By Mark Alexander · Thursday, August 26, 2010 http://patriotpost.us
Only if your mother was “subject to the jurisdiction thereof” (Ciudadanía por Nacimiento — sólo si su madre estaba sujeta a su jurisdicción)
“The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.” –George Washington
Coming to America
Given the far-reaching implications of illegal immigration, and more recently the Left’s objections to enforcing immigration law in border states like Arizona, the 14th Amendment of our Constitution is receiving some long-overdue attention.
Like every contemporary political debate, the questions raised concerning the meaning of the 14th Amendment are, essentially, about whether we are a nation subject to Rule of Law codified in our Constitution, or we are subjects under the rule of men, subject to a “living constitution” amended primarily by judicial diktat and legislative mischief, rather than amended by the people, as prescribed in Article V.
Does the 14th Amendment mean what its framers intended and the states ratified, or does it mean whatever the courts and Congress have construed it to mean today?
Section 1 of the 14th Amendment, which pertains to immigration and naturalization, reads, “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.”
To discern the authentic meaning of this amendment as originally intended by its framers, we must first start with its plain language, and then further examine the context under which it was proposed and passed. Any debate about the authority of our Constitution must begin with First Principles, original intent.
“All persons born or naturalized in the United States…”
This language is plain and easily understood.
“[A]nd subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This language, too, is plain and easily understood, unless there is a contemporary Leftist political agenda, which does not comport with that understanding, in which case benefactors and beneficiaries of that agenda will interpret (read: misconstrue) it to fit their purposes.
So, what does “subject to the jurisdiction thereof” actually mean? Beyond the apparent plain language definition, a factual interpretation is supported by the context in which this amendment was framed and ratified.
After the War Between the States, freedmen (former slaves) may have been liberated by Abraham Lincoln’s 1863 Emancipation Proclamation, but they didn’t enjoy the same rights as those who freed them. Though slaves were in the United States legally, and thus, “subject to the jurisdiction thereof,” they had no assurance of equal rights.
The Civil Rights Act of 1866 was designed to rectify this injustice by noting in part, “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. … All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
The first definition of “citizenship” in legal references is “nationality or legal status of citizenship.”
The 1866 act defined “persons within the jurisdiction of the United States” as all persons at the time of its passage, born in the United States, including all slaves and their offspring.
However, concern that the Act might be overturned by a future Congress motivated its sponsors to make it more resistant to the arbitrary rule of men, so they proposed the 14th Amendment to our Constitution, which upon ratification, would protect the provision of the 1866 Act from legislatures and the courts.
Michigan Sen. Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (the Citizenship Clause), noted that its provision, “subject to the jurisdiction thereof,” excluded American Indians who had tribal nationalities, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”
According to University of Texas legal scholar Lino Graglia, the second author of the Citizenship Clause, Illinois Sen. Lyman Trumbull, added that “subject to the jurisdiction of the United States” meant “not owing allegiance to anybody else.”
Thus, in the plain language of its author, those who are born to parents who are legally in the U.S., who have no allegiance to a foreign power (as diplomats), are thus, “subject to the jurisdiction thereof,” and have claim to birthright citizenship. Just as plain is the fact that the 14th Amendment would exclude those born to illegal aliens.
Despite the confidence of the 14th Amendment’s authors that it wouldn’t be subject to legislative and judicial mischief, subsequent generations of legislatures and judges have so twisted its plain language as to all but alienate it from its original intent — as they have likewise done with the rest of our Constitution.
For that reason, House Minority Leader John Boehner (R-OH) is now proposing a measure to restore the original intent of the 14th Amendment’s Citizenship Clause by way of another amendment.
The problem is that Boehner and likeminded conservatives still erroneously rely on the Rule of Law, an assumption that our Constitution is still the Supreme Law of the land. Unfortunately, it has been thoroughly subordinated to the rule of men.
Where does that leave the birthright citizenship debate?
Today, more than 20 percent of all children born in the United States are born to those who have entered the United States unlawfully, and who are, by any authentic definition of the 14th Amendment, NOT subject to the jurisdiction of the U.S. because they are not citizens. Yet Barack Hussein Obama and his Socialist Bourgeoisie assert that the “anchor babies” of illegal immigrants are owed all the entitlements of an American citizen.
The near-term consequences of this fallacious assertion have dire implications for the future of Liberty, for the Rule of Law, and for the very survival of our nation. But this is consistent with Obama’s objective of “fundamentally transforming” our nation by breaking the back of free enterprise, which is a foundational component of Liberty.
In 1776, Benjamin Franklin, John Adams and Thomas Jefferson proposed the national motto, “E pluribus unum” (“Out of many, one”), but that unity will not last much longer if we do not take dramatic action to restore the Rule of Law.
In 1919, Theodore Roosevelt penned these words: “We should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet an American, and nothing but an American. There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag. We have room for but one language here, and that is the English language … and we have room for but one sole loyalty and that is a loyalty to the American people.”
Now, writes Graglia, “It is difficult to imagine a more irrational and self-defeating legal system than one which makes unauthorized entry into this country a criminal offense and simultaneously provides perhaps the greatest possible inducement to illegal entry,” making a child born to that immigrant “an American citizen, entitled to all the advantages of the American welfare state.”
For the record, according to both the Justice Department and Homeland Security, “A person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the 14th Amendment.”
So, according to current laws and regulations, consistent with the original intent of both the 1866 Civil Rights Act and the 14th Amendment as duly ratified on 9 July 1868, the child of a diplomat born in the United States, though that diplomat is legally on U.S. soil, has no birthright entitlement to citizenship.
However, according to Obama and his Leftist cadres, inconsistent with both the 1866 Civil Rights Act and the 14th Amendment, a child born to anyone who enters the U.S. illegally has a birthright entitlement to citizenship.
Which will it be, then: Rule of Law or the rule of Obama?
Finally, the true interpretation of the jurisdiction clause of the 14th amendment is spoken. The 14th doesn’t need to be amended or repealed. Just like the commerce clause it only needs to be interpreted honestly.
