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Discussing birthright citizenship objectively

A new article has been published at The American Thinker titled, “An Objective Guide to Birthright Citizenship.” The article is by Rob Natelson, described as:

senior fellow in constitutional jurisprudence at the Independence Institute in Denver and author of The Original Constitution: What It Actually Said and Meant.  His research is cited frequently in Supreme Court opinions and arguments.

The American Thinker has no discussion forum, and that is why I have opened up a place to discuss the article, should anyone want to.

After reading the title, and considering the publication where it appears, I expected to see nothing even remotely approaching objectivity in the article. I didn’t find what I expected. There is bias, but it is subtle.

The question discussed in the article is whether children born to persons without legal residence in the United States become citizens. Under current policy, they are citizens and [spoiler alert] the article says that should the Supreme Court address the question of the children of non-legal residents, it would decide that they are citizens.

I have some issues with the objectivity of the article as it seems to warm up to some ideas and brush off others, for example, saying that a footnote in Plyler v. Doe (1982) was inserted by the “liberal majority” and had “little or no persuasive power.”

Probably the one thing I might take issue with is the following statement regarding why the 14th Amendment is endless fodder for discussion.

This is partly because we know less than we should about the amendment’s ratification by the state legislatures.  It is partly because the amendment’s congressional drafters were not very competent.  They sometimes were ignorant of existing constitutional law.  They invented terms without defining them.  And they ascribed meanings to terms different from established legal meanings.  The phrase "subject to the jurisdiction" is a good example.  We have only a few clues as to its intended meaning.

Additionally, none of the proposers discussed how the amendment would impact the children of illegal aliens – even though (contrary to modern assertion) everyone knew that such children were in the country.  They were the offspring of Africans illegally imported as slaves after the ban on the slave trade (1808) and before the end of slavery (1866).

The negative assertions about the framers of the 14th Amendment are not supported by examples. My main problem is calling these illegally imported slaves “illegal aliens” because an “illegal alien” is someone who is not a legal resident of the country, and I know of no statute that prevented those slaves from residing in the country, however they got here. There were no immigration statutes in existence prior to 1866 and the situation of those slaves is not analogous to today’s non-legal residents.

The article slips in some rather subtle manipulation of opinion, but it makes some attempt to represent both sides of the discussion and in that it’s far above the usual birther nonsense.

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52 Responses to Discussing birthright citizenship objectively

  1. avatar
    Sef August 31, 2015 at 6:46 pm #

    “before the end of slavery (1866)”

    There might be one or two people in this country who just might take issue with 1866 vs 1863. There was that little proclamation that Lincoln issued before the (real) 13th was approved.

  2. avatar
    Ollie Loynes August 31, 2015 at 7:17 pm #

    In a radio interview, he answered a question as “I think the president of the United States needs to come forth with his papers and show everyone that he’s an Ame 1000 rican citizen and put this issue to bed once and for all. Mann, saying that Mann “questions the citizenship of President Barack Obama despite evidence that is irrefutable to most objective, rational people – including a birth certificate released by the Hawaii secretary of state and birth announcements printed in Honolulu’s two major newspapers”.

  3. avatar
    Slartibartfast August 31, 2015 at 7:51 pm #

    Doc,

    It may be subtle bias, but it seems like powerful racism to me. Just like the birther use of arguments that were pro-slavery, anti-women, anti-Native American or anti-Chinese. To say that someone being held in bondage (in violation of no laws, no less) is an “illegal” because someone else committed a crime in transporting them into the country in chains is nothing short of reprehensible in my mind.

  4. avatar
    john August 31, 2015 at 8:33 pm #

    I think it is absurd to think that children of illegal immigrants should be considered US citizen by birth on the soil. Nevertheless, illegal immigration is a serious problem in this country that is the cause of host of problems in this country from all end of the spectrum. It remains to be seen if the the in flux or surge of illegals form Mexico and other South American countries over the years could be considered an “Invading Army”. Such a definition would exempt children of illegal even though we do have juristiction of those born on the soil.

  5. avatar
    Rickey August 31, 2015 at 9:01 pm #

    Birthers aren’t going to care very much for Professor Natelson’s opinion about what “natural born citizen” means. Here is what he says in his book “The Original Constitution: What It Actually Said and Meant”:

    We know exactly what the founders meant by the phrase “natural-born citizen” because they adapted it from the English legal term “natural-born subject,” which in Britain defined who could serve in Parliament or the Privy Council. Essentially, a natural-born citizen was one who met either one of two requirements. First, a person qualified if born within the United States or within American territory, even if the person’s parents were aliens. Alternatively, an individual qualified even if born outside the country if the individual’s father was an American citizen not then engaged in traitorous or felonious activities. pp 147-148, paperback edition

  6. avatar
    Pete August 31, 2015 at 9:05 pm #

    There are historical precedent reasons, john.

