14th Amendment is specifically written to avoid the need for any action or assent. Just be born under the right circumstances and its automatic. That is true even under Will’s reading—we are just disagreeing about what circumstances must be present.

    One must remember the founders were overturning a supreme court decision when they wrote this: Dredd Scott v. Sandford. They were not interested in playing these games any more. Maybe in doing so, they wrote unwisely. Myself, I disagree. I would rather us instead enforce the border, instead of declaring a large swath of the people in this country to be people without a country.

    Of course, the courts have been less than consistent in this. In the Kim Ark case, they noted that even under Colonial rule, those born in the colonies were British subjects. But by comparison, my in-laws, who were born before the Philippines were made independent, were not made American citizens at birth due to another dangerous concept—the idea that the constitutional rights of persons can be frittered away by treaty, an outcome blessed by the supreme court.

    Aaron Worthing (e7d72e)

  34. What Aaron said. If the framers meant “complete” or “exclusive,” they wouldacouldashoulda said so. instead, we’re stuck with what they DID say. Either illegals and their spawn are subject to the jurisdiction of the US or they are not. If they are, their anchor babies are citizens. If they’re not, then we have diplomatic immunity for all illegal aliens. Pick your poison.

    Xrlq (1cd5bb)

  35. I think it says a lot that the media is attempting, as usual, to only tell people their own lying side to it:

    Ariz. lawmaker takes aim at automatic citizenship

    The money quote, making it clear their stance:
    Legal scholars laugh out loud at Republican state Sen. Russell Pearce’s proposal and warn that it would be blatantly unconstitutional, since the 14th Amendment guarantees citizenship to anyone born in the U.S.

    Rather than presenting both sides to the argument, which clearly exist, they paint anyone who disagrees with it as “laughably out of touch with the law”.

    Whenever the media do this, it’s rather clear they’re selling a bill of goods.

    IgotBupkis, President, United Anarchist Society (79d71d)

  36. leticia olalia morales of 15501 pasadena ave #8 tustin ca 92780 submitted fake documents and paid 5000 dollars to obtain a US tourist visa. she also submitted fake employment records to obtain a work visa. she is now applying for citizenship. her contact at the embassy was man named sandman.

    anon (cedf04)


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