Posted August 26, 2010
Approximately 6 million adopted persons in the US today cannot prove their are American citizenship because their birth records are sealed in all but 6 states. Some cannot receive passports, drivers licenses, pensions, Social Security, professional licenses, and security clearances. International adoptees, adopted by US citizens, can be subjected to arrest, detention and deportation because 30, 40,50 years ago adoptive parents, adoption agencies or lawyers, or government agencies did not follow proper legal procedures. Several international adoptees have been deported. One was murdered in his “home” country which he left when he was a few months old. One mentally disturbed US- born adoptee was deported to Mexico simply because he told authorities he was Mexican and nobody checked.
When will “patriots” stand up for the right of birth records and identity for adopted persons?
Posted August 26, 2010
I appreciate Mark’s perspective – as well as the opinion of other Americans who struggle with this issue.
I grew up in Florida. I currently reside in Texas, and I have lived in Arizona. I have experienced this issue first-hand but my opinion is contrary to Mark’s and many of my fellow conservatives.
The concept of “legal” or “illegal” immigrant is a relatively new one as you outline in your essay. Your quotes from George Washington and Theodore Roosevelt are both spot-on in my view.
To me, the issue is not about how an individual comes to our great nation; the issue is about what they do – e.g. their contribution – when they get here and, as importantly, the welfare state that currently exists for exlpoitation.
Is the issue really the individual who enters are nation – through whatever means they can looking for opportunity – or is the issue a welfare system that provides them a free lunch on the back of the American taxpayer?
I know it’s a cliche but every current US citizen has their roots from somewhere. Yes, even the “Native Americans” immigrated here from Asia – walking across the Bering Strait. So, we are all immigrants and there were no laws defining “legal” versus “illegal” for most of our ancestors when they arrived.
Yet, there was no welfare state in 19th century America either. To me, the WELFARE STATE is the issue here; not the individual entering our nation seeking opportunity.
Yes, we can wall our borders and break from our founding fathers’ intent but we will not “fix” what ails us. The best medicine is an absolute REMOVAL of the welfare state, and, then, allow any individual open access to COMPETE in our society.
To compete, anyone has to know the national language – English – and the laws, et al but I bar no one from access to competition based on their national origin. I simply will not support them with a socialist, nanny state. My two cents… Have a great day.
Posted August 26, 2010
Re: Birthright citizenship It is simple: The welfare class is the largest socialist liberal voting bloc!
They could care less about the constitution as long as what they do keeps them in power.
Obviously to them, it is the “rule of men” or the Socialist traitors who line the once sacred halls of our former free, democratic and capitalist society. Vive la revolution!
Richard A Johnson
It seems to me that the point is that if someone enters the United States illegally, that person has citizenship and loyalty to some other country and not ours. That, therefore, puts them in the same category as a diplomat in regard to the citizenship of those illegal’s children born here.
Great article and mostly true. The one glaring untruth is that Lincoln did not free the slaves with the emancipation proclamation. He freed the slaves in those states and parts of states that were in armed conflict with the United States. He did not free the slaves where he was in control. Proper history is important. It should not be skewed.
I think there is a very simple remedy to the abuse of the Fourteenth Amendment by illegal immigrants and the left. Each state currently registers live births. At the hospital, the mother is asked to fill out an application which is forwarded by the hospital to the appropriate agency.
States can require that the applicant mothers provide proof of legal residence in their state.
No proof — no birth certificate. The consequence is no passport and no proof of citizenship.
I would be willing to bet that any state implementing this policy would see a notable reduction in immigrant births immediately.
Questions? Are anchor babies subject to the jurisdiction thereof? Their parents aren’t or they would not be here. Can someone commit an illegal act (illegal immigrant) and gain from it? No. Historically, common law dictates that a child has the citizenship of the mother.
Richard L. Kent, Esq.
So the Constitution doesn’t say what it says it says?
We all want to retch when the Supremes use the ‘umbras and penumbras’ of the Constitution to justify prenatal infanticide. So why do you find it tolerable to do the same thing here? Who are you to deny the plain meaning of the Constitution?
The 14th amendment is clear as a bell. It says when a ‘person’ is ‘subject to the Jurisdiction thereof’ then they are a citizen. NOT his mother. They. Them. Themselves.
Those wanting to retroactively rescind the citizenships of their fellow citizens should beware. The same can one day be done unto YOU.
IT SAYS WHAT IT SAYS. If you want to change it, amend it. If you can’t amend it, LIVE WITH IT.
I remind the reader that the 14th Amendment was America’s answer to the Dredd Scott decision. Wherever he is now, Justice Taney is laughing about this… if he isn’t weeping.
Philip M. Kober, JD, MD, PhD
The only thing that counts in statutory or in this case Constitutional interpretation is the plain meaning of the words. Going to the “context” in which an amendment was passed is not done unless the words are ambiguous. In this case that is not the case. Even children of undocumented immigrants who are born here clearly are subject to the jurisdiction of the US. So are people who are legally visiting here — that is they can be summoned into court, etc., be required to pay certain taxes such as sales tax, if they are legally working here they are required to pay income tax (illegals get away with avoiding income tax). In short the only people who seem to be excluded from this rule of law are those with diplomatic immunity and the like. The Supreme Court has already ruled on this in connection with Chinese immigrants more than 100 years ago. And you and others who are now trying to twist the language of the 14th Amendment are the ones who are wrong. Bigots like you notwithstanding, we should change our attitudes and our policies to be the welcoming society that welcomes even those from Mexico who are simply looking for a better way of life.
Posted August 26, 2010
As a daily reader of the Patriot Post, this issue is one I disagree with the Post quite distinctly. My primary problem with the entire issue of not granting citizenship to babies born here is the fact that you cannot and should not hold the sins of the father against the child. The whole concept is offensive to me. Why did their parents come here? For a better life, as virtually all immigrants have done since the 1800’s. The comments held by the lady in the harbor are as inspiring today as they were 100 years ago. My main issue is the lack of all political parties from getting the issue settled. Why no guest worker program? Most CA field workers stay because it’s too risky to get back when it’s harvest time. This example is but one ‘immigration issue’ that could have easily been solved long ago.