    As far as people sneaking over the border from Mexico or South America into the United States to improve their lot in life, no, that’s plainly not an “Invading Army,” even if they sneak over in large numbers.

    Words mean things, and an “Invading Army” quite specifically means an organized and commanded, cohesive body of armed persons moving in concert under the direction of military leadership in order to seize complete political control of a geographical area and overthrow the existing political and social powers of that area by means of arms.

    I know you’re a birther, but being a birther doesn’t mean that words mean just whatever the hell you feel like making them mean.

  7. avatar
    Yoda August 31, 2015 at 9:35 pm #

    With all due respect, John, and by that I mean none, no one cares what you think. But then, I can say that what I think is irrelevant. The FACT is that the only opinions that matter, the only opinions that anyone cares about, are the stemming from the Supreme Court and clearly, absolutely, and unambiguously has said that you are wrong.

    Further, notwithstanding anything any birther said, not only is an anchor baby a citizen, he/she is a natural born citizen.

    I have always said that the two citizen parent bs was more about Hispanics than it was about the President. The current political climate has proven me correct.

  8. avatar
    john August 31, 2015 at 9:45 pm #

    I think the wording the 14th Amendment needs to be changed to exclude illegals. Clearly, by the wording of the amendment, anchor babies are US citizens. However, in considering the “spirit” and “intent” of the 14th amendment it would clearly exclude illegals. Remember the key word – “illegal”. These persons are in the country illegally and unlawfully (They are not supposed to be here, the border has been breached.) foreigners who are “illegal” are clearly enemies to a soveriegn nation. Hence, children of hostile, invading and “illegal” forces would be have to be excluded.

  9. avatar
    Yoda August 31, 2015 at 9:50 pm #

    No one cares what you think John. Really, you are intellectually dishonest and the 14th Amendment has worked fine since it was ratified. You have a problem with it now when minorities have become an important demographics and concervatives can’t sop making asses out of themselves.

  10. avatar
    Dr. Kenneth Noisewater August 31, 2015 at 9:56 pm #

    john:
    I think the wording the 14th Amendment needs to be changed to exclude illegals.Clearly, by the wording of the amendment, anchor babies are US citizens.However, in considering the “spirit” and “intent” of the 14th amendment it would clearly exclude illegals.Remember the key word – “illegal”.These persons are in the country illegally and unlawfully (They are not supposed to be here, the border has been breached.)foreigners who are “illegal” are clearly enemies to a soveriegn nation.Hence, children of hostile, invading and “illegal” forces would be have to be excluded.

    I think it should be used to exclude birthers who use the alias of “john” online.

  11. avatar
    y_p_w August 31, 2015 at 10:11 pm #

    Yoda:
    No one cares what you think John. Really, you are intellectually dishonest and the 14th Amendment has worked fine since it was ratified. You have a problem with it now when minorities have become an important demographics and concervatives can’t sop making asses out of themselves.

    Actually – there was really no such thing as “illegal aliens” back when the 14th Amendment was ratified. You arrived, got checked for diseases, and welcome to America. I understand some states tried to pass their own immigration laws, but it eventually was ruled by SCOTUS to be an exclusively federal responsibility. About the only thing I recall that changed that was the Chinese Exclusion Act and later laws. However, if you didn’t belong to specific prohibited categories, then welcome to America.

    So I can’t really see how the 14th Amendment was meant to address a difference between a legal/illegal immigrant.

  12. avatar
    Dr. Conspiracy August 31, 2015 at 10:12 pm #

    How about the more common scenario: Two aliens entered the US legally, but failed to leave when their visa expired. They have a child. You think that child shouldn’t be a citizen?

    john: (They are not supposed to be here, the border has been breached.)

  13. avatar
    john August 31, 2015 at 10:23 pm #

    Dr. Conspiracy:
    How about the more common scenario: Two aliens entered the US legally, but failed to leave when their visa expired. They have a child. You think that child shouldn’t be a citizen?

    They are then here illegally. I agree with Trump – Zero Tolerance for illegal immigration. Just like in schools…zero tolerance for drugs and guns. I understand that kids have been suspended and even arrested or even expelled for bringing a toy gun to school or even for someone to point their finger at someone like a gun. It’s simply zero tolerance for guns in school. Same thing in the US…zero tolerance for illegal immigration. Your visa is expired or you jump the border, you are illegal and got to go. You can come back like Trump has suggested but you are going to do it from Mexico or your country of origin the legal way.

