Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional Debates

Opponents of birthright citizenship often cite fragments of the congressional debate over the Fourteen Amendment’s Citizenship Clause to argue that the amendment’s drafters intended to exclude the children of visiting foreigners.

However, reliance on these fragments is a mistake.

Opponents of birthright citizenship face a number of difficulties that have encouraged them to rely on those fragments. Among them:

* Language in the earlier Civil Rights Bill clearly excluding foreigners was deleted from the amendment. This change was not, as sometimes claimed, necessary to exclude tribal Indians.

* Any interpretation that excluded foreigners would undercut the principal purpose of the Citizenship Clause. That purpose was to grant citizenship to the newly freed slaves and their children. For reasons explained below, most (perhaps all) of those slaves were technically foreigners.

* As I explained recently, in two cases the U.S. Supreme Court has decided that the Citizenship Clause’s term “subject to [U.S.] jurisdiction” means subject to the English common law doctrine of “allegiance.” In general, that doctrine recognizes most children born in a country as natural born citizens, including the children of visiting foreigners. And in the more crucial case, United States v. Wong Kim Ark, the allegiance rationale was central to the holding, not mere “dicta” as sometimes asserted.

The best way to counter these problems would be to uncover evidence that state legislatures ratifying the Fourteenth Amendment understood “subject to the jurisdiction thereof” to exclude foreign visitors and their children. It is the understanding of, or meaning to, the ratifiers -- not the intent of the drafters -- that carries most weight in constitutional questions. Fragments from the congressional debates are not only weak evidence of meaning, but relying on them may be counterproductive.

The two most cited congressional comments are those by Senator Jacob Howard of Michigan and Senator Lyman Trumbull of Illinois, both proponents of the amendment. Howard’s comments have been taken as excluding all resident foreigners from the phrase “subject to the jurisdiction.” Trumbull said that the phrase meant “Not owing allegiance to anyone else.”

But anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous. He said the amendment’s phrase “subject to the jurisdiction thereof” would exclude:

persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of person.

This could mean that the exclusion covers “foreigners and aliens and those who belong to the families of ambassadors.” But also could mean “foreigners [or] aliens who belong to the families of ambassadors.” (Remember that the punctuation was not Howard’s, but the shorthand reporter’s.)

Via: American Thinker

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SMALL BUT HONEST COLUMNIST AGAIN FORCED TO CORRECT HIGHEST-RATED SHOW ON CABLE TV by Ann Coulter

To support his insane interpretation of the post-Civil War amendments as granting citizenship to the kids of illegal aliens, Fox News' Bill O'Reilly is now taking job applications for the nonexistent -- but dearly hoped-for -- Jeb! administration, live, during his show. 

(Apparently my debate with O'Reilly will be conducted in my column, Twitter feed and current bestselling book, Adios, America, against the highest-rated show on cable news.) 

Republicans have been out of the White House for seven long years, and GOP lawyers are getting impatient. So now they're popping up on Fox News' airwaves, competing to see who can denounce Donald Trump with greater vitriol. 

Last Thursday's job applicants were longtime government lawyers John Yoo and David Rivkin. 

In response to O'Reilly's statement that "there is no question the Supreme Court decisions have upheld that portion of the 14th Amendment that says any person, any person born in the U.S.A. is entitled to citizenship ... for 150 years" -- Yoo concurred, claiming: "This has been the rule in American history since the founding of the republic." 

Yes, Americans fought at Valley Forge to ensure that any illegal alien who breaks into our country and drops a baby would have full citizenship for that child! Why, when Washington crossed the Delaware, he actually was taking Lupe, a Mexican illegal, to a birthing center in Trenton, N.J. 

If one were being a stickler, one might recall the two centuries during which the children of slaves were not deemed citizens despite being born here -- in fact, despite their parents, their grandparents and their great-grandparents being born here.

Wouldn't anyone who wasn't applying for a job in the nonexistent, never-to-exist Jeb! administration remember slavery? 

Incongruously, Yoo also said, "The text of the 14th Amendment is clear" about kids born to illegals being citizens. 