America is a country of immigrants and always will be. America’s govt needs to get the path to citizenship spelled out, and soon. Illegal, yes, but I cannot but admire them as they have done what my ancestors did 100+ years ago. They gave it all up for a shot at what America had to offer. I simply can’t hold that against their children.
Posted August 26, 2010
America will be NOTHING more than a Socialist democracy if the Rule of Law codified in our national Constitution is allowed to languish.
Marley, Technically children from other countries who are adopted by Americans should not be American citizens nor do I think they should be. They are no more intitled to automatic citizenship than Mexican “anchor babies”. They should have to go though the naturalization proccess just like any other foriegn born resident.
My wife came over from Germany and had to. You should ask her some time about the naturalizattion test. If you’re anglo you must be fluent and test in English. If you’re anything else you can test in whatever language you call native. Talk about affirmative action!
Posted August 26, 2010
The entire Birthright Citizenship article should be required reading for all Judges throughout the US. Not just read, but acted upon.
Believe you placed the incorrect date in the following: “In 1919, Theodore Roosevelt penned these words:”
As Teddy died on Jan. 6, 1919 – doubt that this is a 1919 quote. Could not locate quote – but it sounds like a quote that woud have been made in 1910.
It is time to ammend the 14th. It was never the intent to function as it is now as “Anchor Babies)that provide citizens benefits to illegal entrants. With 20% of births now of this category we need to protect our increasingly fragile citizens support systems.
Why fool around with the 14th Amendment? We should change the way we treat immigrants who have no connection to America other than through a blood relationship. There should not be special immigration status advantage given to relatives either naturalized on native born in this country. This will not eliminate having children in this country, but it will discourage it.
Well Dale, if the constitution is no longer valid what’s to keep us from marching, armed to the teeth, on Washinton to kick congress and the Prez out of their invalid offices???
Norman- we are a hyphenated country because those of foreign descent are self-hyphenating. There are special priveledges associated with minority status. People aren’t coming here to be American, they’re coming here to exploit victim status. They are coming to ride the wagon, not pull it.
Trent, are you suggesting that being born in a country other than the U.S.A. is a “sin”? Personally I think allot of these folks ought to stay home and fix there own country instead of coming here to exploit ours. Immigrants aren’t coming here to assimilate anymore. They come with foreign misconceptions and want to transform America into Balkanized little sections of their old countries. Quite honestly, I think we need to put about a ten year moritorium on all immigration. Escaping to America has become too easy. If foreigners have to stay home and fix their own mess then maybe our military won’t have to go fix it for them so often. Don’t visit the sins of their fathers on us!
Let me first qualify my feelings about people wanting to become Americans, I’m all for it but as Teddy Roosevelt, not Franklin said we have room but for one Flag and one Language, you become American and Nothing else, this does not mean ou deny your heritage, but you owe allegance to the United States, if you become a Citizen.
Wow, even Conservatives miss the point. THEY ARE ILLEGAL. PERIOD. My parents came to this country in the late 50’s, had to be hosted by family memebers, LOVED THIS COUNTRY, ASSIMILATED AND RAN TO BECOME CITZENS THE MINUTE THEY COULD. Sorry to yell but they took so much hardship because Freedom was worth it to them. They were children under Musolini during WWII. I could tell you stories about WWII and I am 48. It is not that Americans don’t want these folks to succeed but go through legal channels. Shoot, I dont have to tell this group, I am sure of this, life is hard. But the value of being a Citizen is worth it. BTW, my parents speak better English than I do. I am so proud of them. 8th grade educated now millionares! xo
J W Cotter
A small point. You say, “After the war…, freedmen(former slaves) may have been liberated by Abraham Lincoln’s 1863 Emancipation Proclamation, but…” Actually, the slaves weren’t freed by the proclamation. Lincoln issued that as Commander in Chief of the armed forces and considered it his perogative as a tactic against the enemy. The slaves that existed in the border states or territory controlled by the Union weren’t included. Lncoln had some doubts that it would be recognized as constitutional by the courts after the war
I always enjoy your work. There are two issues involving this essay that I question. First, isn’t there some honest debate about the ratification process of the “14th Amendment”? Was it constitutionally ratified or deemed passed?
Second, The Emancipation Proclamation was enacted to have effect only in the areas of the sovereign States of the Confederacy that were not already occupied by the troops of Lincoln. The areas under federal occupation and as well as the states that were part of the union (including the territory of Virginia which was admitted to the union as a slave state – West Virginia) were exempt from the proclamation. No slaves were set free by Lincoln. The 13th Amendment freed all slaves (including those of General Grant’s family) in late 1865. The Emancipation Proclamation was enacted as a foreign policy tool and claimed to control a situation in another country. (England was considering supporting the Confederacy, but would not support the South if the war appeared to be about slavery.) It would be similar to the EU declaring that all real property rights in Tennessee would expire at midnight tonight.
Just some of my thoughts. Thanks for addressing the immigration issue and all that you do. God bless.
In El Paso bullets from the drug war in Juarez are hitting buildings, namely City Hall and the UTEP campus.
Last week they had to close streets in America because of a shootout in Mexico.
In Arizona a rancher and Sheriff’s Deputy were killed by Mexican drug runners.
I’ve seen footage of human pack trains, hauling drugs, being escorted by machine gun toting coyotes 80 miles inside our country.
Sections of American soil have been closed off to Americans because Mexican crimminals have taken it over.
Mexicans have turned an American city into the kidnapping capitol of the world.
The Mexican army confronts our Police and our Border Patrol in our country.
They run interferance for the cartels excursions into our country.
Mexican commandos(zetas) assasinate American citizens on American soil.