  14. avatar
    Yoda August 31, 2015 at 10:26 pm #

    I can’t spell at all today

  15. avatar
    john August 31, 2015 at 10:27 pm #

    Dr. Conspiracy:
    How about the more common scenario: Two aliens entered the US legally, but failed to leave when their visa expired. They have a child. You think that child shouldn’t be a citizen?

    I suppose in that case you might make the exception. The parents were legal but now are illegal. In that case the “intent” to give the child US citizenship from an illegal sense is not present and therefore you might make that child an US citizen. Clearly their case where illegal parents jump the border with the “intent” to deliver a child to get US citizenship. In this case, US citizenship most certianly should be denied.

  16. avatar
    Yoda August 31, 2015 at 10:28 pm #

    John, here is a challenge for you. Why do you think that undocumented workers have been tolerated for so long?

  17. avatar
    Dr. Conspiracy August 31, 2015 at 10:39 pm #

    I think that number is relatively tiny.

    john: Clearly their case where illegal parents jump the border with the “intent” to deliver a child to get US citizenship.

  18. avatar
    Dr. Conspiracy August 31, 2015 at 10:44 pm #

    The article says that slaves brought to the US after 1808 were illegal immigrants.

    y_p_w: So I can’t really see how the 14th Amendment was meant to address a difference between a legal/illegal immigrant.

  19. avatar
    gorefan August 31, 2015 at 11:39 pm #

    john: I suppose in that case you might make the exception. The parents were legal but now are illegal.

    What about women who come here as tourist and have the baboes while they are here legally?

    Or pregnant women here on visas who have the babies while here legally?

  20. avatar
    J.D. Sue August 31, 2015 at 11:41 pm #

    john: I think the wording the 14th Amendment needs to be changed to exclude illegals. Clearly, by the wording of the amendment, anchor babies are US citizens. However, in considering the “spirit” and “intent” of the 14th amendment it would clearly exclude illegals.

    —-

    I like the 14th Amendment to the U.S. Constitution, just as it is. You and your new führer are opposed to its provisions as well as its spirit and intent. This is all a good reminder of why we have the 14th Amendment in the first place–to protect the people from people like you.

  21. avatar
    Keith August 31, 2015 at 11:55 pm #

    Slartibartfast:
    Doc,

    It may be subtle bias, but it seems like powerful racism to me.Just like the birther use of arguments that were pro-slavery, anti-women, anti-Native American or anti-Chinese.To say that someone being held in bondage (in violation of no laws, no less) is an “illegal” because someone else committed a crime in transporting them into the country in chains is nothing short of reprehensible in my mind.

    I agree absolutely.

    johnClearly, by the wording of the amendment, anchor babies are US citizens.

    The use of the term ‘anchor baby’ is offensive to the very soul of America, the plain words of the Constitution, and the tenets of Christianity.

    In America, we support and nurture our children. Demonizing American citizens, especially by giving some class of them a perjoritive name is insulting to ALL Americans.

    The Constitution has a stricture against such a demonization of children. While the actual clause prevents ‘corruption of blood’ as punishment treason, how could such a punishment, barred for the most heinous crime possible against the nation, be acceptable for any other crime? How can you possibly, in good faith and respect for your country continue to blame a citizen – any citizen, let alone a baby – for the alleged ‘crimes’ of their parents.

    As for the Bible, please read Ezekiel 18:20. ‘The son will not bear the punishment for the father’s iniquity.’

    The A.B. word is at least as pernicious as the N word. And its purpose when used is EXACTLY the same: to demonize a fellow human, to put them into a state of otherness, so they can punished for having the simple attribute of existence.

    Children born in America are American citizens. Period. They deserve society’s love and nurture, not name-calling, degradation, and ignorance.

  22. avatar
    Rickey September 1, 2015 at 12:09 am #

    john:
    I think the wording the 14th Amendment needs to be changed to exclude illegals.Clearly, by the wording of the amendment, anchor babies are US citizens.However, in considering the “spirit” and “intent” of the 14th amendment it would clearly exclude illegals.Remember the key word – “illegal”.These persons are in the country illegally and unlawfully (They are not supposed to be here, the border has been breached.)foreigners who are “illegal” are clearly enemies to a soveriegn nation.Hence, children of hostile, invading and “illegal” forces would be have to be excluded.

    You are forgetting that undocumented immigrants are in the country unlawfully, but a child born in the United States is not in the country unlawfully. The child has broken no laws.Why do you want to punish children for the actions of their parents?

    And your claim that undocumented immigrants are enemies of the United States is racist.

  23. avatar
    Rickey September 1, 2015 at 12:15 am #

    Dr. Conspiracy:
    The article says that slaves brought to the US after 1808 were illegal immigrants.

