Trump's Plan to End Birthright Citizenship Takes Direct Aim at the Constitution

A passage from one of Rodgers & Hammerstein's lesser known songs, All Kinds of People:
It takes all kinds of people to make up a world,
All kinds of people and things.
They crawl on the earth, they swim in the sea,
And they fly through the sky on wings.
All kinds of people and things,
And, brother, I'll tell you my hunch:
Whether you like them or whether you don't,
You're stuck with the whole damn bunch.
Indeed.
~~~~ Me thinks you may (once again) be misreading the case on United States v. Wong Kim Ark, think about it seriously. ~~~

If and when this gets to the U.S. Supreme Court, we will have it fully clarified once and for all time. Or, just may be that Congress will finally get off their duff with the forthcoming 116th Session and do their duty. Would not hold my breath though - given that both Demorats and Republicrats have introduced legislation within both chambers every session since 1993 and noting has come of it yet! What a joke, the whole world must be 'bustin' a gut'!

MSG Judson Brooks Sure. Once it goes to a politically corrupt and partisan Supreme Court we are definitely gonna see true justice and interpretation of the law. Are you kidding me?
Again, do we interpret the 14th amendment based on when it was introduced or how it applies today culturally? You keep saying I misread the case as if I don’t know how to read. My guess is you didn’t take the time to read the statements of every Justice that participated in the ruling. It was very clear. None of them addressed legality of the parents. You can ignore that fact all you want in your argument but doesn’t change anything. Inject your opinion all you want into the ruling. The Court ruled a child of immigrants with confirmed (not legal) residence in US territory can claim citizenship.

Major, Just wanted to issue a belated but brief retort to you latest post.

First.... about your comment as pertains to "a politically corrupt and partisan Supreme Court". Now Major, it is true that I do not know what is truely in your heart;
however, I do not accept that you truely believe such a statement.... as such, I forgive you for making it. I say this because, I know that you know - "We live within the
greatest country in the world, irrespective of our inherent minor flaws!" Let's move on.

In reference to your question: "Again, do we interpret the 14th amendment based on when it was introduced; or, how it applies today culturally?"

In my humble opinion, we have to both judge and interpret the Fourteenth Amendment consistent with the period within U.S. history in which it was introduced, debated, and ratified.
How it applies today cultrally (?), really has no bearing on the events of 1866, those driving historical events prior to 1866 (e.g. the War of 1812; the Civil War; the 13th Amendment; etc.), and for that matter, the events of post 1866. Moreover, if we want to fully understand and appreciate the reasoning of the 14th Amendment's framers and ratifiers, we have to consider all the driving factors - we simply cannot look at one piece of evidence in isolation and subsequently draw a fair conclusion. Moving on.

It is today routinely believed that, under the Citizenship Clause, mere birth on U.S. soil is sufficient to confer U.S. citizenship. What this formulation omits, of course, is the other component of the Citizenship Clause. One must also be “subject to the jurisdiction” of the United States in order constitutionally to be entitled to citizenship. The notion that the framers of the Fourteenth Amendment, when seeking to guarantee the right of citizenship to the former slaves, also sought to guarantee citizenship to the children of enemies of the United States who were in our territory illegally, is simply too absurd to be a credible interpretation of the Citizenship Clause.

Let us be totallly clear as to what our objectives are with respect to the 14th Amendment here. Nobody is talking about repealing the 14th Amendment, or taking away anyone's citizenship. No one is advocating that those who have been granted birthright citizenship be stripped of their citizenship. Equal protection considerations would counsel that citizenship once granted is vested and cannot be revoked; this, I think, is eminently just. The proposal to end birthright citizenship is prospective only. Nor, must we amend or even consider amending the Constitution. We simply do however need to clarify the extent of birthright citizenship. It should done so as part of a clear and meaningful policy concerning immigration, naturalization, and citizenship that is consistent with the core principles and highest ideals of the United States. Additionally, as important as clarifying what the Fourteenth Amendment covers, is clarifying what it does not cover.

Think we first need to consider the primary driving force behind the 14th Amendment. As a nation, Congress passed the 13th Amendment (in February 1865) effectively abolishing slavery and the states ratified same (in Dec 1865); however, although supposedly freed, these Americans were not and could not be considered citizens due to a an 1857 SCOTUS case 'Dred Scott v. Sanford'. Thus, it was the primary purpose of the 14th Amendment to counteract the Supreme Court’s 1857 decision in Dred Scott v. Sanford which denied citizenship not just to Dred Scott, a slave, but to all African-Americans, whether slave or free, the Congress proposed (in June 1866) and the states ratified (in July 1868) the Citizenship Clause of the Fourteenth Amendment, which specifies: “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.”

Consider also, the Civil Rights Act of 1866 and the Citizenship Clause contained therein. The 1866 Civil Rights Act, which the 14th Amendment was intended to codify, clearly limits automatic citizenship to those “not subject to any foreign power.” 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.”