When is enough going to be enough??? Is our own government just waiting for us to become desensitized to this situation too? This is absolute bullsh*t!!!
I have long thought that one of the requirements for a supreme court justice should be that they be able to read plain english with comprehension. Perhaps this should be the only requirement. If they could read the constitution, most of the problems would go away.
It is actually a sad comment on our culture when laws trump human dignity and history. Mexicans (latinos) were here (in the US) before the Irish, Italians, English… historically. In our Orwellian double speak state of mind we believe that they are wrong for living in the land where their culture originated and ancestors lived. I hate this new nazi standard conservatives are projecting. Human dignity and rights didn’t start with Thomas Jefferson, George Washington and the US. Those prinicpals are found in the hearts of most people. Fear those who worship the government and its laws who lack the courage to change them for they oppose the intent of our founding fathers and are our greatest threat as US citizens.
If you want to witness a great indignity to human rights, discard the Rule of Law for the rule of feelings. The Founders did provide a method for amending our Constitution, as outlined in Article V. If you want to change the 14th Amendment and abolish U.S. borders, start a petition. I most certainly do NOT worship government, and clearly distinguish between government and Rule of Law. As for the “nazi” comparison, as you might recall, they were Socialists, and killed millions of Jews and other innocent folks — hardly what anyone is prescribing in the case of illegal immigrants and the law. Ignorance of the law is the greatest threat to the U.S. and its authentic citizens.
The quote from Theodore Roosevelt is from 1907. A friend sent me this personal observation:
“I am so sick of these cry baby immigrants today… When my parents came over they came over for a reason… To provide their children an opportunity for a better life, not to ENRICH the coffers of the country they came from.
“Do you know the penalty for being an illegal immigrant in Mexico? Felony punishable with a 10 year prison term. Did you know Mexican Army is deployed along Guatamalan border and they shoot to kill???”
David, Charlotte, NC
Regarding your essay on Birthright Citizenship, I think you will find this article revelant. (Although you probably have read it.)
Keep up the good work in informing the patriots on the state of the Country!
Finally, the idiocy of our current practice of anchor babies is being critically examined. A few decades late, but better late than never. Hopefully the November elections will reflect a new-found realization that if things continue as they now are, this nation is doomed. The Democrat Party “leaders” have reinvented the party into a Socialist Party, but too few of the rank and file Democrats realize it. They’re catching on, though. Since the “Democrat” Party rules its members with an iron fist, with threats of loss of privileges for any Dems who don’t toe the party line, any Dem’s personal beliefs aren’t allowed to influence his voting. The only solution is to boycott all Democrats on the ballots this November and allow the country to repair the damage before it’s too late. Vote Republican, even if you don’t fully agree with the candidate. The lesser of the 2 evils is the Republican on the ticket.
My mother’s family came over here early and those descendants fought at Concord and Bunker Hill, and
in every war since. My father’s family was different. My greatgrandfather was a leader in the
original Kaiser’s army, (not Kaiser Wilhelm). He saw
how the Mauser was used against the Prusians and
their muskets, and how his men said it was like
“shooting fish in a barrel.” Hundreds of Prusians
were killed and he lost less than a handful of men.
It sickened him so much that he went to the Kaiser
and asked if he who had led troops so successfully
17 times in battles before could retire from the
Army. He was granted permission and sent the family
on ahead to America, coming on a later boat with some livestock. He was the poorest farmer in the
county, but raised many kids and died at 93 a happy
american who came to this country the right way. Do
what is right and God will bless you.
This issue has never been more clearly explained. No rational person, who calls himself an American patriot could disagree. Keep up the good work on behalf of all of us who support the rule of law Semper Fidelis,
Rick Inghram Colonel, USMC, retired
Very good article, but guess what! The 14th Amendment does not exist. It is the biggest hoax to have ever been adopted by the U.S. Congress. The 14th Amendment was “rejected” by more than one-forth of the States in the year of 1867 and thus it failed ratification. For details and proof, see web site: http://www.14th-amendment.com
Be sure to read the “Introduction” and “Proclamation.”
@Norman – so following your logic, if I give birth in Switzerland my child is a Swiss citizen? I don’t think so.
Yes, we were all Americans but some of us are more legal than others. I don’t want to pay for those who are illegal and I don’t want their illegality to alter the political outcome of the voting process. I do not want perennial democrats in power or a president for life. We need checks and balances, we have lost that. Mexican and muslim demographics are going to change the face of America drastically because liberals welcome everyone, no borders, no limits, as long as it is paid for with someone else’s money.
Reply to True Patriot:
I haven’t been following your entire debate with Mark over the 14th Amendment, but at least, in your latest comment, I think you show some true ignorance. I feel for Mark as it is usually fruitless to put up solid debate, based on facts, as I believe he was doing, against statements of feelings, as I believe you were doing.
1. I believe Mark probably does know the intent of the 14th Amendment’s author. Those who craft bills don’t live in a bubble. They must explain their work and debate it with others as the need arises. Their work and intentions are a matter of public record.
2. Ditto for the 2nd Amendment. The intent is a matter of public record. One need only take the 2nd Amendment into historical context to understand why it was included. The American Revolution was won with an armed populace. Volunteers came off the farm fields. Do you think it was simply a coincidence that the 2nd Amendment was ratified only 8 years after the end of the war? I’m not a history major but I believe that before the war, British soldiers were told to begin disarming the public – an action not unlike what can be expected from Liberals, socialists, communists, and dictators. History proves it.
3. Assault weapons! Now I understand your level of ignorance. “Assault weapons” is a misnomer since the term has been severly and intentionally bastardized by the American Left. Look up Marlin Glenfield model 60 on the internet. This squirrel-gun can be considered an assault weapon by the Liberals, yet it is designed for shooting varmints and for casual plinking, and this gun is designed as a suitable first semi-auto rifle for youth!!!
True assault weapons are “select fire” weapons for military use. As such, the U.S. military is the only appropriate entity to define “assault weapon”, not you nor I, and certainly not the likes of a good many of our legislators.
