14th Amendment / Jurisdiction Page 2
That the 14th Amendment, like the Civil Rights Act, would extend in a universal manner over all children born to domiciled foreigners would have been viewed as an unavoidable consequence of extending the citizenship privilege to those of African descent. If you felt racist toward them, you would feel no differently toward those from other non-Anglo-Saxon continents and cultures. So as long as racism was not being allowed to block citizenship from the Negroes, it would have definitely seemed unfair and un-American to have denied citizenship to American children of foreigners from Asia, or Latin America, or wherever.
That’s how they saw it, and that’s why they voted for it. But it’s an erroneous presumption to think that the 14th Amendment, or any law, was needed to explain or officially extend citizenship to children of natural born citizens since they too were natural born citizens by birth to citizens.
“Senator Trumbull: “I have already said in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States and that the bill now under consideration is but a declaratory of what the law now is”
He made the natural error of thinking in concrete terms (born “ON” US soil -the land/location being determinative, rather than born “OF”…) while failing to grasp the seemingly abstract truth that birth is something not dependent on anything (soil, sovereignty, borders) except the body of the mother, and it is through her, and the father, that a child is brought into this dimension. It is by them and through them that life itself is passed in the physical realm, along with citizenship in the political realm.
His other tiny, tiny error was using the word “every” since there are exceptions that make-up maybe .01% of American births. Those involve birth to transient foreigners and foreign diplomat.
To make the assumption that the 14th Amendment’s statement about jurisdiction is a totally unnecessary statement of the obvious (government possessing supreme power over all residents) is a ridiculous denigration of the intelligence of its authors. Their inclusion of the jurisdiction requirement has a very real meaning and it is NOT that the government has the physical power and legal authority to make everybody do what it dictates. The hair you keep failing to split is the difference between being UNDER subjection (the government’s martial power) and being IN subjection (citizen’s submission to their obligation of obedience). Given that everyone is subject/vulnerable to government power, whether we be ruled democratically or by a dictator, it is a stupid assumption that that obvious fact needs to be legally stated, even in an amendment to the Constitution. Such a statement had, and has, no need to ever be stated because it is an obvious “given”. Amendments aren’t worded to state the obvious.
A citizen’s obligation of obedience comes with being a citizen, or a legal resident alien. Citizens of foreign governments who work for their government in the US, and foreign visitors have no citizen’s obligation of obedience to all the dictates of US law and are not in subjection to US political jurisdiction.
The Americans at the Alamo were not in subjection to Mexican jurisdiction, they were in rebellion to it. The word jurisdiction does not have only one single usage that is written in stone. AN
The chief justice in Wong Kim Ark first laid down the general principle: ‘The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of NO LIMITATION not imposed by itself. ” He failed to elaborate on the principle of a nation imposing limitations on itself. The nation with representative government can self-govern, and self-limit, which is what the Constitution and Bill of Rights is all about. In the following paragraph he writes of implied limitations that flow from the will of the people. This relates to the limitations of US jurisdiction and subjection to it as mentioned in the 14th Amendment. To claim that the 14thAmendment speaks of an absolute sovereignty over all persons within its borders, and that therefore anyone born within its borders is a citizen, is to misunderstand the principle of national self-limitation, as well as obligations of citizens and legal residents and whether or not they are subject, (or in subjection to), the jurisdiction that those obligations require that they be subject to.
“All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be
either express or IMPLIED. In the latter case, it is less determinate, exposed more to the uncertainties of
construction; but, if understood, not less obligatory.’ 7 Cranch, 136
He exposes the philosophical fog of governance by rules that are not written, but merely implied. That idea alone should be sufficient to give people pause as to what is the basis for rules that exist but aren’t codified, such as the natural inheritance of citizenship by children born of citizens. That is something not codified because it need not be because it is an implied “given”. It doesn’t depend on anything found in the Constitution or legislated statute. As is the right to vote, which has always been “a given” in regard to “free white men”.AN
CITIZENSHIP BY LAW / CIVIL RIGHTS ACT 1866 / THE 14TH AMENDMENT
Who is not subject to any foreign power? Answer: Anyone who chooses to live their life in another foreign country. Some point out how no foreign government has any power over anyone who is not within their borders and thereby under their jurisdiction. Well, that applies to their own citizens when they pack-up and abandon their native country to live in a better place and be part of a new society. Those foreigners who become permanent legal residents here are no longer subject to the jurisdiction of their native country, though the country might disagree when it comes to conscripting young men to serve in the military. That might be considered a requirement of citizenship responsibility, which would result in a conflict between the jurisdictions of the two nations involved. It would have to be resolved by accepting conscription or renouncing their citizenship and choosing naturalization.