Wait a minute! Why did we need an amendment if that was already the law -- since "the founding of the republic"! 

An impartial observer might contest whether the amendment is "clear" on that. "Clear" would be: All persons born in the United States are citizens. 

What the amendment actually says is: "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." 

The framers of the 14th Amendment weren't putting a secret trap door in the Constitution for fun. The "jurisdiction thereof" and "state wherein they reside" language means something. (Ironically, Yoo -- author of the Gitmo torture memo -- was demonstrating that if you torture the words of the Constitution, you can get them to say anything.) 

At least Rivkin didn't go back to "the founding of the republic." But he, too, claimed that the "original public meaning (of the 14th Amendment] which matters for those of us who are conservatives is clear": to grant citizenship to any kid whose illegal alien mother managed to evade Border Patrol agents. 

Whomever that was the “original public meaning” for, it sure wasn’t the Supreme Court. 

To the contrary, the cases in the first few decades following the adoption of the 14th Amendment leave the strong impression that it had something to do with freed slaves, and freed slaves alone: 

-- Supreme Court opinion in the Slaughterhouse cases (1873): 

"(N)o one can fail to be impressed with the one pervading purpose found in (the 13th, 14th and 15th Amendments), lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." 

-- Supreme Court opinion in Ex Parte Virginia (1879): 

"[The 14th Amendment was] primarily designed to give freedom to persons of the African race, prevent their future enslavement, make them citizens, prevent discriminating State legislation against their rights as freemen, and secure to them the ballot." 

-- Supreme Court opinion in Strauder v. West Virginia (1880): 

"The 14th Amendment was framed and adopted ... to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States." 

-- Supreme Court opinion in Neal v. Delaware (1880) (majority opinion written by Justice John Marshall Harlan, who was the only dissenting vote in Plessy v. Ferguson): 

"The right secured to the colored man under the 14th Amendment and the civil rights laws is that he shall not be discriminated against solely on account of his race or color." 

-- Supreme Court opinion in Elk v. Wilkins (1884): 

"The main object of the opening sentence of the 14th Amendment was ... to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States ... The evident meaning of (the words, "and subject to the jurisdiction thereof") is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. ... Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward, except by being naturalized ..." 

One has to leap forward 200 years from "the founding of the republic" to find the first claim that kids born to illegal immigrants are citizens: To wit, in dicta (irrelevant chitchat) by Justice William Brennan, slipped into the footnote of a 5-4 decision in 1982. 

So to be precise, what Yoo means by the "founding of the republic," and Rivkin means by "the original public meaning" of the 14th Amendment, is: "Brennan dicta from a 1982 opinion." 

Perhaps, if asked, the Supreme Court would discover a "constitutional" right for illegal aliens to sneak into the country, drop a baby, and win citizenship for the kid and welfare benefits for the whole family. (Seventy-one percent of illegal immigrant households with children are on government assistance.

But it is a fact that the citizenship of illegal alien kids has never been argued, briefed or ruled on by the Supreme Court. 

Yoo and Rivkin aren't stupid. It appears that the most significant part of their analysis was Yoo's legal opinion: "I don't think Trump is a Republican. I think actually he is ruining the Republican Party." Please hire me, Jeb!! (or Rubio)! 

O'Reilly could get more reliable constitutional analyses from Columba Bush than political lawyers dying to get back into government. 

COPYRIGHT 2015 ANN COULTER 

Via: Ann Coulter

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The Children of Illegal Immigrants Are Not Born American Citizens

Once again, Donald Trump has managed to open up a robust national discussion about an issue that up to this point had been largely ignored by the political class. This time, the discussion is about so-called “birthright citizenship,” the idea that whenever a foreign national (regardless of legal status and with a very few exceptions) has a child on American soil, this child automatically becomes an American citizen from birth. This approach to citizenship has been thede facto (though not de jure) approach to the issue of “anchor babies,” the children of illegal aliens who come to the United States so that they can have their children here, thus allowing the parents to remain as well, usually helping themselves to generous American benefit monies.