Why should we trust the government to enforce any post-reform laws any more than they enforce the present laws? Secure the border first, then talk about immigration reform after that.
Israel knows how to build a fence, ditto Germany, ditto Russia; the Chinese know how to build a wall, and all the geniuses in Washington, DC still can’t figure it out?
Can you cite any precedent in the Constitution or Founding document supporting gay marriage? Does the Federal government have even any jurisdiction under the principle of enumerated powers?
Posting the Ten Commandments in schools is not a threat to religious freedom and does not violate the establishment clause any more than the frieze above the entrance to the Supreme Court. Most colonies had an established religion. Maryland – Roman Catholic; Pennsylvania – Quaker; Virginia – Anglican; Massachusetts – Puritan; Rhode Island – Baptist, etc. The Establishment Clause forbids Congress from establishing a religion like Mother England’s Anglican church – both Jefferson and Monroe cited Roger Williams, Rhode Island’s founder, for advocating the principles of religious liberty. Williams fled the the Plymouth Colony before being deported by the Puritans. The Constitution could never have been ratified without a consensus that no denomination would be favored over the other.
Learn your history and your Constitutional precedent.
Thank you Hamilton for helping enlighten True (or is it Troll) Patriot, who is doing his best to divert attention from the 14th amendment to the 2nd.
Howard Metzenbaum of Ohio & Edward Kennedy of the People’s Republic of Massachusetts wanted to make me a felon for owning a Ruger 10/22 because it is semi-automatic and holds a 10 round clip. Even though, in the case of Clinton/Reno vs. Branch Davidians in Waco, Posse Comitatus was waived in order for US Army tanks to be used to besiege the compound. If the rule of man, such as was shown, can set tanks against citizens, shouldn’t the citizen have the natural right to defend themselves against such a government?
Since you are clearly misinformed about the nature of what constitutes a militia, let Thomas Jefferson clarify it for you, from Article XIII Virginia Declaration of Rights, June 12, 1776 “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state;…”
That would include me and millions of veterans.
And where did these trolls ever get the notion that we support RINOs and the GOP? Just because many PatriotPost readers vehemently oppose socialism and tyrannical government by fiat and decree, as embraced by the Left and the Democratic Party, does not imply support for the GOP, except to the extent that it may defeat the tyranny of the Left. There are far too many Leftists in the GOP for my liking.
First, let’s get the sarcasm out of the way. Your posting identity is obviously a misnomer.
You are to some extent correct in that people of all political persuasions tend to interpret the constitution in whatever manner that most supports their particular position. However, there is but one and ONLY one correct way to interpret the constitution and Thomas Jefferson enlightens us as to that method.
“On every question of construction [interpretation] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
—Thomas Jefferson to William Johnson, 1823. ME 15:449
This statement, by the author of the Declaration of Independence and mentor to the “Father of the Constitution,” James Madison, obviously refers to original intent. There is no other way to interpret what Mr. Jefferson said.
As Mr. Alexander has repeatedly said, “Any debate about the authority of our Constitution must begin with First Principles, original intent.” This is truer now than it was in 1823 when Thomas Jefferson wrote to William Johnson, as we are farther removed from the original authors than were they.
It is critically important to understand what was meant at the time a particular piece of legislation (an amendment is a special piece of legislation that has a very high threshold for approval) was passed in order that it be applied correctly and as intended. Once this “original intent” is discerned, what the legislation/amendment says is no longer in need of interpretation.
When the intent of the authors is not clear and there is some question, it behooves us to go to the notes, and drafts, and debates, etc. surrounding the legislation to learn what was intended. The intent of Section 1 of the 14th Amendment can be clearly understood by examining the writings of the two main authors, Senators Jacob Howard and Lyman Trumbull.
In conclusion, your arguments, which are nothing more than “your OPINION”, simply do not hold up to the test of original intent.
Thank you for this articulate, historically sound explanation. Having been educated in government schools, I never knew this issue was, in reality, so cut-and-dry. However, the more I learn about the Left and the way it operates and obfuscates, I’m not nearly so surprised by the truth of the history behind the anchor-baby issue as I am discouraged by it.
In all, the subtext I take away from your germane exposition this week is that the Rule of Law is losing the message war. I will continue to do my part by sharing Essential Liberty and the Patriot Post with friends and family, but I’ll admit that I’m losing hope. Please keep up the fight – your work is a great light to me and many more like me.
Thank you Major Stu and John C for doing a better job showing True Patriot the errors in his thinking. Last night when I entered my comments, I was at the end of a very long day, and my mind was frazzled.
Major Stu, the Thomas Jefferson quote you provided really cements the fact that the “militia” back then meant the people themselves, and not a standing army or some other government-organized military group. This is an essential point. Correct me if I’m wrong, but I believe also, that the Constitution includes the government’s authority (or duty if you like) to raise a standing army in defense of the country; and I believe the Constitution is specific on the size of that army. If raising an army is already specified in the Constitution, then why would anyone think that the 2nd Amendment in the Bill of Rights allows the government to raise a militia. That would be redundant, yet I think that is what True Patriot thinks.
John C, yours is a good point as well. True Patriot was railing against both Democrats and Republicans, basically saying that they’re all wrong because they all interpret the Constitution to suit their own political agenda. While this is sometimes true, we mustn’t get so insistent on (appropriately) lambasting the politicians that we lose sight of the fact that there is a “correct” interpretation. The only way to find it is to consult history and first principles in order to have original intent for judicial or legislative decisions. Maybe for this reason, our pathetic political class should be comprised of historians rather than lawyers.
re: Real American
Thanks for your honest reply. I am obviously going against the grain; but actually I am not against gay marriages, and I will tell you why.
My education, and from the research I have done over the years, supports scientific evidence that Lesbian, Homosexual, and Bi-sexuality is a genetic trait. It is not learned, environmental, or chosen in the majority of the cases.
