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  • Enough With the Anchor Babies, Say Some GOP Lawmakers

       November 07, 2005

    The GOP, realizing that it has been losing its base, is finally beginning to address a problem that many on the right consider a serious problem. I received a Homeland Security email update that referenced a Washington Times article entitled GOP mulls ending birthright citizenship. Is this a political ploy on the part of some of these Representatives? Sure, for most - they finally figured out the base has been screaming about this for years, and right now, approaching the 2006 elections, they need us on board. At Dummocrats, we've discussed this issue many times before, especially in the posts Just a Minute, Man and in Illegal Aliens: Your Hearing Is Apparently Optional the particular issue of anchor babies was discussed.

    A Zogby poll reported by on May 6, 2005 found that:

    • A huge majority (81% of respondents) believe local and state police should help federal authorities enforce laws against illegal immigration. 14 percent disagreed.
    • A majority (56%) opposed the Bush plan, and 35 percent supported it when asked, "Do you support or oppose the Bush administration’s proposal to give millions of illegal aliens guest worker status and the opportunity to become citizens?"
    • A majority (53%) agreed and 40 percent disagreed when asked, "Do you agree or disagree that the federal government should deploy troops on the Mexican border as a temporary measure to control illegal immigration?"

    So what's the problem with continuing to bestow US citizenship to babies born in the US? The article Chain Migration is a good breakdown of the situation. Basically, it's like Amway, only it works for pretty much everyone who tries it.

    As a US citizen, that anchor baby can grow up to sponsor the citizenship of other family members, who then sponsor more family members, who then sponsor other family members...

    Chain migration happens because present U.S. immigration policy is based on the principle of broadly defined family reunification; immigrants are able to sponsor their relatives back home to be admitted as immigrants here.1 In other words, most immigrants are admitted simply because they have a relative here who sponsors them, not because of what they might be able to contribute to our society.

    Because of the chain reaction described above, immigration numbers continue to rise. Under the "immediate relatives" category, the parents, spouse, and children of a U.S. citizen are admitted without limit. Therefore, once the law was changed in 1965 to create the so-called family reunification system, chain migration caused the numbers in this category to steadily rise. Five years after chain migration began, the number of immediate relative admissions had nearly doubled (from 32,714 in 1965 to 79,213 in 1970); ten years after, it had almost tripled (to 91,504 in 1975); 15 years after, it was nearly five times higher (151,131 in 1980); 20 years after, it was nearly six times higher (204,368 in 1985); 25 years after, it was seven times higher (231,680 in 1990); less than 30 years after, it was eight times higher (249,764 in 1994); and in 2001, 36 years later, the number of immediate relatives admitted 443,964-over 13 times higher.

    From the Washington Times article:

    Most lawmakers had avoided the issue, fearing that change would require a constitutional amendment -- the 14th Amendment reads in part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
    But several Republicans said recent studies suggest otherwise.
    "There's been recent scholarship that says we can do it by statute, and we ought to try," said Rep. Jeff Flake, Arizona Republican, who usually finds himself on the opposite side of immigration issues from Mr. Tancredo.
    "How in the world can you explain that's a good policy to have? It simply doesn't promote respect for the rule of law," Mr. Flake said.
    Several lawmakers said the U.S. and Mexico are the only major Western countries to have birthright citizenship. Most European countries have moved away from birthright citizenship in recent decades.
    Whether or not this passes, it will at least be an interesting discussion. Now if we can just get our representatives to pull a Tom Clancy - in Debt of Honor, whatever other countries' trade laws were, we just mirrored them. Imagine what it would be like if our incoming illegal immigration policies mirrored Mexico's - instead of educating, providing healthcare and welfare, and even resident discounts for college age illegals that are not available to Americans from other states, they summarily deport tens of thousands of Central American illegals every year.

    Posted by Laura Curtis at November 7, 2005 11:41 AM

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    #  November 7th, 2005 11:54 AM      JohnTant
    I was surprised that the GOP, or more precisely some elements within the GOP, would take this on.