    That is where his argument falls apart. You cannot involuntarily break the law. A slave who was brought to this country against his will did not break the law which prohibited the slave trade.

  24. avatar
    john September 1, 2015 at 2:18 am #

    “The child has broken no laws.Why do you want to punish children for the actions of their parents?”

    An interesting setiment indeed which is why I do not condone abortion is case of rape and incest.

  25. avatar
    Sef September 1, 2015 at 2:27 am #

    Keith: As for the Bible, please read Ezekiel 18:20. ‘The son will not bear the punishment for the father’s iniquity.’

    So much for the whole notion of “original sin” and a requirement for “salvation”.

  26. avatar
    Andrew Vrba, PmG September 1, 2015 at 2:56 am #

    john: I think it is absurd to think that children of illegal immigrants should be considered US citizen by birth on the soil.

    Pipe down, you cowardly little moron. The adults are talking.

    john: An interesting setiment indeed which is why I do not condone abortion is case of rape and incest.

    Though you do condone gunning children down, wholesale, just so long as they are brown, and crossing the border with their families. And before you try to deny it, need I remind you that you were championing kill zones, placed at the border?

  27. avatar
    CarlOrcas September 1, 2015 at 3:20 am #

    john: An interesting setiment indeed which is why I do not condone abortion is case of rape and incest.

    So…..you are more concerned about an unborn child than one that is trying to survive in America?

  28. avatar
    Lupin September 1, 2015 at 4:06 am #

    john: An interesting setiment indeed which is why I do not condone abortion is case of rape and incest.

    By all means enforce your values within your own family unit, but leave the others (who do not believe as you do) alone, OK?

  29. avatar
    Keith September 1, 2015 at 6:02 am #

    Sef: So much for the whole notion of “original sin” and a requirement for “salvation”.

    Well, not really.

    (Exodus 20:5)–“You shall not worship them or serve them; for I, the Lord your God, am a jealous God, visiting the iniquity of the fathers on the children, on the third and the fourth generations of those who hate Me,”

    So God gets to punish families down the generations (Exodus), but Man cannot (Ezekiel).

    As I understand it, Exodus is referring to a violation of the covenant between God and Man, while Ezekiel is referring to a violation of the laws of man.

    If a man is an alcoholic, wife beater, child abuser, and all-around ne’er-do-well, the effects on his family are indeed borne by his descendants, and the iniquity of the father might well be visited upon even to the third or fourth generation with psychological and physical damage. That is the idea of original sin (as I understand it).

    Crossing an international border without permission is not a violation of the covenant between God and Man; it is a violation of the laws of man.

  30. avatar
    Keith September 1, 2015 at 6:05 am #

    Andrew Vrba, PmG: Though you do condone gunning children down, wholesale, just so long as they are brown, and crossing the border with their families. And before you try to deny it, need I remind you that you were championing kill zones, placed at the border?

    Yes, typical. Absolute protection while the human is in the womb, but as soon as that sucker takes a breath of air, he or she is fair game for exploitation and abuse from every quarter.

    George said it all.

  31. avatar
    Yoda September 1, 2015 at 7:02 am #

    I would be remiss if I did not point out to our birther guest that the 14th amendment did not change the law, it simply was a statement of what the law in this Country always was, at least according to the Ark decision.

  32. avatar
    RanTalbott September 1, 2015 at 7:22 am #

    Yoda: it simply was a statement of what the law in this Country always was

    And it was passed to prevent exactly the sort of weaseling that john and his ilk are attempting.

  33. avatar
    HistorianDude September 1, 2015 at 9:51 am #

    john: I think the wording the 14th Amendment needs to be changed to exclude illegals.

    Then you better get right on that Constitutional Amendment. Because they are hard and take a long time.

  34. avatar
    Rickey September 1, 2015 at 10:01 am #

    john:
    “The child has broken no laws.Why do you want to punish children for the actions of their parents?”

    An interesting setiment indeed which is why I do not condone abortion is case of rape and incest.

    You didn’t answer my question. Why should a child who was born in the United States be punished because its parents are undocumented immigrants?

    Be sure to watch 20/20 on ABC on Friday evening. The topic is “Pope Francis and the People.” I understand that he has quite a bit to say about how we should be treating immigrants.

    http://abcnews.go.com/Press_Release/pope-francis-holds-virtual-audience-american-people-historic/story?id=33436751

  35. avatar
    CRJ September 1, 2015 at 10:26 am #

    If I am considered a “Birther” and like the 14th Amendment as is, because “place of birth” is of course affirmative of nature’s law, will I be excommunicated?

    Vattel’s argument that those born in the country to foreigners resulting in the child’s nurturing determination being foreign and the country being only the country of birth makes sense. Are there any who disagree with McCain’s nativity as a Panama native born son, let them check into the but house.