(This was the first federal act to define citizenship and attempt to guarantee the civil rights of all persons regardless of race.) It also significant to note that the Enforcement Act of 1870 is a word-for-word re-enactment of 1866 Civil Rights Act and was passed a full two years after ratification of the 14th Amendment. Despite its slightly different phrasing, within the Fourteenth Amendment it codified the Citizenship Language of the 1866 Act.

Section 1 of the Fourteenth Amendment outlines the conditions for U.S. and state citizenship. In the years before the amendment was approved, citizens of a state were automatically considered citizens of the United States. In Dred Scott v. Sanford (1857), the Supreme Court ruled that no black person could be a citizen. The Fourteenth Amendment settled the question of citizenship for newly freed slaves: All persons born or naturalized in the United States and “subject to the jurisdiction” thereof are United States citizens. The Fourteenth Amendment makes United States citizenship primary and state citizenship secondary.

Prior to the adoption of the Fourteenth Amendment, Congress passed the Civil Rights Act of 1866 to clarify the status of citizenship for newly freed slaves, but the constitutional authority for the Civil Rights Act was questionable (it relied on the Thirteenth Amendment), and a constitutional amendment would be more difficult to overturn than a piece of legislation.

The Citizenship Clause of the Fourteenth Amendment has two criteria for Citizenship: One must be born or naturalized in the United States and subject to the jurisdiction of the United States. “Subject to the jurisdiction” means more than being subject to the laws of the country; it requires an exclusive allegiance to it. Diplomats, foreign tourists, Indians, and illegal immigrants would not be subject to the complete jurisdiction of the United States, because these individuals would still owe allegiance to another sovereign.

The American understanding of citizenship departs from the British common-law understanding of citizenship. Under common law, one was born a citizen and could never renounce or forfeit that citizenship. According to the Declaration of Independence, individuals become citizens by consent, which includes the right to forfeit one’s citizenship. The consent requirement is twofold: The individual must consent to join the community as a citizen, and the community must consent to the individual’s joining. The Supreme Court case of Elk v. Wilkins (1884) reveals this twofold understand-ing of consent. In that case, an Indian who renounced his tribal allegiance was not automatically a citizen of the United States. The Court explained that neither Indian tribes, nor a member of a tribe, nor any other foreigner can become citizens of their own will. Beginning in 1870, Congress extended offers to members of Indian tribes to become United States citizens if they chose to do so.

The 1898 case of United States v. Wong Kim Ark has confused the understanding of citizenship under the Fourteenth Amendment. The Supreme Court declared that the amendment adopted a common-law understanding of citizenship, suggesting that citizenship was conferred at birth. The Court has not revisited this decision or explicitly held that the Fourteenth Amendment requires birthright citizenship. Moreover, the Chief Justice in this case (Justice Horace Gray, writing for the Court) made numerous other errors within his interprative gloss/dicta in addition to the principle error of attempting to align this case's holding with that of British common-law, which we as a nation emphatically rejected via our Declaration of Independance ; however, for the sake of brevity those errors will not be discussed herein. Dr. John C. Eastman has more than adequately covered Gray's areas of omission, oversight, etc. in his testimony before U.S. House of Representatives Committee on the Judiciary Subcommittee on Immigration and Border Security in 2005,as well as, 2015. Please feel free to read his testimony at your leisure, should you so desire.

The importance of allegiance as its relates to the Citizenship Clauses of both the 14th Amendment and the Civil Rights Act of 1866 cannot be overemphasized. For one cannot understand and/or appreciate the intent of the framers or those who ratified the amendment without a thorough understanding of 19th century allegiance. In order to understand the debates about the Citizenship Clauses of the Civil Rights Act of 1866 and the Fourteenth Amendment, it is essential to understand the historical background of the nineteenth-century concept of allegiance. The following excerpts from a study effected by professor Mensel in 2013 are provided for your perusal.