    The 14th Amendment reads:
    "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

    It seems to me the first part of that is being read, but what about being subject to the jurisdiction of the United States? Does that cover a child born of illegal aliens? What about two Swedish people here on vacation, and one of them gives birth? Is that baby a Swede or an American? I'd think that unless the parents are "subject to the jurisdiction thereof," the child cannot be. And I think it's a hard argument to say an illegal alien is subject to the jurisdiction of the United States. If that were the case, he or she wouldn't be illegal.  
    #  November 7th, 2005 12:11 PM      james
    "What about two Swedish people here on vacation, and one of them gives birth? Is that baby a Swede or an American?"

    the baby is an American. whether the baby is a swede or not is up to sweden's law. most countries allow for dual citizenship. in fact, i used to work with a number of people from israel, and most of them purposely had kids while here in the US so that their kids could be dual us-israeli citizens.

    anyone present on american soil is subject to personal jurisdiction in the US.

    if anyone, be it a citizen, tourist, or an illegal alien kills someone in arizona, he is subject to arizona and US law.  
    #  November 7th, 2005 12:34 PM      kris
    As a US citizen, that anchor baby can grow up to sponsor the citizenship of other family members, who then sponsor more family members, who then sponsor other family members...

    so what's your problem with this? this is legal immigration, correct? are you opposed to legal immigration?  
    #  November 7th, 2005 12:55 PM      JohnTant
    Just thinking out loud here, but James, but another side of the argument is that were the framers talking about future births, or those already in the US and considered citizens? In other words, reading " the United States" may be talking about those who were already born. I'm wondering if Congressman Bingham intended to set up a definition of "citizen" for the purposes of the Amendment, similar to how laws have a recital of definitions of terms that are used within that law. That being the case, I don't know that anyone could say the intent of the Amendment was to grant birthright citizenship, but rather to clarify the privileges and immunities clause as applying to citizens. Who are the citizens? Well, the people who were born and/or naturalized here and are subject to the jurisdiction of our laws. Don't know that at the time of ratification our hypothetical Swede baby would be under the US jurisdiction in that sense.

    #  November 7th, 2005 12:58 PM      JohnTant
    I haven't double checked this because I have some projects to finish up, but I thought this was interesting, with my emphasis:

    Allegiance is the key word. Senator Jacob Howard, co-author of the citizenship clause of the 14th Amendment, stated in 1866, "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."

    The Fourteenth Amendment states,"(A) Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

    However a proviso limits foreigners who have babies in America. It couldn't be clearer, children of foreigners, aliens or diplomats, who are subject to the jurisdiction of their home country, are ineligible for citizenship. At the time the Fourteenth Amendment was ratified we didn't have immigration laws. One hundred and thirty eight years later we are paying for the misinterpretation of it.

    #  November 7th, 2005 1:01 PM      Laura
    >so what's your problem with this?

    Just pointing out one of the fruits of uncontrolled illegal immigration - the new, legal, immigrants brought in due to anchor babies are not subject to the normal screening that a regular legal immigrant would be. And it re-opens the illegal immigrant debate again, which is a good thing.

    Additionally, given today's poll numbers, I think it's interesting that Republicans are addressing this problem *now*. They know we're sick of the spending, hopefully they will crack down on that in a serious way now too. They know they're losing the Iraq PR battle, even though we're winning militarily. If Bush would just get out there and talk about the successes more often... I just don't understand why he won't.

    Bottom line - Republicans know they need to get the base back on their side FAST, and immigration and spending reform are two major ways they can do it, since they seem unwilling to engage in the Iraq PR battle.  
    #  November 7th, 2005 1:05 PM      Laura
    I like Frosty - years ago I produced a local talk radio show and set up an hour long interview with him - he's very knowledgeable on a number of issues and a good speaker. Check out his website when you have time, a lot of good reads there.  
    #  November 7th, 2005 10:53 PM      domingoarong
    "Neither the climate nor the soil but obedience and allegiance that makes the subject born."

    The Draft of the Citizenship Clause Senator Jacob Merritt Howard authored on May 30, 1866 as "prefix" to Section 1 of House Joint Resolution No. 127 (Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p. 2890, 2nd col.) reads:

    "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

    His Draft "was agreed to" that same day. It was only a week later, June 8th, that the words "or naturalized," sponsored by Joint Committee on Reconstruction Chairman Senator William Pitt Fessenden, were inserted "by general consent, after the word 'born.'" (Id. at 3040, 2nd col.)