It isn’t quite as you say a choice to be a gay. It is instead ‘hard wiring’ in the brain that predisposes a man or a woman to be gay. Extensive research, journals articles, and studies to date prove that. The only disquiet I have about homosexuality, as a human condition, is that homosexuals cannot propagate for the species. Obviously if everyone were homosexuals, our species would die off.
Other than that, I would be hypocritical to say one way or another it is wrong to be gay.
Regarding party affiliation, there are many more issues to consider besides gay marriage. For example, I am a constitutional, fiscal, limited government, conservative. I believe, and always have, that because I have gave up years of my life to go to college for 9 years, sacrificed my own and family’s time, saved wisely and invested, sacrificed years for my country, and was prudent with my money, I shouldn’t have to support my neighbor who didn’t go to college, didn’t sacrifice, chooses not to better themselves, and is content with living off other people’s money. I tire of letting the less industrious live off the backs of those (small business men and woman, entrepreneurs, professionals, and like successful individuals) who worked their whole lives to provide a better life for their families, only to see greater and greater amounts going to the largest indolent class in history.
I believe the federal government has limited power as provided for in the constitution, and that they have greatly overstepped their boundaries. One good example is health care mandates and fines and potential imprisonment for not buying into government mandated health insurance.
There is no other word for that despotic power move than communism. There is no possible way to argue otherwise that a federal government with that kind of power over the people is anything but communistic.
As I said before, stay out of my life (Federal government) and I will stay out of yours. But the federal government does not understand that and want to legislate their own form of morality, against the ‘majority’s wishes.’
I believe another revolution is needed to put back in their places, an overbearing, intrusive, despotic, and unconstitutional government.
Unfortunately, it doesn’t seem traditional elections will accomplish that in the near or distant future, so more drastic measures must be taken. Just my opinion of course and you know what they say about opinions. When they stop listening to the people’s wishes, it is time for them to go, all of them.
This is one of the best “plain language” explanations of the 14th Amendment re the meaning of the word “person” and the term “under the jurisdiction of the USA” that I have heard for a long time. It is one that I have been telling people about for years.
In the Mexican Constitution – Article 30, para A, section II and III – it declares that children born abroad of either natural born or naturalized Mexican parents are at the time of their birth….Mexican Citizens. So I ask….how can it be that they can lay claim to American citizenship when indeed, they are citizens of Mexico at birth? And, how is it that the the USA can give them American DUAL CITIZENSHIP when in fact, we do not by statute recognize dual citizenship? Indeed, at the time a foreign national becomes a naturalized citizen, he/she takes an oath of allegiance to the USA and foreswears any and all allegiance to their original country of birth/origin.
“Millions of American Taxpayers Make Money Off Federal Taxes” Yahoo News
To support my earlier contention.
“Now meet the Freeloading Fifteen. Those are the 15 million American households who’ve got it even better. Representing about 10 percent of all taxpayers, they receive more cash from the IRS than they contribute in federal income taxes and employment taxes. (Excise and corporate taxes notwithstanding, you could say they are making money off of federal taxes.) To some, they are low-income Americans benefiting from smart and targeted welfare run through the tax code. To others, they are unacceptable free riders, contributing net zero or worse to the federal government.” Yahoo News
Too many free loaders, and Socialist liberals support them because, very simply, they are a large segment of their voting bloc.
2nd Amendment – it is interesting to note that Title X, US Code, specifically defines who the militia is. Generally, it is every able bodied male between the ages of 17-45. This also includes LEGAL aliens who are in the process of gaining citizenship.
Immigration – we are either a nation of laws or we are not. While some people might not like the process we have determined to become an American citizen, the fact is that there is a system and either we follow it or we don’t. If you come to this country illegally, then you are a criminal and should be prosecuted. If not, what message are we sending? What is the principle? We are, from the very beginning, telling our future citizens that we do not respect our own laws. But then again, many of those here illegally do not want to be citizens – yet we pander to them anyway. Where is the justice to our citizens? Don’t we have a greater obligation to our own society than to those who make a mockery out of our laws and, therefore, us? How are we to maintain civilization if there are no rules or we make them up as we go? I surely remember playing ball on the playground when the bullies made up the rules as the conditions changed – didn’t like it them and I won’t stand for it now. But how can our government require us to follow some laws, yet flat out ignore others? How can you police that? Answer is – you can’t and you never can. God help us!
Posted August 27, 2010 at 2:20:36 PM
Soundly reasoned, well researched and seemingly irrefutable (would that there was such a thing anymore). It is too bad you couldn’t resist the “rule of Obama” cheap shot at the end. He is hardly the most vocal proponent of the opposite view, nor the first president to hold it, so your nakedly partisan remark cheapens your own argument. Still, correct is correct (if not always right).
John D. Epperson
Take a Load of This Sellout
This seems like a sneaky maneuver and Senate sold us out.
Well, someone figured out why Obama nominated Elana Kagan for the Supreme Court….
Pull up the Supreme Courts website, go to the docket and search for Obama. She was the Solicitor General for all the suits against him filed with the Supreme Court to show proof of natural born citizenship. He owed her big time. All of the requests were denied of course. They were never heard. It just keeps getting deeper and deeper, doesn’t it? The American people mean nothing any longer.. It’s all about payback time for those that compromised themselves to elect someone that really has no true right to even be there. We should be getting so sick of all of this nonsense.
Here are some websites of the Supreme Court Docket:
I did look up some of these hearings and guess what?? Elana Kagan is the attorney representing Obama!!! Check out these examples:
GOD help and deliver us.
Not withstanding all the titles Mr. Philip M. Kober, JD, MD, PhD in his hubris claims, he’s shown that he’s neither a gentleman nor a constitutional scholar. Unable to cogently and eruditely state his case he resorts to name-calling and an ad hominem attack on Mr. Alexander.
