Post by Charles H. SampsonI thought about posting this to misc.legal.moderated, but I decided that
it's much more of a TV question than a legal question.
Does anyone know how Trump is reading the 14th amendment that will allow
him to get rid of anchor babies by some sort of fiat? The words "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." don't seem to leave a lot of room for
interpretations.
By: Daniel Horowitz
The American people are being told by the political class that there is nothing
they can do to prevent future waves of illegal immigrants from coming here,
unilaterally declaring political and legal jurisdiction, and securing citizenship
for their children. We are told that there is no recourse through our elected
representatives to prevent illegal immigrants from gaining a legal foothold in this
country all because of a footnote from the most radical anti-originalist
justice of this century, William Brennan Jr.
Justice William Brennan Jr
If you are scratching your head wondering how our own Constitution can be used as
a suicide pact against us by foreign countries, you are not missing anything.
This irrational sentiment expressed by a number of conservative and liberal
pundits alike, in fact, undermines the very fabric of the social contract,
popular sovereignty, and the republican form of government established by the
preamble of the Declaration of Independence and the Constitution.
Mandated Birthright Citizenship Even for Legal Immigrants is a Big Stretch
Lets put aside everything we believe as conservatives for a moment and take the
activist ruling of Wong Kim Ark [169 U.S. 649 (1898)] as impregnable
constitutional law. As such, the 14th Amendment would compel Congress and the
Executive agencies to grant citizenship to all children of legal immigrants.
Although we all agree as a matter of policy that it is a good idea to grant
children born to legal permanent residents citizenship, by accepting the 1898
court decision as settled law, thereby enshrining birthright citizenship into our
Constitution, wed have to swallow the following ridiculous notions:
Wed be adopting one-directional stare decisis of an activist court that
overturned two previous court decisions: the 1873 Slaughterhouse Cases and Elk v.
Wilkins (1884). In those cases, the Supreme Court made it clear that the
original intent of the 14th Amendment was primarily to grant equal rights to
freed black slaves and that the phrase subject to the jurisdiction thereof
required that the petitioner for citizenship be completely subject to their
political jurisdiction, and owing them direct and immediate allegiance. These
cases excluded children born to foreign diplomats and Native American Indians and
were quite clear that the meaning of the 14th Amendment would not include all
children of immigrants most of whom would have been covered by less political
jurisdiction than even those born on Indian reservations, which were partially
under U.S. jurisdiction. [See more from Prof. John Eastman at NRO on defining
jurisdiction]
Wed be overturning the most logical meaning of the text of the Citizenship
Clause, rendering the second phrase all but superfluous.
Wed be ignoring the intent of the drafters of this amendment who clearly had
no intention to mandate birthright citizenship for all immigrants [see more in
the Eastman article]. While originalists like to focus on text, in this case the
text fits in exactly with the intent of the drafters, as demonstrated by the
Senate floor debate.
Wed be adopting the revolutionary-era feudal system of English Common law
rooted in the fact that men are subjects of the state by virtue of being born on
the soil. This is antithetical to the consent-based notion of citizenship
expressed by our Founders. Although many of our laws are built upon common law,
this certainly was not one of them, and this segregation-era court was
incorporating it into American law, ironically, at a time when England was
abandoning feudalism. As Thomas Jefferson wrote precisely in a discussion on
immigration in Notes on the State of Virginia [Query 8, 211], our Constitution is
a composition of the freest principles of the English constitution.
By adopting jus soli as a constitutional mandate (not just policy) for
automatic citizenship based on soil, and not jus sanguinis right of blood all
children born to American citizens abroad would not automatically be citizens, as
noted by then-Chief Justice Fuller in his dissent in Wong Kim Ark.
Fuller further noted in his masterful dissent that by mandating automatic
citizenship for all children of immigrants no matter the circumstances the
Fourteenth Amendment would have the power to cut off the legislative power from
dealing with the subject. Article 1 Section 8 of the Constitution grants
Congress plenary power over naturalizations. Fuller observes that, the right of
a nation to expel or deport foreigners who have not been naturalized or taken any
steps toward becoming citizens of a country is as absolute and unqualified as the
right to prohibit and prevent their entrance into the country. Unless there
would be no other way to read the plain language of the 14th Amendment other than
a mandate granting territorial jurisdiction instead of political jurisdiction
(before 1898 nobody read it this way), it is simply imprudent to interpret it in
the most stringent way having the effect of almost completely voiding out an
enumerated power of the peoples representatives governing the most vital aspect
of a society.
Extrapolating Birthright to Illegals Countermands the Social Contract and all
Semblance of Sovereignty
Freeze frame at this point.