    Following Senator Howard's speech, Senator James Doolittle moved "to amend the inserting after the word 'thereof' the words 'excluding Indians not taxed.'" (Id. at 2890, 3rd col.)

    Senator Doolittle later explains the reason behind his proposal:

    "I moved this amendment, because it seems to me very clear that there is a large mass of the Indian population who are clearly subject to the jurisdiction of the United States who ought not to be included as citizens of the United States...For instance, there are seven to eight thousand [the territory of] New Mexico." (Id. at 2892, 3rd col.)

    Judiciary Committee Chairman Senator Lyman Trumbull responds:

    "What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means...It cannot be said of any Indian who owes allegiance, partial if you please, to some other government that he is 'subject to the jurisdiction of the United States.'" (Id. at 2893, 1st col.)

    Senator Trumbull proceeds to describe where these persons "owing allegiance," or "subject to the jurisdiction thereof," are situated by delineating the territorial extent of the Clause:

    "[T]he first section [Citizenship Clause] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia." (Id. at 2894, 1st col.)

    Senator Howard adds to qualify:

    "[T]he word 'jurisdiction,' as here employed, ought to be construed so as to imply the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States." (Id. at 2895, 2nd col.)

    Unconvinced and still fearful of the consequences of "the very language" Senator Howard used—"subject to the jurisdiction" (as distinguished from "subject to" used two months earlier in the 1866 Civil Rights Act, see NOTE)—Senator Doolittle restates the question:

    "My friend from Michigan will not contend that an Indian can be taxed if he is not subject to the State or to the United States; and yet if they are subject to the jurisdiction of the United States they are regarded by the very language of this amendment to be citizens." (Id. at 2896, 1st col.)

    When the vote was finally taken that day, Senator Doolittle's "amendment to the amendment was rejected" and Senator Howard's "amendment was agreed to" (Id. at 2897, 3rd col.); and the phrase "subject to" now becomes "subject to the jurisdiction thereof."

    Noteworthy during the debate is Senator Doolittle's long-overlooked reason for his apprehension concerning "the very language" Senator Howard employed in defining another category, the now-forgotten SECOND category, of citizens of the United States:

    "But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is whether the language he uses, 'all persons subject to the jurisdiction of the United States,' includes these Indians. I maintain that it does." (Id. at 2897, 1st col.)

    So here, on page 2897 (1st column), Congressional Globe, 39th Congress, 1st Session, May 30, 1866, Senator Doolittle cites the "language" of this SECOND category of citizens of the United States embracing persons NOT "in the United States"—word-for-word, in quotation marks—

    "all persons subject to the jurisdiction of the United States."

    Based on the remarks by Senators Trumbull and Howard quoted earlier here, this SECOND category may also be defined as: All persons owing allegiance "in the territories or in the District of Columbia" (or, using the phraseology of the Thirteenth, "any place," or the dictionary sense of "jurisdiction," "within the territory") over which the constitutional power of the United States extends, the FIRST being "All persons born or naturalized in the United States."

    A SECOND category is consistent with Senator Howard's sponsorship speech, asserting that his Draft "is simply declaratory of what I regard as the law of the land already…by virtue of natural law and national law" (Id. at 2890, 2nd col.)—or birth within the realm and within the allegiance.

    This is the "natural law"-derived English common-law Birthright Rule, "the law of the land already," Sir Edward Coke proclaimed in Calvin's Case (1608):

    "Neither the climate nor the soil but obedience and allegiance that makes the subject born." [See Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human. 73, 82 (1997), a paper on "the natural law origins of birthright citizenship in the common law."]

    During the Civil Rights Act debate, Congressman James Wilson cites Sharwood's Blackstone, Vol. 1, p. 364 (1765) to confirm:

    "Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it." (Id. at 1116, 1st col.)

    He concludes that "It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, 'founded in reason and the nature of government'...The English Law made no declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward." (Ibid.)