    The considerations of Congressional testimony I believe in 2002 affirmed as much. The second generation has a far better picture and devotion of loyalty, unity, and affinity based on experience of history than first generation immigrants.

    Born in the U.S. to Citizen Parents was clearly the intent of the Framers for the term, “natural born Citizens”, and to understand otherwise is simply a dereliction of understanding – the beneficiary of the infirm in the propriety of many words when few suffice.

    In the Constitution we have a Reckoning quite clear, and in all else varying degrees of pollution harmful to the Laws of Nature which are firm universal understandings more adequate for a foundation.

    https://m.youtube.com/watch?v=ITCr420K4i8

  36. avatar
    Dr. Kenneth Noisewater September 1, 2015 at 10:35 am #

    CRJ: Born in the U.S. to Citizen Parents was clearly the intent of the Framers for the term, “natural born Citizens”, and to understand otherwise is simply a dereliction of understanding – the beneficiary of the infirm in the propriety of many words when few suffice.

    That’s funny because you can never actually prove this claim.

  37. avatar
    Lupin September 1, 2015 at 11:17 am #

    CRJ: Vattel’s argument that those born in the country to foreigners resulting in the child’s nurturing determination being foreign and the country being only the country of birth makes sense.

    I wish you would stop dragging your very imperfect understanding of Vattel’s writings in your poorly-phrased argument.

    Vattel is not “frozen” in time. France is a Vattelist country, since Napoleon had Vattelist concepts incorporated into the Civil Code. Yet, France recognizes both jus soli and jus sanguinis (ONE parent, not two!) as equal paths to citizenship.

    What you clumsily attempt to describe does not exist and never existed.

  38. avatar
    Dr. Conspiracy September 1, 2015 at 11:50 am #

    It most clearly WAS NOT.

    CRJ: Born in the U.S. to Citizen Parents was clearly the intent of the Framers for the term, “natural born Citizens”,

  39. avatar
    donna September 1, 2015 at 12:26 pm #

    Rafael Cruz: My Canadian-born son can be president

    “The Naturalization Act of 1790 states quite clearly: a child born of a U.S.-born mother anywhere in the world is a U.S. citizen by birth and therefore a natural-born citizen,” Rafael Cruz said.

    “John McCain was born in Panama,” the older Cruz argued forcefully. “George Romney, Mitt Romney’s father, was born in Mexico and ran for president. Barry Goldwater was born in Arizona when Arizona was a territory. The question is settled!”

    Rafael Cruz suggested that the lingering questions, which are mostly being raised by far-right blogs, are really part of an effort to marginalize and diminish his son by the GOP establishment.

    http://www.washingtonpost.com/news/powerpost/wp/2015/08/31/rafael-cruz-my-canadian-born-son-can-be-president/?postshare=2351441041645155

    BUT he said in a Sept. 2012 speech. “I’d like to send him (Obama) back to Kenya, back to Indonesia!”

  40. avatar
    Slartibartfast September 1, 2015 at 12:56 pm #

    John,

    Then you are, in my opinion, a despicable human being who advocates the metaphorical rape of women who have been physically raped. You are probably also a flaming hypocrite who would feel differently if it were the womb of your wife, your daughter or yourself.

    Quite apart from being incredibly stupid, abysmally ignorant and totally dishonest, birthers and others of your ilk almost always prove to be morally bankrupt hypocrites as well.

    You don’t need to worry about original sin, John. You’ve piled up more than enough sin on your slate that is yours and yours alone.

    I hope all of the disgusting karma you’ve been putting out returns to you tenfold.

    john:
    “The child has broken no laws.Why do you want to punish children for the actions of their parents?”

    An interesting setiment indeed which is why I do not condone abortion is case of rape and incest.

  41. avatar
    Crustacean September 1, 2015 at 1:20 pm #

    I have this little app on my phone that can translate lots of languages, but it doesn’t do “speaking in tongues”. So it seems I shall have to carry on without a clue as to what the hell CRJ is talking about. I can live with that…

    CRJ: In the Constitution we have a Reckoning quite clear, and in all else varying degrees of pollution harmful to the Laws of Nature which are firm universal understandings more adequate for a foundation.

  42. avatar
    Notorial Dissent September 1, 2015 at 1:48 pm #

    I don’t know if you are considered a birhter or not, but you are terrorist and considerably an idiot, as you keep proving. That in fact pretty well sums you up.