Accepting the notion of automatic birthright citizenship for legal immigrants as
a constitutional mandate is hard enough to swallow. Yet, the conservative
pundits in the political class want to extrapolate this terrible decision to
children of illegal immigrants. As if it wasnt enough to accept the activist
1898 court case from the segregationist justices, proponents of anchor
citizenship for illegal immigrants rely on footnote 10 in William Brennans
Plylor v. Doe (1982) opinion a decision that absurdly forced taxpayers to fund
K-12 education for illegal immigrants.
In that footnote, which is nothing more than dicta (non-binding comments not
relevant to the case), Brennan quotes one early commentator noting that given
the historical emphasis on geographic territoriality, bounded only, if at all, by
principles of sovereignty and allegiance, no plausible distinction with respect
to Fourteenth Amendment jurisdiction can be drawn between resident aliens whose
entry into the United States was lawful, and resident aliens whose entry was
unlawful.
There you have it, until the end of time, American citizens through their
elected representatives have no recourse to prevent future illegal immigrants
from obtaining citizenship against the will of the people because of the non-
binding footnote of the most radical justice of the 20th century, which in
itself, relied on a decision reversing precedent and relying on the English
feudal system.
In reality, there is a huge difference between the legal permanent resident who
was the subject of the 1898 court case and the illegal immigrants of today, even
if we were to fully accept the concept of birthright citizenship based on nothing
more than geographical jurisdiction. The justices in Wong awarded the child
citizenship because his Chinese immigrant parents were domiciled in America
(legally, before the ban on Chinese immigration). As Prof. Eastman notes,
Domicile is a legal term of art; it means a persons legal home, according to
Blacks law dictionary, and is often used synonymously with citizenship.
Undoubtedly, those here in contravention to our laws, unlike Wong Kim Arks
parents, cannot unilaterally declare domicile in our country.
And this all leads to a much more fundamental and vital discussion about
sovereignty. There is simply no way our Constitution can prohibit our elected
representatives from preventing illegal immigrants from driving their pregnant
wives to the border, and assuming the border patrol fails to catch the speeding
vehicle in time poof! that baby is a citizen.
First, as noted before, Article 1 Section 8 grants Congress plenary power over
naturalization. By mandating automatic citizenship to babies born in the
aforementioned case, that would completely strip the ability of Congress to
exercise the most basic regulation over naturalization keeping out those they
affirmatively do not want in the country. Certainly, we can say that Section 5
of the 14th Amendment, which grants Congress the power to enforce the other
sections of the amendment, would allow them to clarify the Citizenship Clause to
the extent that it would not completely countermand their Article 1 power as it
relates to illegal aliens who force their will on their constituents for
goodness sakes!
But more fundamentally, the notion that illegal immigrants can unilaterally
declare citizenship for their kids against the will of people and the laws duly
passed by the peoples representatives, and that those representatives would lack
a single recourse to stop it even prospectively, violates the very essence of
consent-based citizenship. The notion of consent-based citizenship serves as the
bedrock of popular sovereignty, territorial sovereignty, and Republicanism all
built on the social contract. The preamble of the Declaration of Independence
was built upon the principle that in order to protect natural rights people are
entitled to popular sovereignty to form a government that derives its powers
from the consent of the governed.
Professor Edward Erler has been the leading voice observing how birthright
citizenship for illegal immigrants, and indeed the entire phenomenon of illegal
immigration and their securing of rights and benefits, violates the social
contract in the most foundational way. In his book, The Founders on Citizenship
and Immigration, Erler writes the following with regards to citizenship and the
social contract:
[T]he social contract requires reciprocal consent. Not
only must the individual consent to be governed, but he
must also be accepted by the community as a whole. If
all persons born within the geographical limits of the
United States are to be counted citizens-even those whose
parents are in the United States illegally- then this
would be tantamount to the conferral of citizenship
without the consent of "the whole people."
Drawing on the writings of our Founders, Erler notes that they clearly envisioned
that new members can be added only with the consent of those who already
constitute civil society. He cites Madison who wrote that, in the case of
naturalization a new member is added to the social compact, not only without a
unanimous consent of the members, but by a majority of the governing body,
deriving its powers from a majority of the individual parties to the social
compact.[1]
Even Wong Kim Ark Court Would Never Mandate Citizenship for Illegal Aliens
Clearly, even the authors of the Wong decision, unlike William Brennan,
understood the basic concept of consent-based citizenship, at least as it relates
to those who came here illegally. While some intellectuals contend that because
there was no real concept of illegal immigration in those days the decision would
apply to all aliens, the writings of that very court prove otherwise.
In fact, by that point, pursuant to the immigration laws passed in 1882 and 1891,
Congress had already denied admission to the following categories of aliens:
idiots, the insane, paupers, and polygamists; persons liable to become a public
charge; those convicted of a felony or other crime or misdemeanor involving moral
depravity; and sufferers from a loathsome or dangerous contagious disease.