    Obviously, "owing allegiance" becomes the qualifier to U.S. citizenship, applicable to both FIRST and SECOND categories, for territory over which "the constitutional power of the United States extends" in the SECOND also includes "territory" in the FIRST—"in the United States."

    So, ALLEGIANCE at birth is the determining factor, the qualifier to place of birth. An alien applying for naturalization is required to take the "Oath of Allegiance."

    Recognition of this SECOND category resolves the lingering confusion on birthright, on the true meaning of "automatic citizenship" in the Clause.

    To Senator Howard, his Draft is Jus Soli—PLUS, for it does NOT confer "automatic citizenship" to anyone born "in the United States."

    In his sponsorship speech, he points specifically to ADDITIONAL "exceptions"—the children of "foreigners, aliens" (Id. at 2890, 2nd col.)—as distinguished from the common-law Jus Soli "exceptions" of only the children of diplomats and "alien enemies in hostile occupation."

    Senator Howard's added "exceptions" are significant.

    Monarchal Jus Soli—based on birth of a "subject" (even an "alien in amity") within a Crown’s FEUDAL realm—is anathema to a Republic where sovereignty resides in "We, the People."

    These "exceptions" are persons born merely "within," and NOT, "subject to," its jurisdiction—as in the phrase "any person within its jurisdiction" in the Equal Protection Clause in the same Section 1 as the Citizenship Clause—applicable to "foreigners, aliens" and diplomats.

    The ALLEGIANCE their parents owe to a "foreign power" ("Tribal" for Indian, Aleut Aboriginals) disqualifies them, including Yaser Hamdi and the so-called "Anchor Babies."

    But, Senator Howard continues, the Clause "will include every other class of persons" (Id. at 2890, 2nd col.), qualifying Senator John McCain born in Panama Canal Zone of parents "owing allegiance," exercising the Law of Nature parental right and duty of Patria Potestas over him.

    ALLEGIANCE is, therefore, the immutable Law of Nature, Divine Law, EQUALIZER, unifying under ONE NATIONAL, FEDERAL UNITED STATES CITIZENSHIP the "irreconcilables"—North and South, Slave and Master, Aboriginal/Native-Islander and Colonizer/Settler, Natural-Born and Naturalized of whatever race, color, creed, or purse.

    The Rights of Freedmen in Territories play a crucial role in the historical context of the Clause in view of the frenzied advocacy of Calhoun's "State Rights" in the South.

    Slavery in the Territories would be at the center of public debate in 1854 following the Kansas-Nebraska Act, which repeals the 1820 Missouri Compromise, and the Fugitive Slave Act, which federalizes the return of escaped slaves found in Free States or Territories to their owners.

    In the District of Columbia, President Lincoln grants to slaves Emancipation in 1862 and the Territorial Abolition Act bans slavery in the current or any future Territories.

    The case of Dred Scott v. Sandford, 60 U.S. 393 (1857), was about slavery in the Territories, involving a slave, Dred Scott. After his master’s death, Scott sues for his freedom, arguing that his stay in Free Territory had made him free.

    The Court rules: (1) The ban on slavery in Territories is unconstitutional and (2) Black Americans are "PROPERTY"; no Negro slave can be a U.S. citizen.
    The American Civil War (1861-65)—the “legislation of war”—overrules this decision.

    After the military battles ended, the Thirteenth Amendment, abolishing "slavery or involuntary servitude…within the United States, or any place subject to their jurisdiction," is ratified in 1866.

    Thus, the two post-Civil War Amendments, 13th (1866) and 14th (1868), convey consistency of intent: Equal protection to persons situated in TWO areas of concern, the FIRST, to persons "in
    the United States"; and the SECOND, to persons "subject to the jurisdiction" of the United States:

    THIRTEENTH Amendment, Abolition of Slavery: FIRST, "within the United States"; SECOND, "any place subject to their jurisdiction."

    FOURTEENTH Amendment, U.S. Citizenship: FIRST, "in the United States"; SECOND, "[all persons] subject to the jurisdiction thereof."