    Your understanding of Vatel, as well as nearly everything else as I can see, is not just seriously, but is grossly flawed, since that is not what he said at all when referring to the English nation, which by default at the time would have included us. Secondly, and far more tellingly, if the framers had meant what you claim, they would have come out and outright unequivocally said that since it would have been a different meaning than anything prior, they didn’t, and they were more than capable of saying something specific when that was what they meant, and they did so in numerous places, as note the specific age and residency requirements, they fell back on a term which to them had deep and significant and historical meaning, and a meaning which they all took as a given.

    CRJ:
    Born in the U.S. to Citizen Parents was clearly the intent of the Framers for the term, “natural born Citizens”, and to understand otherwise is simply a dereliction of understanding – the beneficiary of the infirm in the propriety of many words when few suffice.

  43. avatar
    Rickey September 1, 2015 at 5:12 pm #

    CRJ:

    In the Constitution we have a Reckoning quite clear, and in all else varying degrees of pollution harmful to the Laws of Nature which are firm universal understandings more adequate for a foundation.

    Natural Law has nothing to do with citizenship.

    Florida used to be part of Spain.
    Louisiana used to be part of France.
    Texas and California used to be part of Mexico.

    Do you really believe that “Nature” changed people born in Florida from Spanish citizens to American citizens?

    The boundaries of countries are man-made constructs, which is why it is man-made laws which determine citizenship.

    The law in the United States is that anyone who is born her while subject to the jurisdiction of the United States is an American citizen at birth.

  44. avatar
    Andrew Vrba, PmG September 1, 2015 at 6:28 pm #

    And to think, we used to put cranks, like CRJ, in nice padded cells, to keep them away from the general populace.

  45. avatar
    nolu chan September 1, 2015 at 10:51 pm #

    At American Thinker, it claims re Plyler v. Doe that “[t]he ‘subject to the jurisdiction’ phrase was not at issue.”

    It appears that it was, constructively. Within its jurisdiction was used. Compared to subject to its jurisdiction, it appears to be indistinguishable for people within a state, see Wong Kim Ark.

    United States v. Wong Kim Ark, 169 U.S. 649, 687 (1897)

    The words “in the United States, and subject to the jurisdiction thereof,” in the first sentence of the Fourteenth Amendment of the Constitution, must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange; and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words, “out of the limits and jurisdiction of the United States,” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof,” in the opening sentence, as less comprehensive than the words “within its jurisdiction,” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”

    Plyler v. Doe, 202 U.S. 202, 211 (1982)

    Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase “within its jurisdiction.” [10]

    – – –

    [10] Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …. .” (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term “jurisdiction” was used. He further noted that it was “impossible to construe the words ‘subject to the jurisdiction thereof,’ in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the States of the Union are not ‘subject to the jurisdiction of the United States.”‘ Id., at 687.

    Justice Gray concluded that “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” Id., at 693. As one early commentator noted, 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. See C. Bouvé, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).

    – – – – –

    A Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States, Washington D.C., John Byrne & Co., 1912, by Clement L. Bouvé, Of the District of Columbia Bar, member of the American Society of International Law.

    Chapter III: Status;
    II (D): Municipal Status (Individual or Communicated);
    2. Under the Immigration laws.
    (B) Through the Acquisition of American Citizenship
    (2.) By Birth in United States Territory.
    (b) Children of Aliens Born
    b. Of Parents Unlawfully Residing in United States.

    [425]

    b. Of Aliens Unlawfully Residing in the United States.

    This point may be considered in connection with the following state of facts: Two aliens, man and wife, both excludable under the immigration laws, succeed in evading the watchfulness of the immigration officials, and in taking up their abode in the United States After living here for a year a son is born to them. Their unlawful presence becomes known to the immigration officers, and

    [426]

    together with their child they are arrested on a warrant of the Secretary of Commerce and Labor ordering their deportation. The facts are admitted. Does the immigration law apply to the son born in this country? Or, in other words, is the child under these conditions born in, and subject to the jurisdiction of the United States? It is admitted that at the time of the arrest the parents had come to this country with the intention of making it their home, and actually established their home here in pursuance of their original design. In the words of MR. JUSTICE GRAY, every subject of a foreign country while domiciled here is within the allegiance and protection) and consequently subject to the jurisdiction of the United States. Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents from acquiring a residence or domicile — it is immaterial which — in this country. True, the parents never acquired a municipal status by virtue of or under the immigration law; and they never acquired a lawful domicile in the sense that they were never entitled to enter for the purpose of establishing a home. But the fact remains that they entered this country and proceeded to reside here, until their arrest, in enjoyment of every benefit which the law of the United States confers on persons lawfully resident here, and under the same duty to carry out their correlative obligations. Their temporary allegiance to the United States was complete and gave rise to reciprocal protection on the part of the state, unaffected by the fact that in order to enjoy and exercise the rights and duties incident thereto they had violated the immigration law.