They also passed the Chinese Exclusion Act banning all new immigration from
China. The Immigration Act of 1891 created a new office, the Commissioner of
Immigration within the Treasury Department, vested with the power to inspect new
immigrants and potentially deny them entry if they were deemed inadmissible under
one of the criteria.
In Nishimura Ekiu v. United States (1892), a Japanese woman sued immigration
officials for denying her entry on account of her being a supposed public charge.
She claimed that her due process was violated because she was not afforded the
opportunity to present her case. And no, she was not even asserting the dubious
modern substantive due process violation in pursuit of new fundamental rights;
she was merely alleging a procedural due process violation. Yet, Justice Gray
the same author of the Wong decision not only rejected her claim, he noted that
the courts shouldnt even have the jurisdiction to second guess legislative and
executive decisions on immigration. Here are the relevant quotes with my emphasis
added:
It is an accepted maxim of international law that every
sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to
forbid the entrance of foreigners within its dominions,
or to admit them only in such cases and upon such
conditions as it may see fit to prescribe. Vat. Law Nat.
lib. 2, §§ 94, 100; 1 Phillim. Int. Law, (3d Ed.) c. 10,
§ 220. In the United States this power is vested in the
national government, to which the constitution has
committed the entire control of international relations,
in peace as well as in war. It belongs to the political
department of the government, and may be exercised either
through treaties made by the president and senate, or
through statutes enacted by congress, upon whom the
constitution has conferred power to regulate commerce
with foreign nations, including the entrance of ships,
the importation of goods, and the bringing of persons
into the ports of the United States; to establish a
uniform rule of naturalization; to declare war, and to
provide and maintain armies and navies; and to make all
laws which may be necessary and proper for carrying into
effect these powers and all other powers vested by the
constitution in the government of the United States, or
in any department or officer thereof. [
]
It is not within the province of the judiciary to order
that foreigners who have never been naturalized, nor
acquired any domicile or residence within the United
States, nor even been admitted into the country pursuant
to law, shall be permitted to enter, in opposition to
the constitutional and lawful measures of the legislative
and executive branches of the national government. As to
such persons, the decisions of executive or
administrative officers, acting within powers expressly
conferred by congress, are due process of law.
Here we have the very activist author of the decision used as the foundation for
the birthright argument clearly expressing the basic concept that Congress has
the ability to control the nations sovereignty. It would require preposterous
mental gymnastics to assume that, had this Japanese woman given birth at the port
the day she was interviewed by the immigration officer, Justice Gray would have
conferred citizenship on that baby against the will of the peoples
representatives.
Where is the Voice of the people on immigration?
The reason the birthright discussion is so important is because it sheds so much
light on the transmogrification of the judicial system as it relates to popular
sovereignty and the social contract. Not only do we have judges like Brennan
bestowing citizenship and education rights on illegal immigrants from the high
perches of the bench, they have invalidated almost every attempt by the states
and federal government to keep out illegal immigrants. A California judge
recently invalidated detention for all illegal immigrants with children,
essentially mandating their irrevocable disappearance into the American
population.
In addition to the courts, we have unelected bureaucrats and the U.N.
transforming entire communities through refugee resettlements without the consent
of the people. And although our current immigration system was formed by the
Hart-Cellar Act (Kennedy bill) in 1965, the supporters of the bill lied to the
American people and publicly ruled out the transformational outcome that indeed
took place. For decades, illegal aliens have been counted in the census and have
now permanently distorted the very representation the civil society needs to
fight on behalf of their sovereignty.
What ever happened to the voice of the people?
Immigration transformation pursued outside of the democratic process is even
worse than having courts decide societal issues, such as abortion and gay
marriage, in what Justice Scalia calls societal transformation without
representation. The courts have now empowered themselves to unilaterally and
immutably change civil society itself without any recourse from those the
Constitution vested with making such decisions. How far we have deviated from
the Founders vision that even so-called conservatives support the idea of
changing the civil society without the consent of its citizens.
Indeed, the issue of birthright citizenship for illegal immigrants is not just a
tangential topic within immigration. It cuts to the very core of how illegal
immigrants are able to coerce their will on the American citizenry and the
broader issue of sovereignty. This runs much deeper than the 14th Amendment.
The question for policy-makers has moved beyond whether we will survive as a
nation as our Founders envisioned. We have already deviated so far from that
vision. Its a question of whether we are a nation at all.
: Daniel Horowitz is the Senior Editor of Conservative Review. Follow : him on
Twitter @RMConservative.
--
"I will not vote for Hillary Clinton. The last Clinton presidency left
a bad taste in my mouth."
-- Monica Lewinsky