Therefore, “all persons born in the United States and not subject to any foreign power” would include the children of legal resident aliens, because their parent(s) would only be subject to the extent that they choose, which would generally be not at all. And that is the view of the US government executive branch and judicial branch. But children born to foreign VISITORS WOULD be under their parents subjection to a foreign power and thus would NOT be US citizens by any sane interpretation of the 14th Amendment and the 1866 Civil Rights Act The contrary would be in violation of natural law and The Law of Nations. AN
“If they (illegal alien couple) then got pregnant and had a child, that child would be born under the complete jurisdiction of the United States with no competing allegiance owed to any foreign country.”
The fact that children born to aliens on US soil have no competing allegiance is a accurate description of the reality of their situation. So they either must be granted citizenship or they would have to be considered stateless persons who could not be deported to any nation because they were not citizens of any nation. That kind of legal limbo is what the authors of the 14th Amendment intended to prevent by using the almost universal language that they used.
But the inclusion of the jurisdiction requirement was meant to avoid granting citizenship to any child born to alien visitors since any alien mother or couple giving birth on US soil would leave the US with their child and that child would be a citizen of their country -where they would raise him/her as a citizen of that country. That would not be the case of children born to aliens living permanently in the US. Hence the need to change the tradition of jus sanguinis being the principle applied to children born and raised in the United States, even though born to aliens. Their country would not be the country of their parents regardless of lack of naturalization. Their country would be the one where they were born and raised. That’s why the 14th Amendment was so inclusively worded.
“Their children would be US Natural Born Citizens by your incorrect formula, just as they would be by the real formula – just born in the USA (with diplo/military exceptions of course) ”
Why do you keep preaching about “private interpretations” while you continue to pretend that yours is settled law? I think that’s called not practicing what you preach, the pot calling the kettle black. NO ONE is a natural born citizen by any law, nor any direct judicial ruling. But you keep proclaiming that your view is the settled view when your view is nothing more than your erroneous opinion. Natural born citizenship can only be said to describe any given US citizen if they are accurately described by its description, which is that they are citizens by birth to citizens in the country of their nationality, i.e. natural citizens.
“SCOTUS through WongKimArk has thoroughly settled the meaning of “jurisdiction” in the 14th Amendment”
That is an inescapable fact. The dispute is as to whether the court had the authority to make such a ruling since it can be argued convincingly that they overturned precedence and tradition. But I don’t think that what they overturned was anything written in legal stone, so they employed their rightful authority to determine that the wording of the 14th Amendment is what really overturned precedence and tradition. They merely decided the case based on the conclusion that all persons, legal or not, who are domiciled inhabitants of any nation are under that nation’s jurisdiction, and are subject to its jurisdiction. That viewed was applied during WWII when resident aliens were subject to the US draft and if they refused they ended up in the Federal penitenitiary. AN
Reply by su359115:
“Blackstone’s ‘natural allegiance’ was a feudal concept based on a helpless baby being under the king’s protection, thus owing the king permanent allegiance. Read Blackstone further, however, and he recognizes English law from 1350 and 1722 that preserves alien jurisdiction and the father’s choice to refuse birth allegiance of his child to that king. Unfortunately, various judges you cite weren’t well-studied on the issue.
In addition, you continue to cite Madison from 1789. Ten months later, the First Uniform Naturalization Act was passed based solely on jus sanguinis and jus albinatus . . . in other words, no jus soli.
Judges are sometimes terribly flawed in their reasoning and holdings. Your ‘two types of citizens’ is a good example. Read legislated acts on naturalization, and the laws must cover many instances of birth depending on the nationalities of the father and/or mother, where the child was born, specific residency requirements, and cases of dual nationality being resolved when the child reaches the age of majority.”
Posted by PhoxarRed on Aug 08, 2011 21:53
Pertinently I here closely paraphrase the settled law of WongKimArk’s magnificent majority opinion interpreting 14th Amendment “jurisdiction” thusly:
From the first organization of the National Government under the Constitution, the naturalization acts of the United States,..required every applicant to have resided for a certain time “within the limits and under the jurisdiction of the United States,” and thus applied the words “under the jurisdiction of the United States” to aliens residing here before they had taken an oath to support the Constitution of the United States, or had renounced allegiance to a foreign government.
And, from 1795, the provisions of those acts which granted citizenship to foreign-born children of American parents described such children as “born out of the limits and jurisdiction of the United States…. Thus, Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as “under the jurisdiction of the United States,” and American parents residing abroad as “out of the jurisdiction of the United States.”
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be … the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts.
This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof” in the opening sentence, as less comprehensive than the words “within its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States Of The Union are not “subject to the jurisdiction of the United States.”
By the Civil Rights Act of1866,… the words of that act, “not subject to any foreign power,” were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright,…any possible doubt in this regard was removed when the negative words of the Civil Rights Act, “not subject to any foreign power,” gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, “subject to the jurisdiction of the United States.”