Allegiance in the period up to 1870 carried with it a jurisdiction that extended beyond the borders of the sovereign claiming it. It was far more expansive than its enervated twenty-first century descendant. Nineteenth century conflicts over allegiance brought the United States to war with Great Britain and later helped split the U.S. into hostile halves. While they receive little attention from modern scholars, allegiance and the jurisdiction arising from it received considerable attention from American and European governments during the first seven decades of the nineteenth century. Their concerns echoed in the citizenship clauses of the Civil Rights Act of 1866 and of the Fourteenth Amendment. [Complements: Professor Robert E. Mensel, St. Thomas University School of Law]

Nineteenth century citizenship and subjecthood cannot be understood without a grasp of the concept of allegiance. Allegiance was the link between subject and sovereign that created the obligations of each to the other. The idea that one person could owe allegiance to more than one sovereign in that period was conceptually anomalous and logistically unwieldy. The competing claims could not comfortably co-exist. A citizen or subject could owe allegiance to only one sovereign. [Complements: Professor Robert E. Mensel, St. Thomas University School of Law]

The jurisdiction over persons mentioned in the Fourteenth Amendment can only have arisen from the allegiance owed by that person to his or her sovereign, or from that person’s presence in the territory of the sovereign claiming to exercise the jurisdiction. Jurisdiction in that century arose only from those sources. Yet the jurisdiction arising from allegiance, on the one hand, and territorial jurisdiction, on the other, overlapped and clashed throughout the nineteenth century, causing significant international friction, including the War of 1812 and numerous, less violent confrontations. Territorial jurisdiction is well enough understood that it needs little explanation. It has changed little, from the standpoint of international law, since that period. The jurisdiction arising from allegiance is less well known to observers today. It was an artifact of the relationship between the subject and the subject’s original sovereign. It followed the itinerant subject into the territories of foreign sovereigns. It was vastly more important and more intrusive into the authority of territorial sovereigns during the nineteenth century than is generally recognized today. This put American law on a collision course with the laws of Great Britain and many of the Western European states in the nineteenth century, once leading to war and once nearly so. International law had not yet evolved to accommodate and defuse this conflict. Change was in the air, however, in the U.S. and in Europe. Diplomats and legislators explored ways to avoid such conflicts by resolving overlapping claims to allegiance asserted by different sovereigns. Congress and the Executive did so immediately after the Fourteenth Amendment was sent to the states, when the U.S. and several European partners negotiated and finally entered into the Bancroft Treaties. At that same time, Congress re-enacted the Civil Rights Act of 1866, word for word, in the Enforcement Act of 1870, confirming that the citizenship clauses of the two measures carried the same meaning. . [Complements: Professor Robert E. Mensel, St. Thomas University School of Law]

As so succinctly put by Professor Mensel after some 60+ printable pages of research on this issue of Birthright Citizenship:
"Even taking into account all of the sources of confusion, in my judgment, the weight of the historical record still favors the understanding that both the Act and Amendment were intended by the majority that enacted them to limit citizenship by birthright to children born here of parents who owed undivided allegiance to the United States. This conclusion may seem anomalous, unhelpful, or too extreme in the context of the current debate. So be it. The past did not exist for our convenience, or as the prologue to a present imagined as inevitable. Children born here of parents who, at the time of the birth, remained citizens or subjects of another sovereign, would not have been citizens by birthright. They would have different paths to citizenship. No one was stateless; no one was required to leave in 1866 or 1868. The weight of the evidence favors that understanding, but the evidence is not monolithic or unanimous. Caution and further research are appropriate."

We need to get this right, the issue is just too important to our national security for us as a nation to just keep ignoring. The costs of births for the children of illegal aliens is staggering. It has been estimated that approximately 275,000 births occured within the United States in 2014 alone at a cost of $2.35 billion in taxpayer funding. Moreover, an entire industry known as 'Birth Touism' has resulted from the misinterpretation of the Citizenship Clause of the 14th Amendment. It has been estimated that 'Birth Tourism' accounted for approximately 36,000 births in the year of 2015 alone - that is 36,000 children whose parents were from foreign countries and their children were subsequently made United States citizens (by the U.S. Department of State via issuance of U.S. passorts & birth certificates) simply for having been born on U.S. soil. This was not the intent of either the framers or ratifiers of the Amendment in question.

In addition, there is one more important reason for seeking clarification of the Citizenship Clause as put forth within the 14th Amendment. In less than 30 day approximatelty 468 members of the U.S. Congress will be administered their oath of office prior to commencement of the 116th Congressional Session. That oath is has no limitation or exceptions. This oath/obligation is required of each member and goes something like:
"I, AB, do solemnly swear [or affirm] to support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." Now given that this has been an on-going issue within both the House of Representatives and the Senate since at least 1991, and with legislation introduced by both sides of the political isle - there can be no excuses of ignorance relative to the issue. Seems to me that anyone who take the oath as stated is either a liar and guilty of perjury, or that the entire oath-taking endeavor is a pure sham. So which is it? Why not ask your representatives in Congress - you may be
surprised at their answer!
Again, I ask You To Think Seriously About This Issue!

And-d-d, Of Course.... Have a great day.

MSG Judson Brooks - I see I'm not the only one who can C & P.

Capt Gregory Prickett - That is why we have a supreme court, simply put you can have clauses on how to interpret certain things certain ways. Ideally we could just immediately deport illegals who commit felonies and be done with it...

MAJ (Join to see) - yes, that is why SCOTUS is there, but you can't "put clauses" by judicial review. The problem is that you won't have jurisdiction. It's an unintended consequence of the xenophobic fear of your fellow citizens whose parents are aliens.

Capt Gregory Prickett - The supreme court has been doing that for 200 years. Started with Marbury vs. Madison or would you care to show me where the supreme court has the power to determine if a law is constitutional?

MAJ (Join to see) - sure, it's in Art. III, § 2, cl. 2. You can also read Federalist No. 78 to see what the Founding Fathers believed the Court's power included. It was also common in the State courts of the period, specifically from 1776 to 1787, where seven of the thirteen States had invalidated their own laws based on the law's incompatibility with the State Constitution. Next, it was discussed in the ratification procedures in numerous States, always with the statement that the federal courts would have the power of judicial review--and with not a single individual or delegate claiming that there would be no power of judicial review.

Finally, please show me where SCOTUS has added clauses to law. It hasn't happened.