It should not take a Constitutional Attorney to explain to us that babies born in the U.S. to foreign parents, under the Fourteenth Amendment, do not have ‘birthright,’ the right to U.S. natural-born citizenship. But so many judges and courts have been in this fight that the lines are terribly and dangerously blurred. Ken Klukowski, a practicing constitutional attorney, and the legal editor at Breitbart offers his answer.
The Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal. Such conference IS NOT THE LAW, AND NEVER HAS BEEN THE LAW. Source: Breitbart
The words in the Fourteenth Amendment, on which everything turns, is “and subject to the jurisdiction thereof,…” Morph back to 1866 and the Civil Rights Act guaranteeing black Americans their right to be citizens of this country.
The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “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…
In 1884…The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens…
So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling…Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA [Immigration and Nationality Act, 1952] is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum. Source: Kuklowski for Breitbart.
In 1898, the U.S. Supreme Court granted naturalized citizenship to 25-year-old Wong Kim Ark, the San Franciscan-born child of Chinese “domiciled residents,” with allegiance to China, and subject to the Chinese Exclusion Act. For 25 years, Wong Kim Ark lived in the U.S. and had not sought to be naturalized. The parents eventually, permanently, left the U.S. to return to China. Wong Kim Ark’s citizenship changed everything for America.
The Federalist Blog points to the refusal of the 1898, Wong SCOTUS to allow the debates of Congress –– the recorded history –– to be admissible to the Court while they were fleshing out the Wong Kim Ark decision, based on the Fourteenth Amendment argument. In other words, they chose to be blind to the intent of the words “subject to the jurisdiction thereof,” preferring “within the limits and under the jurisdiction of the United States [Naturalization Act, 1790].” It would be interesting to know if Wong Kim Ark and/or his parents ever paid a dime in U.S. taxes.
Relating to deciding to be blind to evidence:
Here the court is assuming what Congress may have intended while also arguing the written debates that could easily disclose this intent is inadmissible as evidence. This has to be one of the most incompetent and feeble rulings ever handed down by the Supreme Court. ~ The Federalist Blog
Quoting a modern day Justice:
Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.” (Source: See above link to The Federalist Blog)
An interesting question from The Federalist:
Moreover, if everyone owed allegiance by simply being on American soil, then what was the purpose of having aliens renounce their allegiance to other countries and pledge their allegiance to this one for purposes of becoming naturalized? Perhaps the true answer is because locality itself was never enough to confer complete allegiance.
I encourage you to read the Federalist Blog article if this subject is of interest to you. Another good find is here.
Look at this bastardization: In 1982 in a challenge to the 14th Amendment, SCOTUS asserted that the “jurisdiction” of the parents, meant a “physical” presence, not an allegiance to the oath of their host country. This challenge was Plyer v. Doe. Texas attempted not to spend taxpayer monies educating aliens.
Whatever his status under the immigration laws, an alien is a “person” in any ordinary sense of that term. This Court’s prior cases recognizing that illegal aliens are “persons” protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase “within its jurisdiction,” cannot be distinguished on the asserted ground that persons who have entered the country illegally are not “within the jurisdiction” of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. Source
So, as happens all too often, the Supreme Court of the United States had (and has) it’s own agenda.
Winding this up, let’s move back to Ken Klukowski:
…denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment.
But Klukowski clarifies that while a U.S. president can rescind Obama’s executive amnesty, that amnesty (DREAM Act, or DREAMers) did not grant citizenship. In addition, those millions of anchor babies, already U.S. citizens, cannot have their citizenship taken away. Further, all aliens on U.S. soil have the right to due process, and it would take years and years for the court to wade through it all.
If the above readings of the law are accurate, and Congress can stop anchor baby status dead in its tracks, I suggest we make Congress make it happen. Better late than never.