PR “It is impossible to construe the words “subject to the jurisdiction thereof”… as less comprehensive than the words “WITHIN its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States Of The Union are not “SUBJECT to the jurisdiction of the United States.”
Yes, it is impossible…if you don’t have a brain. Otherwise it isn’t a stretch to grasp that simply being “within” a governments area of jurisdiction does not equate to being willingly in subjection to that jurisdictional authority. As mentioned before, the Americans at the Alamo were within the jurisdiction of Mexico but were not in subjection to that jurisdiction, when if fact they were in total defiance and rebellion to it, just as the founding fathers in regard to Britain. AN
PhoxarRed wrote: “That’s why “native born” and “natural born” have always been used interchangeably ”
That is not true because their interchangeability was due to the fact that the difference between them amounted to perhaps less than .1% or less of births in the US. If that sliver of a difference didn’t exist, they still wouldn’t be synonymous in definition though they would be indistinguishable and identical in content, but still different by distinction of two different definitions. It’s like arguing:
A. All females persons are women.
B. All female transsexual are woman.
Since they share one important feature in common, therefore they are synonymous and:
C. All transsexuals are females and all females are transsexuals.
It was natural to conflate native with natural born but that ERROR is still an error, -though it was one any of us would have made without having studied the issue. AN
If you believe that foreign visitors are “subject” to US jurisdiction, then please explain to us why they can be drafted, oh wait, I’m sorry, I meant to say CANNOT be drafted. CANNOT be ordered to not visit Cuba, CANNOT be ordered to not trade with nations under trade sanctions, -regardless of where in the world they are living.
The United States government does not assume political jurisdiction over visiting foreigners. That is a fact and it is NOT because they are allowing an exception in their case. The right of foreign nationals traveling abroad to not be subject to our political jurisdiction is viewed as being their unalienable right, one of the Rights of Man.
The wording of the 14th Amendment is not; “…and not subject to US jurisdiction because of a special exemption granted to them”. The right of foreign government representatives and foreign visitors to be free from our political jurisdiction is a more fundamental right than merely something that in our sovereign authority we are granting to them, rather it is viewed as a right that is a fundamental necessity rooted in the Laws Of Nations.
Just as persons born to foreign government representatives are not covered by the 14th Amendment, so visiting foreign citizens are also not covered by it. It is only after a foreigner makes the deliberate decision to seek permanent residence or just to effect it on their own, that they then fall under US jurisdiction. Until then, they are not a part or member of our society, nor owe our government any allegiance, and need not obey its political orders. AN
“. . . and consider that Justice Gray ignored the intent and meaning of the ‘under the jurisdiction thereof’ clause.”
First, it’s not “under”, it’s “subject to” and you should consider that that language is only related to the rights of any government to have authority over those residing in its territory and the choices, passive or active, of its residents to be a part of the society that constitutes that nation. Their choice to be here is a tacit acceptance of the duties and responsibilities of citizens, That’s why the words “subject to” were deemed to, in effect, have a dual meaning, one covering the rights of the government and the other covering the rights of the alien. It speaks of a relationship between a person and a government and how they are connected or not connected. Whereas being “within the jurisdiction” refers to boundaries of authority, meaning physical space and legal authority, civil and criminal, rather than an accepted or rejected relationship. No visiting foreigner comes here with the knowledge that just by occupying US soil he is subject to US military conscription or possible charges of treason! But those who are fully subject to the jurisdiction of the U.S. government are.
And no government assumes that those who choose to join its society are free from the responsibilities of its citizens to follow the legal orders of its elected government and its established laws and regulations.
So, in regard to the 14th, you must eventually come to the dawning realization that jus sanguinis was given no role in its wording, but was in fact excluded by excluding those who are not subject to US jurisdiction, namely foreign visitors. Whereas foreign residents ARE subject to US jurisdiction, and therefore their American born children are even more so.
That is the real meaning and intent of the 14th Amendment.
“Therefore, to declare by judicial fiat that a child born of aliens is automatically a citizen or, worse yet, a natural born citizen, is a sin against natural law.”
The latter part of that statement is undeniable certain, but the former part is inapplicable. Natural law only covers that which is analogous to nature. When the Supreme Court in Wong Kim Ark followed the dictate of the 14th Amendment they were not exceeding the definition it gave, they were merely applying it. To do less would have been a travesty against its clear wording. Argue with the 14th Amendment if you will, but the court did not over, nor under interpret it. The citizenship it declares as U.S. policy neither supports nor counters natural law because it doesn’t not even involve natural law. It wasn’t written to clarify the citizenship of natural born citizens but the citizenship of those who were not. Only the citizenship of natural born citizens follows the analogy of natural law, whereas the 14th Amendment follows the dictates of human law and decided national policy.
