Thread: Constitutional Scholar: ANCHOR BABIES ILLEGAL!!!

Folks, THIS is what we need to hammer home!! Print out this info and
fax it to your congresscum, e-mail it to them, and by all means alert
the media!!


from http://idexer.com/citizenship.htm


The UnConstitutionality of Citizenship by Birth to Non-Americans
By P.A. Madison
Former Research Fellow in Constitutional Studies
Last updated 4/18/06

We well know what federal law says on the subject of children born to
non-citizens (illegal aliens) within the limits of the United States
by declaring them to be American citizens. But what does the
Constitution of the United States say about the issue of giving
American citizenship to anyone born within its borders? As we explore
the Constitutions Citizenship Clause, as found in the Fourteenth
Amendment, we can find no Constitutional authority to grant such
citizenship to persons born to non-American citizens within the
limits of the United States of America.

We are, or should be, familiar with the phrase, "All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and the States wherein
they reside." This can be referred to as the Citizenship Clause of
the Fourteenth Amendment, but what does "subject to the jurisdiction"
mean? Jurisdiction can take on different meanings that can have
nothing to do with physical boundaries alone--and if the framers
meant geographical boundaries they would have simply used the
term "limits" rather than "jurisdiction" since that was the custom at
the time when distinguishing between physical boundaries, reach of
law or complete allegiance to the United States.
It is important to understand what the text of the clause actually
says: subject to the jurisdiction of the United States and not any
particular State jurisdiction. This is why laws at the time were
written to include both limits and jurisdiction of the United States
when speaking of aliens. Take for example U.S. title XXX of 1875, sec
2165 where it states: "Any alien who was residing within the limits
and under the jurisdiction of the United States..."
Here the law makes the distinction between simply residing in the
United States and being under the jurisdiction of the federal
government. This simply means that residing in the United States does
not automatically put an alien under the jurisdiction of the United
States. The reason mainly has to do with the fact the US Constitution
does not give the federal government jurisdiction over a resident
residing within a State -- only the States themselves was given this
sole jurisdictional role.

It's also equally important to understand that there is only one path
for which an alien can come under the jurisdiction of the United
States for purposes of citizenship: Through the process of
naturalization that, among other things, requires a person to
renounce all allegiance to their country of origin. The Fourteenth
Amendment framers did not recognize as a matter of law that an alien
giving birth to a child within the limits United States, is by
itself, an act of naturalization on the part of the mother. This is
because the naturalization of aliens is a process of rules set forth
in naturalization laws, and not something an individual can
accomplish through their own acts outside of these rules of law.
The principle behind birthright is the same as it was before and
after the adoption of the 14th amendment: Only a citizen can make a
citizen through the process of childbirth. Any other avenue to
citizenship requires an act of naturalization under naturalization
laws or perhaps, by treaty. President Lincoln's Attorney General,
Edward Bates, wrote a opinion dated November 29, 1862 that
stated: "The Constitution itself does not make the citizens, it is,
in fact, made by them."
We are fortuante to have the highest possible authority on record to
answer this question of how the term "jurisdiction" was to be
interpreted and applied, the author of the Citizenship Clause, Sen.
Jacob M. Howard (MI) to tell us exactly what it means and its
intended scope as he introduced it to the United States Senate in
1866:
Mr. HOWARD: I now move to take up House joint resolution No. 127.