    This does not mean that an alien may continue in a position of allegiance to the sovereign against that sovereign’s will. The state may prevent the existence of the

    [427]

    condition, by making it impossible for the alien to acquire a residence within its territorial limits, or, if the condition exists may withdraw its protection by expelling the foreigner. But as certain as is the fact that any such alien resides within the limits of a given sovereign state, just so certain is it that the mutual relation of allegiance and protection exists. To deny this would be to deny the fact of sovereignty itself, and the existence of a sovereign right, which, like the inherent right of an independent member of the family of nations to expel or exclude aliens, cannot, in the words of MR. JUSTICE FIELD, “be granted away or restrained on behalf of anyone.” The case under discussion would seem to differ from that of the child is born in detention in this: that the latter at the time of his birth is not residing nor is his mother residing in the United States, and, therefore, he is not born in allegiance to or subject to the jurisdiction thereof; while the child born of alien parents who, though under the immigration law they have no right to do so and are subject at any time to deportation thereunder, are nevertheless residing in the United States and owe temporary allegiance thereto, is necessarily born in allegiance to, and, therefore, is a citizen of this country.

    – – – – –

    [nc note]: Where Bouve speaks of the child born in detention at 427 immediately above, he is referring back to his previous example (pp. 421-25) of two aliens who were not granted admission but were held in detention and who, therefore, were by a legal fiction, not considered to be in the country during detention. It is an interesting question whether the child born of two detained parents considered to have never entered the country is, or is not, considered to be born in the country.

  46. avatar
    y_p_w September 1, 2015 at 11:30 pm #

    Lupin: I wish you would stop dragging your very imperfect understanding of Vattel’s writings in your poorly-phrased argument.

    Vattel is not “frozen” in time. France is a Vattelist country, since Napoleon had Vattelist concepts incorporated into the Civil Code. Yet, France recognizes both jus soli and jus sanguinis (ONE parent, not two!) as equal paths to citizenship.

    What you clumsily attempt to describe does not exist and never existed.

    Isn’t the French implementation of jus soli a little more complicated than in the United States? In the US it’s absolute. I understand that in France one can attain citizenship through jus soli via continuous residence. It sounds like the only unlimited case is if both parents are stateless.

    However, I thought that as a matter of law, the President of France is merely required to be a citizen, without the concept of “natural born” coming into the equation such as in the United States.

  47. avatar
    Lupin September 2, 2015 at 2:46 am #

    y_p_w: Isn’t the French implementation of jus soli a little more complicated than in the United States?In the US it’s absolute.I understand that in France one can attain citizenship through jus soli via continuous residence.It sounds like the only unlimited case is if both parents are stateless.

    Folks over 18 born on French soil from two foreign parents can obtain French citizenship if they currently reside in France and have been residing there for 5 years since age 11. It’s otherwise automatic, if one asks for it.

    y_p_w:However, I thought that as a matter of law, the President of France is merely required to be a citizen, without the concept of “natural born” coming into the equation such as in the United States.

    Unlike you (in this specific very narrow instance) French Law does not differentiate (and never did) between the rights of citizens by birth and those of naturalized citizens. Neither did Vattel, by the way, which is why the birthers’ use of his work is a complete FAIL.

  48. avatar
    y_p_w September 2, 2015 at 1:24 pm #

    Lupin: Folks over 18 born on French soil from two foreign parents can obtain French citizenship if they currently reside in France and have been residing there for 5 years since age 11. It’s otherwise automatic, if one asks for it.

    Unlike you (in this specific very narrow instance) French Law does not differentiate (and never did) between the rights of citizens by birth and those of naturalized citizens. Neither did Vattel, by the way, which is why the birthers’ use of his work is a complete FAIL.

    I take it that you probably understand that there is controversy over “birth tourism” in the United States to establish US citizenship for the child being born. There is actually no residence requirement once the child is born on US soil for the child to be considered a US citizen. I suppose one of the more famous cases (although not necessarily birth tourism because his father came to the US on a performance tour) is the martial arts movie star Bruce Lee. He was born in San Francisco but grew up in Hong Kong.

  49. avatar
    nolu chan September 11, 2015 at 7:25 pm #

    Vattel wrote a text on the Law of Nations, an archaic term for International Law. Such International Law (distinct from Vattel’s text about it) does not control the strictly domestic affairs of any nation, such as how they determine their own citizens.

    https://www.scribd.com/doc/269168881/Common-Law-and-English-Statutes-Adopted-in-American-Founding-Era

    By Constitution or Statute, all thirteen original states adopted so much of the Common Law of England as did not conflict with the U.S. Constitution.

    https://archive.org/details/constitutionuni00pascgoog

    The Constitution of the United States, Defined and Carefully Annotated, by George W. Paschal, of the Bar of the Supreme Court of the United States, Washington, D.C., W. H. & O.H. Morrison, Law Booksellers, 1868, pp. 168-69.