It definitely ended the policy of the United States government of following jus sanguinis citizenship of aliens, which the government fought all the way to the Supreme Court to defend. It was a policy that worked perfectly when applied to natural born citizens but was a very bad policy when applied to children who had no choice in who they were born to nor where they were born. They were children of America, members of society, and as such had every right to not be disenfranchised merely because of the prior citizenship of their immigrant parents. But their citizenship is by law, not by nature, and as such they are not natural born citizens unless their parents had natural-ized prior to their birth.
A child born prior to his father’s naturalization would not be eligible to be President even though his younger brother who was born after his father’s naturalization was.
The principle is simple and clear. Fairness has nothing to do with it since the eligibility clause was solely about protecting the United States, NOT about meaninglessly conferring a privilege upon every soul born within our borders. AN
“The damage Wong Kim Ark did was the assumption through false logic, in the judiciary and other ‘authorities,’ that ‘born in the United States’ includes Natural Born Citizens,”
I don’t know that WKA can be blamed for the presumption and stupidity of later views, and judgements that misconstrued the meaning of “citizen”, conflating it with “natural born citizen”. If the court had had foreknowledge of what was to come, no doubt they would have made its wording crystal clear that it didn’t apply in a purely jus soli manner, nor in a manner that would redefine natural born citizenship. It’s bad enough that one of those mistakes has become accepted but it’s far worst that they BOTH have been accepted and connected. So now the fools with the reins of authority think that any child of a foreign enemy who happens to be born in the U.S. during a mere sojourn that was measured in hours, not years, is eligible to be the Commander in Chief of all the military, intelligence service, State Dept. and executive branch! The magnitude of this stupidity cannot be exaggerated.
By that logic, the Constitution should read: “Every citizen of the world, friends and enemies alike, can give birth to the President of the United States as long as the mother delivers her child, legally, or illegally, within U.S. borders, no matter how short her stay is, nor where the child is raised, nor who its father is, nor what it is taught, nor what values it absorbs”. Instead it reads: “NO person, except a natural born citizen…is eligible to the office of the President” .AN
PhoxarRed, You uncovered an interesting truth. That is quite a list of nations that practice jus soli citizenship. It appears that they all, including the United States, have a colonial background in either the English, French, or Spanish Empires. I have three responses; India changed FROM jus soli recently? That’s not much of an endorsement. The 33 nations that grant citizenship to children of illegal aliens probably do so to domiciled aliens, not transient aliens who are on the way to somewhere else, or just temporary visitors. There would be no reason under the sun to grant them anything.
Third, I believe that it’s safe to say that the names listed confirm my assertion that jus soli was the principle of enslavement utilized by the aristocracy and monarchs to claim ownership of all inhabitants born on their foreign colonial lands. The native-born inhabitants were the issue of their royal “stables”, their manor estates, their commercial plantations, their Right of Kings dominion. Which heritage do you embrace, that of the slave and bonded servant or that of freemen, as in the non-included nations, like France, Britain, Germany, Russia, China… It is a sad indictment of the erroneous course of American legal opinion that the United States is included in such an IGNOBLE list and hasn’t reasserted its rightful place in the company of civilized nations that follow natural law regarding the principle of citizenship. AN
Veerite January 5, 2009 at 7:18 pm #
There is only one problem. It doesn’t matter if he was born in Hawaii or not. His father was not a US citizen.
There is precedence in this case from a case in 1866 United States vs. Rhodes Case No. 16,151. This means that a natural born citizen has to be born in the US and both parents must be US citizens, otherwise the child would have dual citizenship and would be subject to a foreign power.
United States vs. Rhodes Case No. 16,151
“That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery,”
Explanation from John C. Eastman, Ph.D:
The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “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.” As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country was not entitled to claim the birthright citizenship provided by the 1866 Act.
Read the article for yourself. http://www.heritage.org/research/legalissues/lm18.cfm
To PhoxarRed at WND forum
We (The U.S.) don’t claim that resident aliens who work for their own government, or aliens who are visiting, are subject to our jurisdiction. You keep claiming that they are, but where is the proof? I keep asking you if the US can order visitors to NOT visit Cuba, or North Korea, or not trade with Iran, or submit to military service, and you keep NOT providing an answer.
We (the US) do not claim to have the authority to make such demands. You keep claiming that we have the authority, but don’t exercise it. But you are wrong. If you thought your view was accurate you would have provided proof in the law, but you don’t really believe what you are spewing. You just think that you have to promulgate it so you have a basis to make your unsupportable and outrageously false claim that the 14th Amendment makes all native-born persons “natural born citizens”. I’ve never seen such nerve, to make such an absurd claim supported by absolutely nothing. And you want people to view you as an objective unbiased citizen who’s not a huge Obama backer? You create suspicions that you might even be a covert vanguard warrior to defend the President’s flanks by resorting to total prevarications when necessary. AN