Does the Fourteenth Amendment Guarantee Birthright Citizenship? [POLICYbrief]

Does the Fourteenth Amendment Guarantee Birthright Citizenship? [POLICYbrief]

Before the Civil War, it appears that the
people who decided on citizenship were the states because the federal government was
not really regulating it at all. Citizenship was done under what we call the
common law, the law we inherited from England at the time of the Revolution. No one disagrees that that’s the rule that
applied in England at the time of the Revolution. If you were born on English soil, you were
English, and so the assumption has always been to the extent we can tell that the states
all adopted the birthright citizenship approach. Now, the reason why this became important
is because of Dred Scott. Dred Scott is the decision in which Chief
Justice Taney held that both slaves and freed slaves could never be citizens of the
United States, could not be legal persons, even though they were born on the territory
of the United States. So, Dred Scott itself rejected the birthright
citizenship rule. The North, at great cost in lives, would then
overrule Dred Scott, once they won the war, and after the war, enact three amendments,
the 13th, 14th, and 15th Amendments, which I would say at the very least restored the
rights of people before to birthright citizenship. Think about what the alternate system would
be. The alternate system would be, if you don’t
have a rule in the Constitution about who’s a citizen, then who decides? The president and Congress decide. It seems to me that the people who fought
and died in the Civil War to free the slaves and to expand individual liberty for all of
us, do you think they would have wanted to leave the definition of citizenship, on which
all the other rights turn, up to the president or Congress? The one thing I think the 14th Amendment does
do is to take that out of the hands of our elected representatives. That was the great fault of Dred Scott was
the Supreme Court and people in Congress wanted to change the definition of citizenship to
suit their political needs. I think it’s much better if it’s in the Constitution
rather than if it’s up to politics. Most people think, “If you’re born in the
United States, that’s it, you’re a citizen.” And the language of the Fourteenth Amendment, to
our modern ears, suggests that. “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens.” Pretty clear. Well, not so fast. The question is, what does that phrase, “are subject to the jurisdiction” mean? Modernly, we tend to equate it as synonymous
with subject to our laws. If you’re subject to a court’s jurisdiction,
you’re within the geographic territory. We equate the two. The question is, is that what they intended
at the time the Fourteenth Amendment was ratified? At the time, there were two ideas. There was subject to the complete jurisdiction,
and there was also what we call subject to the partial or territorial jurisdiction. We put it kind of in a modern analogy;
if you’re a subject of Great Britain and you’re visiting the United States as a tourist, while
you’re here, you have to comply with our laws. But you’re not subject to our complete jurisdiction. You don’t owe us any allegiance, and the Court
specifically says, in the Slaughterhouse Cases, the phrase, “subject to the jurisdiction”
was intended to exclude from its operation children of ministers, counsels, on that everybody
agrees, and citizens or subjects of foreign States born within the United States. As long as they continue to owe their allegiance
to the foreign power, they were not subject to the jurisdiction in the way intended by
the Fourteenth Amendment. Now, all of this was designed to codify a
statute that had been adopted a few years earlier, the 1866 Civil Rights Act, that if
you’re born here, and don’t owe allegiance to anybody else, like the former slaves, which
it was clearly designed to address, the Dred Scott, then you’re citizens. Beyond that, the power to decide how much
citizenship to offer remains where it always has been, in Congress under the naturalization
power. It’s uniform all the way up until 1898 in
the Wong Kim Ark case. Wong Kim Ark involved somebody who was lawfully
domiciled here, not temporarily visiting here. And the Supreme Court held, with very broad
language, that anybody born on U.S. soil is gonna be a citizen. The actual holding of the case is limited
to people who were domiciled here because that’s all that was at issue in the case. In other words, most scholars will recognize
that the Supreme Court has never decided the issue of whether the children of temporary
visitors, sojourners was the word they used at the time, are citizens by mere birth on
U.S. soil.


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    Tourists to this nation (or any nation) who give birth in the nation they are visiting should not have citizenship automatically granted to the child.
    If the parents of the child are citizens then so is the child.

    If one of the parents isn't than the child can have duel citizenship until an age at which they can choose. If they do not choose sole US citizenship they cannot vote or hold office. If you want to have an allegiance to another country you need to pay for it and voting/holding office seems a reasonable price.

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    Natural Consequences

    The 14th protects our "privileges and immunities ". Are we not the lucky subjects? And we can not be deprived of them without due process of law or in a manner prescribed by law. And that…my friends…gives me a warm fuzzy safe feeling.

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    Nobiles Novus homo

    Mexican: mass migrates to California
    Mexican: knows nothing of the founding fathers principles or the Federalist papers.
    Mexican: votes in California
    Also Mexican: why did the third world follow me here?

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