Defenders of unrestricted birthright citizenship - primarily found among liberals, establishment GOP types, and the more uninformed types of libertarians—adamantly argue from the 14^thamendment’s Citizenship Clause that birthright citizenship is not only legal, but is in fact constitutionally protected, and is what the 14^thamendment has meant all along. They often try to buttress their arguments by appealing to English common law with its historical provisions for birthright citizenship. However, is this sort of “swim a river, fill our quiver” approach really what the 14^th amendment meant? 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 14^thamendment, 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. If this had been the case, then the phrase under discussion would not have been included. Obviously, some limits were intended, those circumscribed by the intent of being “subject to the jurisdiction thereof.”

So what were these limits? Typically, it will be pointed out that the limits due to this jurisdictional issue were that citizenship was not being conveyed to children born of ambassadors and others aliens employed by their foreign governments, nor was it being conveyed to members of various Indian tribes which exercised sovereign powers within their own territories (this latter was rescinded by an act of 1924 which granted Indian tribes full American citizenship). Were these the only restrictions on birthright citizenship intended by the author and debaters of the 14^th amendment?

No, actually. Let’s understand what the original intention of the 14^th 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.” 

Via: Canada Free Press

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Don’t Like ‘Anchor Babies’? Try ‘Products of Deception’

The term ‘anchor babies’ isn’t the problem. The practice of granting birthright citizenship to illegal aliens is.

The overlords of political correctness have struck again. Evidently, it’s now a “hateful slur” to call the children of illegal immigrants “anchor babies,” a long-held designation to describe how automatic citizenship bestowed on the children of illegal immigrants becomes a powerful magnet for people entering and staying in the United States illegally.

Last week, Hillary Clinton attacked Jeb Bush for using the term, saying it’s offensive and that anchor babies are simply “babies.” Donald Trump scoffed at that and refused to give in to the easily offended speech police. Louisiana Gov. Bobby Jindal had the best response, tying Clinton’s comment to the abortion industry’s harvesting of organs from aborted babies.

“You know what I find offensive is Hillary Clinton, the Left, when you look at those Planned Parenthood videos—they refuse to call them babies, they call it fetal tissue, they call them specimens,” Jindal said. “That’s what’s offensive.”

After the Center of Medical Progress released the videos, defenders of abortion came out swinging, saying they aren’t “babies” but“products of conception“—a nice, clean, politically correct term that dehumanizes unborn children so the consciences of abortionists can be dulled as they chop up and crush the arms, legs, bodies, and heads of human babies.

Let’s Call Them Products of Deception

So, here’s a suggestion—for the sake of consistency among those on the Left. Let’s start calling anchor babies “products of deception,” because that’s exactly what they are—they’re children used by their parents to deceive American citizens in order to abuse and take advantage of our generosity.

It’s not meant to judge the character or value of the children themselves, but only to describe their role in illegal immigration practices.

Illegal immigrants, and even tourists who come to the United States for the fraudulent purpose of delivering their children on American soil, use their babies as tools to remain in our country and often to get freebies from our welfare system and to bring in more family members through chain migration. They do this despite the Fourteenth Amendment offering no legal support for this practice and no court in American history ever holding that the children of illegal immigrants have the right to automatic citizenship. Yet, somehow, this practice has administratively slipped into our system. Now, illegal aliens are taking advantage of it in droves.

Note that the emphasis here is on illegal aliens—a point often lost in the debate over birthright citizenship. When advocates for immigration reform say the United States must end “birthright citizenship,” they are talking about citizenship for the children ofillegal immigrants and those committing fraud on the American system, not for children of legal immigrants, and certainly not for people who have already been granted citizenship (see the grandfather clause in the Birthright Citizenship bill HR 140). They are talking about the practice of giving automatic citizenship to the children of illegal immigrants who are not subject to the jurisdiction of the United States but are citizens of another country.

Via: Continue Reading.....

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The Constitution Still Doesn’t Grant Birthright Citizenship

To support his insane interpretation of the post-Civil War amendments as granting citizenship to the kids of illegal aliens, Fox News’ Bill O’Reilly is now taking job applications for the nonexistent — but dearly hoped-for — Jeb! administration, live, during his show.

