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Children of Illegal [Alien] Immigrants Are Not Born American Citizens

Article author: 
Tim Dunkin
Article publisher: 
Canada Free Press
Article date: 
August 28, 2015
Article category: 
Immigration Impact
Medium
Article Body: 

... Defenders of unrestricted birthright citizenship - primarily found among liberals, establishment GOP types, and the more uninformed types of libertarians—adamantly argue from the 14th amendment’s Citizenship Clause that birthright citizenship is not only legal, but is in fact constitutionally protected, and is what the 14th amendment has meant all along. They often try to buttress their arguments by appealing to English common law with its historical provisions for birthright citizenship... Is it really what English common law, which forms the basis for much of our own law and constitutional interpretation, historically upheld? The answer to these questions is, “No.”

The crux about which the discussion revolves is the Citizenship Clause found in the 14th amendment, 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.”

More specifically, what is at issue is the phrase, “and subject to the jurisdiction thereof.” Clearly, the clause was not intended to convey American citizenship to an unlimited pool of children born to aliens on American soil...

 
... Let’s understand what the original intention of the 14th amendment was, which was to grant American citizenship to former black slaves and their children, and to prevent these newly freed citizens from being denied citizenship rights by certain of the southern states. That’s it. This was made clear by Sen. Jacob Howard, who authored the amendment in 1866, who clearly provided the intent for this section of the amendment,

Every person born within the limits of the United States, and subject to their jurisdiction, is, by virtue of natural law and national law, a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great issue in the jurisprudence and legislation of this country.”

Clearly, other classes of foreign citizens were intended besides the children of ambassadors and other diplomatic personnel. Indeed, Howard’s statement appears to be quite all-encompassing—if taken at face value, it would appear that he did not even intend the 14th amendment to grant citizenship to the children of foreign nationals here legally, much less to those here illegally. Sen. Lyman Trumbull when asked about the meaning of “jurisdiction thereof” during the debate surrounding this amendment in Congress, stated that it,

...means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.”

Sen. Howard agreed with this interpretation, stating,

I concur entirely with the honorable Senator from Illinois, in holding that the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States…that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

What this essentially means is that the citizenship clause, as intended by the authors and supporters at the time the 14th amendment was produced, was meant to apply to the children of those who were already citizens of the United States. It did not apply to those who were only under the general and incomplete jurisdiction of being foreigners who merely happened to currently be on American soil...

United States v. Wong Kim Ark

However, to get around the arguments above, some commenters will appeal to the case of United States v. Wong Kim Ark, which was decided by the Supreme Court in 1898. This case involved the child of two Chinese parents who were citizens of China and subject to the Chinese Emperor, the child (Mr. Wong) having been born in the United States. Mr. Wong claimed United States citizenship but was denied it by lower courts, but took the case all the way to the Supreme Court, which reversed the lower court decisions and found in his favor...

Calvin’s Case and Common Law

...By violating our immigration laws, illegal [alien] immigrants are explicitly violating and subverting the sovereignty of the people of the United States, expressed through our legislature, and are therefore not amicus, but are inimicus to our sovereign power. As such, their children, even if born on our soil, cannot be said in any way, shape, or form to be born “within the allegiance” of the sovereignty of the people of the United States...

As such, it ought to be apparent from all that has been said above that there simply is no constitutional right to natural born citizenship for the children of illegal aliens in the United States. As such, making the much-needed reforms in our immigrations laws so as to explicitly close this loophole can in no way be called “unconstitutional.” All that is needed is for Congress to act to pass the necessary statutory law to clarify this area and close the hole. No constitutional amendment is needed, for the current interpretation of the Citizenship Clause is just that—an interpretation.  Further, it is an interpretation that does not actually rest on common law, as we have seen above, but is actually a relatively new innovation in US constitutional law, first finding expression in a footnote to Justice Brennan’s opinion in the 1982 case of Plyler v. Doe. In this footnote (which qualifies as obiter dicta, a statement that does not actually carry any weight as precedent), Brennan stated,

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”...

 


CAIRCO Research

Anchor babies, birthright citizenship, and the 14th Amendment

The 14th Amendment  and Consequences of misinterpreting the 14th Amendment to the United States Constitution