The 14th Amendment phrase “subject to the jurisdiction thereof” wasn’t meant to be a matter of parochial law enforcement but rather referred to which country had original jurisdiction over the person. Those who come here from other countries; particularly illegally, i.e., without our permission and perhaps with the implicit permission of their country of birth; are under the jurisdiction of their birth countries in addition to being subject to our laws. As a matter of fact, this was part of the SCOTUS case Mr. Kober slyly refers to but does not name, the SCOTUS United States v. Wong Kim Ark, 169 U.S. 649 (1898) Decision. The decision hinged on several important facts. First. Wong’s parents when they were in the US were subjects of the Emperor of China. Secondly, they were in the US legally and had a permanent domicil and residence in the United States, were carrying on a business. And third they were not employed in any diplomatic or official capacity under the Emperor of China. Thus Wong became at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution. The reasoning of the court thus precluded babies of illegals.
Not long ago Mexico recognized dual citizenship for its citizens who “emigrated” into the US as they’re often seen by Mexico as advocates for its presumed territorial claims to the American Southwest. However, Mr. Kober should take a look at Mexico’s draconian immigration laws.. Better yet, perhaps the US should adopt those laws. I should also mention that not one advanced country other than the US allows anchor babies.
When one reads Article 1, Section 8, Paragraph 4, the Tenth Amendment, and the Federalist Papers, the intent of the roles of States and the Federal government are clearly laid out. One of the reasons that history is neglected in our schools, including law schools, is to obscure what the Founding Fathers intended. At the time of the acceptance of the Constitution the States controlled who entered in their respective States from outside the country, but not from other States. The latter was one of the reasons for the Commerce Clause, which too has been greatly abused for some time in an effort by the Federal government to seize power that belongs to the States.
In short, the Federal government controls who becomes a citizen while the States are supposed to control immigration. Despite Mr. Kober’s supposed education, he’s aliterate. The words naturalization and immigration are not the same no matter how you obfuscate them. The Constitution clearly says “The Congress shall have Power To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United State,” and that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It’s clear that for whatever reason, most likely because each sovereign nation-state where already from their founding thu the Articles of Confederation were exercising the right to control immigration, the Founders expressly didn’t give the Federal government that power, just the power to decide who’s allowed to become a citizen from outside the US. Nor did the Founders prohibit the States from exercising the power to control immigration.
It’s clear from Mr. Kober’s words that he favors open borders and indiscriminate immigration. However, we’re a sovereign nation with the right to determine who enters our country, when, why, and for how long; period. In as much as many of those who enter our country illegally from Mexico espouse a belief in Aztlan and the phrase “Por La Raza todo. Fuerra de La Raza nada,” are involved in drug and gun running, or for slave labor including prostitution, the only reasons progressives would want open borders is either to enlarge the Democratic Party voter base with either those given amnesty or even illegal voters, or to overwhelm our system in order to collapse it so that a socialist/fascist welfare nanny one-party state can be implemented.
As one who took an oath to support and defend the Constitution against all enemies, both foreign and domestic, I must take exception with Mr. Kober’s views. I would ask him, which is more important, constitutional exegesis or eisegesis. When Mr Kobe states that “Going to the “context” in which an amendment was passed is not done unless the words are ambiguous,” it’s the latter he’s advocating and eisegesis is the basis for judicial activism and the concept of a “Living Constitution” which can be reinterpreted as desired. When there’s contention, even if he believes certain words or phrases in the Constitution aren’t ambiguous, would he still be willing to consider original intent? Does he believes that the Constitution says what it means and means what it says or does he believe the Constitution is a malleable living document? Does he believe legal precedence and stare decisis are sacrosanct? Does he believe that the study of case and international law should replace the study of Constitutional law and its developmental history?
You are so far off on this I cannot believe it. First, what is the difference between a citizen of the US who is NOT subject to the jurisdiction thereof, and one that is? There are no wasted words here…if there was no difference, there would be no need for the phrase. The term “subject to the jurisdiction thereof” means an absolute or plenary jurisdiction…a non-free subject…this is not the status of the free “we the people” …as the creators of the national government, the free people are subject ONLY in those limited areas where the National government is granted power (see the 10th Amendment) The national government, as creators of the 14th amendment citizenship, exercise the rights of a creator. Note also the phrase “and the state wherein they reside”…consider 2 things…a Citizen is never a resident…the missing term clarify s the meaning…resident and non-resident ALIEN…all federal citizens are aliens in their state of residence…this is NOT the status of free constitutionally-protected free state Citizens. They are not residents…they are Citizens. I could go on, but the lie is so ingrained I doubt any of you believe what I have already said…so enough.
Guy L W Hardy
I may be in error, but it was my understanding that the amendment in question conferred citizenship on the child only – not the parents. While this may seem ridiculous (what parent is going to leave their child behind? or, what kind of people would require them to?), the point is valid: the child is still subject to his parents’ will, but the American citizenship would remain – and, in the case of some tragedy befalling the parents, there would be American citizenship for the child to rely upon.
Further, there are quotes by Washington, and other Founding Fathers and statesmen, that clearly state the duty of every immigrant wishing to remain is to become an American – only and always – which means such a child would have access to their birthright immediately through the parents’ diligent efforts in order to remain legally in America. That, or the parents could return to their homeland, taking the child with them – which would have no effect on the child’s American citizenship (as far as I can see, anyway).
If this was the original intent of the matter in question, then the idea of anchor babies goes away – the parents never obtain automatic citizenship, although they may earn it for the sake of the child. Any other ideas? Am I right or wrong?
Is Obama an “Illegal Immigrant”? Overstay on Education grant or not completing the grant Education as stipulated, with the necessary “B” for the grant to be honored?
I’m the son of an immigrant. What makes my case different from what the left always call “immigrants”? My mother came here legally. Her family submitted to be citizens, and then waited in line. 11 years they waited. And when they got here: My grandfather worked his butt off to provide for his family. Sounds like what Mexican’s do: work their butt off. But I’m not Mexican. I’m German. FORMER nationality is meaningless when you say “nope, now I’m an American.” My grandparents never raised a German flag here. My grandfather refused to speak German, even at home. He learned the language, and contributed to society. He did not hide in the shadows.