(Apparently my debate with O’Reilly will be conducted in my column, Twitter feed and current bestselling book, Adios, America, against the highest-rated show on cable news.)

Republicans have been out of the White House for seven long years, and GOP lawyers are getting impatient. So now they’re popping up on Fox News’ airwaves, competing to see who can denounce Donald Trump with greater vitriol.

Last Thursday’s job applicants were longtime government lawyers John Yoo and David Rivkin.

In response to O’Reilly’s statement that “there is no question the Supreme Court decisions have upheld that portion of the 14th Amendment that says any person, any person born in the U.S.A. is entitled to citizenship … for 150 years” — Yoo concurred, claiming: “This has been the rule in American history since the founding of the republic.”

Yes, Americans fought at Valley Forge to ensure that any illegal alien who breaks into our country and drops a baby would have full citizenship for that child! Why, when Washington crossed the Delaware, he actually was taking Lupe, a Mexican illegal, to a birthing center in Trenton, N.J.

If one were being a stickler, one might recall the two centuries during which the children of slaves were not deemed citizens despite being born here — in fact, despite their parents, their grandparents and their great-grandparents being born here.

Via: Daily Caller

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People have had it with Immigration Excuses by Thomas Sewell

One of the most lame excuses for doing nothing is that we can't do everything. Such excuses have been repeated endlessly, even by some conservatives, when it comes to illegal immigration.

We can't deport millions of illegal immigrants already living in the country, some say, so the wise thing is to just learn to live with them, according to the supposedly sophisticated crowd.

This completely sidesteps the plain, obvious and galling fact that we are not deporting those illegal immigrants who are arrested by the police for violating other laws -- and are then turned loose back into American society. In so-called "sanctuary cities" across the country, local police are under orders not to report illegal immigrants to the federal authorities.

Nobody has a right to obstruct justice when it comes to federal laws -- not even the President of the United States, as Richard Nixon discovered when he had to resign after Democrats threatened him with impeachment and Republican Senators told him that they would not defend him.

Today, any mayor of any city of any size across the country can publicly announce that he is going to obstruct federal laws against illegal immigrants -- and then bask in a glow of self-satisfaction and the prospect of winning votes.

Even people who are gung-ho to punish employers who do not take on the role of immigration police, for which they have neither training nor authority, are often ready to overlook elected officials who do have both the duty and the authority to uphold the laws, but openly refuse to do so.

The federal government itself, under the Obama administration, has refused to enforce immigration laws, and has ordered its own agents to back off when it comes to enforcing some laws that President Obama happens not to like.

Then there is also what might be called the pretense of enforcement -- when people who have been caught illegally entering the country are turned loose inside the country and told to report back to a court later on. How surprised should we be when they don't?

One of the most widely known abuses of the immigration laws is the creation of "anchor babies" to get automatic citizenship when a pregnant woman simply crosses the U.S. border to have her child born on American soil. This is not limited to people who cross the Mexican border. Some are flown in from Asia to waiting posh facilities.

Not only do their children get automatic American citizenship without having to meet any requirements, this also increases the opportunities for other family members to gain admission later on, in the name of "family reunification."

This is such an obvious racket, and so widely known, for so long, that you might think our "responsible" leaders would agree that it should be stopped. But, here again, there are excuses rather than action. One distinguished conservative commentator even said recently that this is such a small problem that it is not worth bothering with.

The anger of Americans who feel betrayed by their own elected officials is not a small thing. It goes to the heart of what self-government by "we the people" is supposed to mean.

To say that it is a small thing is even worse than saying that we can't do anything about it. We certainly can't do anything about it if we won't lift a finger to try.

Some legal authorities say that the 14th Amendment confers automatic citizenship on anyone born on American soil. But the very authors of that Amendment said otherwise. And some distinguished legal scholars today, including Professor Lino Graglia of the University of Texas Law School, say otherwise.

Even if it were necessary to revise the 14th Amendment, it is sheer Progressive era dogma that Constitutional Amendments are nearly impossible to revise, repeal or create. There were four new Constitutional Amendments added in just eight years, during the height of the Progressive era in the early 20th century.