The motion was agreed to; and the Senate, as in Committee of the
Whole, resumed the consideration of the joint resolution (H.R. No.
127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons
born in the United States and Subject to the jurisdiction thereof,
are citizens of the United States and of the States wherein they
reside. I do not propose to say anything on that subject except that
the question of citizenship has been fully discussed in this body as
not to need any further elucidation, in my opinion. This amendment
which I have offered is simply declaratory of what I regard as the
law of the land already, that 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
desideratum in the jurisprudence and legislation of this country.[1]
One significant highlight about what Sen. Howard says above is that
he regards the clause as simply declaratory of the "law of the land
already" and is a virtue of "natural law" and "national law." Why
this is significant is because some have mistakenly argued that the
Citizenship Clause was somehow rooted in Common Law.
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of
the Thirteenth Amendment gives us the definition of what "subject to
the jurisdiction thereof" means under the Fourteenth Amendment:
[T]he provision is, that 'all persons born in the United States, and
subject to the jurisdiction thereof, are citizens.' That
means 'subject to the complete jurisdiction thereof.' What do we mean
by 'complete jurisdiction thereof?' Not owing allegiance to anybody
else. That is what it means.
Trumbull continues, "Can you sue a Navajo Indian in court? Are they
in any sense subject to the complete jurisdiction of the United
States? By no means. We make treaties with them, and therefore they
are not subject to our jurisdiction. If they were, we wouldn't make
treaties with them...It is only those persons who come completely
within our jurisdiction, who are subject to our laws, that we think
of making citizens; and there can be no objection to the proposition
that such persons should be citizens.[2]
Sen. Howard concurs with Trumbull's construction:
Mr. HOWARD: I concur entirely with the honorable Senator from
Illinois [Trumbull], 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, whether exercised by
Congress, by the executive, or by the judicial department; that is to
say, the same jurisdiction in extent and quality as applies to every
citizen of the United States now.[3]
In other words, only children born to American citizens can be
considered citizens of the United States since only a American
citizen could enjoy the "extent and quality" of jurisdiction of an
American citizen now. Sen. Johnson, speaking on the Senate floor,
offers his comments and understanding of the proposed new amendment
to the Constitution:
[Now], all this amendment [Citizenship Clause] provides is, that all
persons born in the United States and not subject to some foreign
Power--for that, no doubt, is the meaning of the committee who have
brought the matter before us--shall be considered as citizens of the
United States. That would seem to be not only a wise but a necessary
provision. If there are to be citizens of the United States there
should be some certain definition of what citizenship is, what has
created the character of citizen as between himself and the United
States, and the amendment says that citizenship may depend upon
birth, and I know of no better way to give rise to citizenship than
the fact of birth within the territory of the United States, born to
parents who at the time were subject to the authority of the United
States.[4]
No doubt in the Senate as to what the Citizenship Clause means as
further evidenced by Sen. W. Williams:
In one sense, all persons born within the geographical limits of the
United States are subject to the jurisdiction of the United States,
but they are not subject to the jurisdiction of the United States in
every sense. Take the child of an embassador. In one sense, that
child born in the United States is subject to the jurisdiction of the
United States, because if that child commits the crime of murder, or
commits any other crime against the laws of the country, to a certain
extent he is subject to the jurisdiction of the United States, but
not in every respect; and so with these Indians. All persons living
within a judicial district may be said, in one sense, to be subject
to the jurisdiction of the court in that district, but they are not
in every sense subject to the jurisdiction of the court until they
are brought, by proper process, within the reach of the power of the
court. I understand the words here, 'subject to the jurisdiction of
the United States,' to mean fully and completely subject to the
jurisdiction of the United States.[5]
Rep. John Bingham of Ohio, considered the father of the Fourteenth
Amendment, confirms the understanding and construction the framers
used in regards to birthright and jurisdiction while speaking on
civil rights of citizens in the House on March 9, 1866:
[I] find no fault with the introductory clause [S 61 Bill], which is
simply declaratory of what is written in the Constitution, that every
human being born within the jurisdiction of the United States of
parents not owing allegiance to any foreign sovereignty is, in the
language of your Constitution itself, a natural born citizen...[6]
The reason the language "subject to the jurisdiction thereof" was
chosen for the Citizenship Clause instead of the civil rights bill
language that read "all persons born in the United States and not
subject to any foreign power, excluding Indians not taxed" was
because Howard feared States could eventually impose a tax on
Indian's, making them eligible for citizenship under the Fourteenth.
Because of the language "subject to the jurisdiction thereof"
required direct allegiance to the United States, Indian's would be
disqualified because they owed their allegiance to their respective
tribes which in return were considered foreign nations. In 1872 Sen.
James K. Kelly sums up the clause and national law on the subject in
the most clearest language that anyone could understand when he
said "in order to be a citizen of the United States he must been not
only be born within the United States, but born within the the
allegiance of the United States."[7]
Further convincing evidence for the demand of complete allegiance
required for citizenship can be found in the "Naturalization Oath of
Allegiance to the United States of America," an oath required to
become an American citizen of the United States. It reads in part:
I hereby declare, on oath, that I absolutely and entirely renounce
and abjure all allegiance and fidelity to any foreign prince,
potentate, state or sovereignty, of whom or which I have heretofore
been a subject or citizen...
Of course, this very oath leaves no room for dual-citizenship, but
that is another troubling disregard for our National principles by
modern government. Fewer today are willing to renounce completely
their allegiance to their natural country of origin, further making a
mockery of our citizenship laws. In fact, recently in Los Angeles you
could find the American flag discarded for the flag of Mexico in
celebration after taking the American Citizenship Oath.
It's noteworthy to point out a Supreme Court ruling in Afroyim v.
Rusk, 387 U.S. 253 (1967), where the court completely discarded the
fourteenth's Citizenship Clause scope and intent by replacing it with
their own invented Citizenship Clause. The court in effect, ruled
that Fourteenth Amendment had elevated citizenship to a new
constitutionally protected right, and thus, prevents the cancellation
of a persons citizenship unless they assent.

