Wednesday, October 31, 2018


     President Trump’s recent suggestion that he might undo the birthright citizenship of “anchor babies” – babies born to mothers illegally in the United States – has evoked a flurry of opposed interpretations of the first paragraph of the Fourteenth Amendment to the Constitution:

     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. [Emphasis added by FWP]

     The emphasized phrase is the nub of the matter. Is a child brought illegally into this country in his mother’s womb subject to the jurisdiction of the United States? When the Fourteenth Amendment was ratified, the answer was no. Left-leaning outlets claim that the Supreme Court changed this interpretation in U.S. v. Wong Kim Ark, but that’s a tendentious reading of the decision. Ark’s parents were legal residents of the United States when Ark was born. There is no indication anywhere in the majority opinion that it was intended to apply to the children of illegal aliens.

     Conservative commentators have invoked the context in which the Fourteenth Amendment was passed: specifically, that it was aimed at establishing the citizenship of children born to the recently emancipated slaves. This was an egregious matter indeed, for after the 1808 legal changes that forbade the further importation of slaves, slave owners asserted that a child born to a slave was, quite as much as the mother, the slave owner’s rightful property. The federal government did not address the matter, and of course the slave states would not contradict the assertions of the slave owners.

     I’ve searched my reference books for further Supreme Court decisions relevant to the question. I can’t find any.

     There is considerable conflict among the nations about this matter of jurisdiction. The two principal conceptions about it clash dramatically.

     The first of these is the Law of the Soil or jus soli:

     In some countries, jus soli system or birthright citizenship is followed. According to this principle, citizenship of a person is determined by the place where a person was born. Jus soli is the most common means to acquire citizenship of a nation.

     The second conception is the Law of the Blood or jus sanguinis:

     This term when used in the context of citizenship refers to acquisition of citizenship, by the citizenship of the parents. It lays down the principle that the nationality or citizenship of a person is determined by the citizenship of the parents who is a national or citizen of a state.

     In its determinations of citizenship, American law uses both conceptions:

     Pursuant to 8 USCS § 1401, the following persons can acquire citizenship by jus soli:
  1. A person born in the U.S., and subject to its jurisdiction.
  2. A person born in the U.S. as a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.
  3. A person of unknown parentage found in the U.S. while under the age of five year. The person can remain a U.S. citizen if it is not shown before s/he attains twenty five years that the person was not born in the U.S.
  4. A person born in an outlying possession of the U.S. (i.e., including Puerto Rico, the Panama Canal Zone, Panama, the Virgin Islands and Guam.) of parents, one of whom is a citizen of the U.S. who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.

     The above supposedly applies jus soli criteria. However, note that the children of federal government employees stationed in other nations, no matter how long it might have been since either parent was last in the United States, are granted birthright citizenship through the application of jus sanguinis. (It would be far more difficult to hire people into the Foreign Service were that not the case.)

     American law is moderately (but not completely) averse to the concept of dual citizenship. If American citizen parents were to birth a child in another country while there under the terms of the fourth provision of 8 USCS § 1401 enumerated above, American courts would recognize the child’s American citizenship, but (with certain exceptions) would not recognize his citizenship in that other country. This provision is seldom of importance to ordinary Americans. It tends to arise only in matters of extradition and the voluntary renunciation of American citizenship, both of which are fairly rare.

     Senator Ted Cruz was briefly troubled by dual-citizenship questions during his 2016 presidential campaign. Cruz was born in Calgary, Alberta to Eleanor Wilson, an American citizen who satisfied the fourth provision of 18 USC § 1401; thus, he had birthright American citizenship. However, he also had jus soli Canadian citizenship, owing to his birth in that country. That evoked challenges to his Constitutional qualifications for the office of president, which were ultimately resolved in his favor. (Whether Cruz was qualified under jus soli to become prime minister of Canada has never been addressed.)

     It’s quite a mess, isn’t it? In all probability it won’t be settled any time soon. Should a case be presented to the Supreme Court, the Court might well decline to hear it. If the Court were to hear it, there would be arguments on both sides, owing to the clashing applications of jus soli and jus sanguinis in federal law. Moreover, as birthright citizenship has been conferred on the children of illegal aliens for several decades, a conservative’s approach to the issue would be caught between the strict wording of the Fourteenth Amendment and a desire to preserve stability by ratifying existing practices.

     Americans’ great need is to know what the law really is:

    “Miss Weatherly,” he said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
    “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
    “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
    “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”

     Before we leave this subject, have a highly relevant observation from Robert Curry:

     The Democrats are done with paying lip service to American ideals they do not believe in just so they can get elected. They have had it with the American people, and they have decided to replace us with people more to their liking, people who will never consider blocking their progressive agenda.

     How can the Democrats be so certain that the floodtide of illegals they’ve chosen for this task can be counted upon to empower them? Could it be because those people are not exactly dedicated to the American idea, either?

     These new people may not be able to mouth the progressive talking points against the Electoral College or argue for “the living Constitution” but, for the progressives, their hearts are in the right place and their votes will obediently follow their benefactors. That’s what counts.

     The stakes are clearly very high. High stakes means that the big guns – legal and opinion-editorial – will be firing. Nor would they cease to fire even after a definitive, 9-0 Supreme Court decision. Two utterly opposed agendas are involved, and the backers of both will go all in.

     Stay tuned.


Amy Bowersox said...

There is apparently one other Supreme Court case that has been cited as having bearing on this issue. In that one, the Court was faced with the question of whether a public education could be denied to the children of those who came here illegally. The Court said "no," but their ruling relied on the "equal protection" clause of the 14th Amendment, which is not limited to citizens. So that case isn't on point either.

Linda Fox said...

I'm against birth citizenship, in general. Some of the people most often taking advantage of it are from Asia - South Koreans who want their kids to be able to avoid military service, Chinese citizens who want an escape if their government turns agains them, and Indians who use their money to get legal residency, and have their kids taking advantage of American citizenship for the purposes of college, but who, then, refuse to become part of this country, sending back to India for brides/husbands for their children.

AS DO MANY OF THESE "KINDA-SORTA" RESIDENTS. I'm against it. If you want to marry someone from your home country - go back and live there with them, until they can qualify for a REGULAR visa - NOT an expedited one. That would do a LOT to reduce these marriage schemes.

The same goes for Foreign Brides - they get NO extra advantage in emigration. And, any relatives have to wait in line.

Andy Texan said...

Mark Levin is the final word on this matter as far as I am concerned. The meaning of the amendment is explicitly defined by the writer of the amendment. The federal government changed the correct interpretation in the 1960's and the President as head of the government can go back to the true meaning of the amendment. No federal law or constitutional amending needed.

daniel_day said...

Linda, I'm of two minds about your comment about foreign brides. My experience is that the US government *tries* to take a certain level of care with foreign wives. In order for my wife to apply for a green card (this was in 1996, if that matters), she had to travel to the embassy in Tokyo for an interview, even though there is a US consulate in Sapporo, where we lived. I've forgotten what I had to prove on the application, aside from showing that we already owned a house in Oregon, but at the time, it seemed extensive.
And then again, there's a guy here in Oregon who recently told me he had "married" a Brazilian woman several years ago who was already in the US and wanted to get a spouse visa. The system failed to catch that fraud.