But it is indeed impossible if you are just looking for excuses for not trying. Republicans who are worried about Donald Trump should be. But their own repeated betrayals of their supporters set the stage for his emergence. This goes all the way back to "Read my lips, no new taxes." 

Via: Real Clear Politics

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The Most Important Redistricting Case in 50 Years

In a pair of cases decided in 1964, the Supreme Court of the United States famously established the “one person, one vote” test. This meant that all congressional districts would be required to have the same number of people, while state legislative districts must have roughly the same number. The consequences of those decisions were both immediate and far-reaching. A wave of mid-decade redistricting swept the country, as virtually every congressional and legislative district had to be, at a minimum, tweaked to account for population discrepancies. Rural districts in particular lost representation, while the depopulation of urban centers helped usher in the rise of the suburbs in Congress.

Last week, the Supreme Court shocked watchers by agreeing to hear a case that could have consequences of a similar magnitude. In 1966, in a follow-up to the Reynolds v. Sims decision, the court had held that states did not necessarily need to use persons as the basis for their representation schemes. Since then the court has at times been asked to adopt various different metrics. It generally resisted these entreaties, although Justice Clarence Thomas has, at times, urged the court to take up these cases.

So most were caught off guard when the court decided to take up Evenwel v. Abbott. The plaintiffs in that case asked the court to clarify that onlycitizens should be counted for purposes of drawing legislative districts. The “why” of this is a bit complex, but it grows out of a (superficial, in my mind) tension between the 14th Amendment, which apportions voting districts on the basis of population, and the Voting Rights Act, which requires that states ensure there are a sufficient number of citizens of voting age in a given group to enable that group to elect a candidate of its choice.

If the court were to find for the plaintiffs – and it seems unlikely that the court would have gratuitously taken up this case, absent a circuit split, if there weren’t some substantial support for the plaintiffs’ position – it would mean that, once again, virtually every legislative and congressional district in the country would have to be redrawn (although this would not, as some have suggested, affectapportionment – i.e. the number of seats allocated to each state). This would occur at a time when Republicans control a record-high number of state legislatures and a majority of state governments. Republicans would be able to update their maps to account for changes in political orientations in their states since the previous round of redistricting.

But this would have implications for Democratic-controlled states as well. Consider that in 2012, counties with high citizen populations were more likely to vote for Mitt Romney (the t-stat is 9.047). Of the 35 states with four or more congressional districts, there was a statistically significant, positive correlation between the share of county residents who were citizens and the share of voters who cast ballots for Mitt Romney in 18 of the states, most of which are among our largest: California, Colorado, Florida, Illinois, Indiana, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nevada, New York, Ohio, Oregon, Pennsylvania, Texas, Virginia and Wisconsin.

Via: Real Clear Politics

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MSNBC’s Ed Schultz Jabs at Fox’s The Five

At the conclusion of a Wednesday Ed Show segment, MSNBC host Ed Schultz took a jab at his Fox time slot competitor The Five, mocking that the subject matter contained within his discussion was “over their heads.”

“I know this is over The Five‘s head across the street,” Schultz said after a discussion with Joan Walsh about their belief that Obamacare will benefit most Americans in the long-run, despite Republican protests to the contrary.

“And I know they need five people to talk about it,” he concluded, “I just need Joan Walsh and me.”

Watch below, via MSNBC:

Via: Mediaite.com

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Antonin Scalia: 14th Amendment Protects Everyone, Not 'Only The Blacks'

During oral arguments on an affirmative action case on Tuesday, Supreme Court Justice Antonin Scalia said the 14th Amendment protects everyone, not "only the blacks."

The quote was tweeted by the New York Times' David Leonhardt:

The high court debated Tuesday whether voters can ban affirmative action programs through a referendum. The case is centered around a 2006 Michigan vote that approved a ballot initiative amending the state's constitution to ban affirmative action programs in higher education.

Scalia has brought race into previous arguments. In February 2013, Scalia suggestedthat the continuation of Section 5 of the Voting Rights Act represented the "perpetuation of racial entitlement," saying that lawmakers had only voted to renew the act in 2006 because there wasn't anything to be gained politically from voting against it.

Via: Huffington Post Politics

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