Unfortunately for the court, Sen. Howard effectively shoots down this
feeble attempt to replace his clause with their own homegrown
Citizenship Clause. Firstly, Howard finds no incompatibility with
expatriation and the fourteenth's Citizenship Clause when he says: "I
take it for granted that when a man becomes a citizen of the United
States under the Constitution he cannot cease to be a citizen, except
by expatriation for the commission of some crime by which his
citizenship shall be forfeited."

Secondly, Sen. Howard expressly stated, "I am not yet prepared to
pass a sweeping act of naturalization by which all the Indian
savages, wild or tame, belonging to a tribal relation, are to become
my fellow-citizens and go to the polls and vote with me and hold
lands and deal in every other way that a citizen of the United States
has a right to do."
The question begs: If Howard had no intention of passing a sweeping
act of naturalization--how does the court elevate Howard's
Citizenship Clause to a new constitutionally protected right that
cannot be taken away since this would certainly require a sweeping
act with explicit language to enumerate such a new Constitutional
right? Remember, the court cannot create new rights that are not
already expressly granted by the Constitution.

A third problem for the court is the fact both Howard and Bingham
viewed the Citizenship Clause as simply "declaratory" of what they
regarded "as the law of the land already." This then requires flights
of fantasy to elevate Howard's express purpose of inserting the
Citizenship Clause as simply removing "all doubt as to what persons
are or are not citizens of the United States," and not to elevate
citizenship to a new protected Constitutional right. Citizenship is a
privilege, not a right as say the right to freedom of religion is,
and therefore, can be taken away just as any other privilege can.
James Madison defined who America seeked to be citizens among us
along with some words of wisdom:
When we are considering the advantages that may result from an easy
mode of naturalization, we ought also to consider the cautions
necessary to guard against abuse. It is no doubt very desirable that
we should hold out as many inducements as possible for the worthy
part of mankind to come and settle amongst us, and throw their
fortunes into a common lot with ours. But why is this desirable? Not
merely to swell the catalogue of people. No, sir, it is to increase
the wealth and strength of the community; and those who acquire the
rights of citizenship, without adding to the strength or wealth of
the community are not the people we are in want of.[8]

What does it all mean?

In a nutshell, it means this: The Constitution of the United States
does not grant citizenship at birth to just anyone who happens to be
born within American borders. It is the allegiance (complete
jurisdiction) of the child's birth parents at the time of birth that
determines the child's citizenship--not geographical location. If the
United States does not have complete jurisdiction, for example, to
compel a child's parents to Jury Duty–then the U.S. does not have the
total, complete jurisdiction demanded by the Fourteenth Amendment to
make their child a citizen of the United States by birth. How could
it possibly be any other way?
The framers succeeded in their desire to define what persons are, or
are not, citizens of the United States. They also succeeded in making
both their intent and construction clear for future generations of
courts and government. Whether our government or courts will start to
honor and uphold the supreme law of the land for which they are
obligated to by oath, is another very disturbing matter.

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Footnotes
[1]. Congressional Globe, 39th Congress (1866) pg. 2890
[2]. Id. at 2893
[3]. Id. at 2895
[4]. Id. at 2893
[5]. Id. at 2897
[6]. Id. at 1291
[7]. Congressional Globe, 42nd Congress (1872) pg. 2796
[8]. James Madison on Rule of Naturalization, 1st Congress, Feb. 3,
1790.

Permission is granted to use, copy or republish this article in its
entirely only.

..those old timers really made sure their point was completely clear, down to crossing evert 'T' & dotting every 'i'.
I actually read every word (had to read some parts 2 or 3 times for it to sink in )
Not sure I ever truly appreciated the Constitution dudes before. Like so many things we take for granted.

The troubling part will be that the US Supreme Court has already ruled on this.

Anyone with access to info on how to remove them from the bench, if need be, other than Congressional Impeachment?

I don't know how you remove Justices from the SC.

So many people got all hung up about how the last two nominated justices stood on abortion. I suspect their nomination had nothing to do with abortion and a lot to do with how they would rule on things like immigration, wiretapping, etc.[/quote]

Thanks so much for this!!!