    In 1866, with only 25 States remaining "in" the United States, this SECOND category embraced persons owing ALLEGIANCE within: The 12 ceded territories pending statehood; the 11 Confederate States awaiting readmission for seceding and "owing allegiance" to the "Confederacy," a "foreign power" (with ratification of 13th and 14th/Oath of Allegiance as readmission prerequisites); and the District (NOT State) of Columbia (23rd Amendment assigns Electoral Votes).

    To Senator Howard, his Draft "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 desideratum in the jurisprudence and legislation in this country." (Id. at 2890, 2nd col.)

    Justice Miller in the Slaughter-House Cases, 83 U.S. 36 (1872), reiterates this "great question," this "desideratum" Senator Howard speaks of:

    "It had been said by eminent judges [that]...[t]hose who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens...[The Clause] puts at rest both the questions...It declares that persons may be citizens of the United States without regard to their citizenship of a particular State."

    In other words, the Court affirms that the Clause confers U.S. citizenship upon persons "who had been born or resided always" in certain places other than "in the United States."

    Basic English grammar rules and recognized writing conventions governing the use of a pair of commas that encloses the phrase "and subject to the jurisdiction thereof," with the first comma placed before the coordinating conjunction "and," confirm this still unrecognized SECOND category:

    a) An element enclosed within a pair of commas is "non-restrictive";

    b) The single punctuation mark, comma-plus-coordinating-conjunction, is used primarily to join TWO independent clauses. (The comma, in fact, needs to be marked before the conjunction to avoid a "run-on sentence."); and

    c) For brevity or style, the repeated subject of a compound sentence (or of two independent clauses joined by a coordinator, with the comma preceding it) may be omitted, to be understood rather than to be stated or repeated. (A similar writing convention applies to the compound object "citizens" which is omitted in the phrase "and [citizens] of the State wherein they reside.")

    Grammatically analyzed, therefore, the Citizenship Clause consists of a COMPOUND subject, recast from TWO independent clauses, defining TWO categories of U.S. citizens:

    Clause One: All persons born or naturalized in the United States are citizens of the United States and citizens of the State wherein they reside;

    Clause Two: All persons subject to the jurisdiction thereof are citizens of the United States and citizens of the State wherein they reside (with the adverb "thereof" equivalent to the phrase "of the United States").

    The author joins the TWO clauses together into a compound sentence with the coordinating conjunction "and," placing the grammatically required COMMA before the coordinator to avoid a "run-on sentence," thus:

    "All persons born or naturalized in the United States are citizens of the United States and citizens of the State wherein they reside, and all persons subject to the jurisdiction thereof are citizens of the United States and citizens of the State wherein they reside."

    The author then recasts the compound, deleting the repeated elements common to both Clauses, to create a single Citizenship Clause, defining the TWO categories of U.S. citizens: FIRST category, All persons born or naturalized in the United States; and SECOND category, All persons subject to the jurisdiction of the United States (with the subject "all persons" omitted).

    Yet, the official and judicial view is that the phrase "and subject to the jurisdiction thereof" is merely a "qualifying phrase," modifying the one preceding it, "all persons born or naturalized in the United States"—virtually disowning the other category of natural-born citizens of the United States.

    Constitutionalists should reread and parse the Citizenship Clause to uncover the underlying principle Senator Howard intended it to convey—"the law of the land already," now "national law," by virtue of "NATURAL LAW" Sir Edward Coke quaintly proclaimed in Calvin's Case (1608): "Neither the climate nor the soil but ligeantia [allegiance] and obedientia [obedience] that makes the subject born"—the citizen NATURAL-BORN.

    NOTE: Had Senator Howard really intended the phrase "and subject to the jurisdiction thereof" to modify the phrase "All persons born or naturalized in the United States," he could have simply followed what the same 39th Congress did two months earlier in wording a similar provision in the 1866 Civil Rights Act—OMIT the pair of commas.

    The provision in the Act Senator Trumbull authored reads: "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."

    Thus, had Senator Howard omitted the crucial pair of commas, the phrase in the Citizenship Clause, "and subject to the jurisdiction thereof," would have become "restrictive," a modifier of "All persons born or naturalized in the United States."



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