I’ve no problem with immigrants, if they WANT to be an American. Wanting to be a citizen of another country, taking down the American flag to fly that country’s flag here, living here illegally, and free-loading (and sucking dry) from the system that my tax dollars support? No thank you. Go home. Stay there. Go home and leave my country alone.
Philip M. Kober, JD, MD, PhD says in his comment “(Ignorant insult deleted), we should change our attitudes and our policies to be the welcoming society that welcomes even those from Mexico who are simply looking for a better way of life.” Does he forget that the actual citizens of this nation must foot the bill for all the illegals on welfare, Food stamps, and in our prisons for breaking our laws? Does he not see the rampant unemployment problem as they take jobs from hard working citizens? Does he not realize that while the illegals are just trying to better their lives by coming here they are worstening ours? How did such a muddle-head recieve a PhD in any subject?
Babies born to illegal alien mothers within U.S. borders are called anchor babies because under the 1965 immigration Act, they act as an anchor that pulls the illegal alien mother and eventually a host of other relatives into permanent U.S. residency. (Jackpot babies is another term).
The United States did not put any limits on immigration in 1868 when the Fourteenth Amendment was ratified. [anyone could enter legally] Thus there were, by definition, no illegal immigrants and the issue of citizenship for children of those here in violation of the law was nonexistent. Granting of automatic citizenship to children of illegal alien mothers is a recent and totally inadvertent and unforeseen result of the amendment and the Reconstructionist period in which it was ratified.
Free! Post-Civil War reforms focused on injustices to African Americans. The 14th Amendment was ratified in 1868 to protect the rights of native-born Black Americans, whose rights were being denied as recently-freed slaves. It was written in a manner so as to prevent state governments from ever denying citizenship to blacks born in the United States. But in 1868, the United States had no formal immigration policy, and the authors therefore saw no need to address immigration explicitly in the amendment.
In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:
“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.”
The correct interpretation of the 14th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.
Roger Boatwright, MD, JD, York, PA
What a wonderful exposition on the Citizenship Clause of the 14th Amendment. How can it be that a person who is committing a crime by coming to this country can have a child who is deemed a “citizen” simply by being born here? As Mr. Alexander pointed out, offspring of diplomats who are here legally are citizens of their native countries, as they should be. Why then do we keep electing politicians who foster the influx of illegals simply because it is politically expedient? Would to God we had statesmen in D.C. rather than politicians.
Dear Mr. Alexander,
I am an avid reader of the Patriot Post, but, as some others have done, I must disagree with this column, though I share your concern about the absence of the Rule of Law generally.
First, I understand what you are trying to communicate with the points you made about the “and subject to the jurisdiction thereof” clause, but try to tell a Mexican or Salvadorian drug dealer in a state or federal prison that he is not subject to the jurisdiction of the United States. I’m sure they would vehemently disagree.
Second, how is this debate affected by the fact that the Constitution does not speak of ‘immigration’, but ‘naturalization’, i.e., how one becomes a naturalized citizen of the United States? Related to the foregoing is the fact that masses of immigrants came here during the two great waves of immigration without quotas and largely unregulated, except, perhaps, for screening for communicable diseases, criminal histories, and the like. For the most part, anybody who wanted to come here was able to get in, very few questions asked. Once they were here, were they not subject to the jurisdiction of the United States?
In conclusion, like some other posters, I think that the Welfare State has more to do with the undesirability of masses of foreigners coming here, but I don’t think that absent that caveat anyone who desires a better life should be denied entry into the United States, no quotas, no exceptions save those mentioned above. The ‘economic’ arguments against mass immigration lose their appeal more and more as I see that they are mostly arguments against competition for native workers. Get rid of the Welfare State and allow all comers to try to make the U. S. the best it can be with hard work and initiative.
First of all the 14th amendment states “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.” I believe the key phrase is “subject to the jurisdiction thereof” – if someone is in the USA illegally they are not subjecting themselves to the “jurisdiction thereof” but attempting to enjoy the benefits of living in America without subjecting themselves to the “jurisdiction thereof” otherwise they would have come through the legal process. People talk about the need for a path to citizenship etc,we already have one. It starts by coming here legally. If you come here illegally you have no right to a path to citizensip. Go back where you came from and come through the proper channels. I would propose that from this point in time forward that in order to be a citizern by birth in the US one of your parents needs to be a US citizen, otherwise you need to go throught the established, legal, naturalization process. Exceptions could be made for political refugees such as the Italians who came here without papers after WWII or the Cubans who fled after Castro took over.
William H. D. Taylor
I, as a citizen of these United States, would like to sue the President, Congress and the Courts of these United States, why the 14th Amendment of our Costitution should not be upheld as it was initially intended and written.
Colonel A R McCahan, USA-Ret
My bride and I were blessed with the birth of two children while I was serving our nation in Germany in the early 1960s. Those two boys had to be naturalized when we returned to the United States. We didn’t like it, but it was the law, so we obeyed it. When we adopted an Amerasian child in Korea in the 1970s, we were required to obtain a “green card” for her. We didn’t like it, but it was the law, so we obeyed it. What makes anyone believe that someone who has broken a Federal law to be here in the first place would pay full attention to other “minor” laws made by states or municipalities? And why should any child born of parents illegally here be afforded rights and privileges not given to citizens serving their country overseas?
But the real question addressed by this debate is found in the words “subject to the jurisdiction.” I hold that any child born of parents who are not citizens of the US are subject to the jurisdiction of the country in which their parents hold citizenship. Thus, they meet only half of the requirement for citizenship as specified in Amendment XIV in that they were “… born … in the United States,” but they are not “… subject to the jurisdiction thereof …” because they can only be subject to the jurisdiction of the country in which their parents hold citizenship since they are not of legal age and CANNOT be subject to any jurisdiction in their own right!…
Posted September 9, 2010 at 10:53:49 AM