    (Emphasis as in original, “Natural Born Citizen” in small caps transliterated to full caps, marginal notes omitted.)

    168c. On the Tuesday next after the first Monday in November; by act 23d January, 1845. 6 Stat. 121.

    On the first Wednesday in December; by act 1st March, 1792. 1 Stat. 239. All the States now choose the electors by the people. See Story’s Const. § 1475, 1476.

    [4.] No person except a natural born citizen, or a i citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the United States.

    169. “A NATURAL BORN CITIZEN.”—Not made by law or otherwise, but born. And this class is the large majority; in fact the mass of our citizens; all others are exceptions specially provided for by law. As they become citizens, by birth, so they remain citizens during their natural lives, unless, by their own voluntary act, they expatriate themselves and become citizens or subjects of another nation. For we have no law (as the French have) to decitizenize a citizen who has become such either by the natural process of birth or the legal process of adoption. Attorney-General Bates on Citizenship, 29th November, 1862, p. 8.

    The Constitution does not make the citizens (it is, in fact, made by them). It only intends and recognizes such of them as are natural, home-born, and provides for the naturalization of such of them as are alien, foreign-born, making the latter, as far as nature will allow, like the former. Id. We have no middle class or denizens. (1 Sharswood’s Bl. Cora. 374.) Id. 9. But Attorney-General Legaré thought there might be. (4 Opin. 147.) Id. The example of a Roman citizen and St. Paul’s case and claim thereto cited. Id. Paul’s is a leading case of the “Jus Romanum;” it is analogous to our own; it establishes the great protective rights of the citizen, but, like our own national Constitution, it is silent about his powers. Id. 12.

    “NATURAL BORN CITIZEN” recognizes and reaffirms the universal Define principle common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic. Bates on Citizenship, p. 12.

    Every person born in the country is, at the moment of birth, prima facie a citizen. Id.

    Nativity furnishes the rule, both of duty and of right as between the individual and the government. (2 Kent’s Com. Part 4, Lect. 25; 1 Bl. Com. ch. 10, p. 365; 7 Coke’s Rep. and (Calvin’s Case, 11 State Trials, 70) Doe v. Jones, 4 Term. 300; Shanks v. Dupont, 3 Pet. 246; Horace Binney, 2 Am. Law, Reorter, 193.) Bates on Citizenship, p. 12.

  50. avatar
    Keith September 12, 2015 at 9:00 am #

    Lets take an idea from Slarti in another post and let’s explore this a bit, shall we? Assume the founding members really did mean to reference Vattel’s book when they wrote “The Congress shall have power… To define and punish … offenses against the law of nations;” (they did not do that, of course, but we are just supposing for the sake of discussion here, right?).

    What might that mean? Well as to the Vatellian clauses that are of interest to OCT readers, that is Book 1, paragraphs 212 and 214 I believe, it would mean that Congress can define what an “offence” to those paragraphs is. In other words, Congress can legislate about how citizenship works in the United States.

    As I understand it, Congress did just that in 1790, 1795, 1798, and 1802. And that was just in the first 20 years of operating under the Constitution. In 1868 Congress proposed and the States ratified the 14th Amendment. The 14th amendment sealed the Constitutional protection of Vattel’s paragraph 214 as the prime path to ‘natural born citizen’. By the end of the 19th century there were 5 more major pieces of legislation.

    In the first half of the 20th century, there were 13 more pieces of legislation that could be termed under the hypothetical authority to ‘define offenses against Vattel’s Law of Nations and in the second half another 10. In the 21st Century there have already been 4 – all under Bush.

    All that legislation and a Constitutional Amendment exercising Congress’ authority to define and punish … offenses against the (hypothetically Vattel’s) law of nations.

    I don’t see what all the fuss is about. If Vattel is written into the Constitution as some say (I emphasize that he isn’t, but…) then it is giving the Congress the power to “define the offenses” against Vattel. That is Congress defines how to use Vattels book and it has done so repeatedly from 1790 right up to today.

    Of course there is a lot more in Vattel than paragraphs 212 and 214 and Congress has legislated about an awful lot of that too – just as the Constitution gives it authority to do.

    Is there something wrong with this analysis of the hypothetical Vattelian Constitution?

  51. avatar
    Slartibartfast September 12, 2015 at 12:07 pm #

    Nice.

    Just another demonstration that taking ANY birther claim to its logical conclusion results in a contradiction.

    Keith: Lets take an idea from Slarti in another post and let’s explore this a bit, shall we?