In Plain Text: Anchor Baby Policy Is Unconstitutional

originally posted by: OpenMindedRealist
a reply to: theantediluvian

'Blah blah blah racist blah blah that's my best attempt at logical debate blah blah.'

And this is such a great from of logical debate as well.
Cherry pick and ad hom.
Fantastic.

It has also been convieniently left out that "subject to the jurisdiction thereof..." means Only POLITICAL jurisdiction, and Not legislative jurisdiction. we see this in the previously cited U.S. v Wong Kim Ark (1898). "The evident meaning of these last words is, not meerly subject in some respect or degree to the jurisdiction of the United States, but completly subject to their political jurisdiction, and owing them direct and immediate allegence." The supreme court in this context is refering to a state of the Union, not the US. One with allegiance to a state, is a national. This is a legal status that is defined in 8 USC 1101 (a)(21), and is not interchangable with the term a 'national of the United States'.

This phrase also requires 'domicile', which is voluntary, for one to be 'subject' to legislative jurisdiction. ALL civil statutory law and status have domicile as a prerequisite. Again in Wong Kim Ark it was discussed that the question of naturalization and allegiance is distinct from domicile. Becoming a subject (national) of a country (nationality) is different and distinct from citizenship with certain municipal rights and subject to certain obligations (voluntary).

As used in the constitution, No Public or municial rights are attached, as it is only political jurisdiction aka nationality.

Likewise in Eche v. Holder (2012) we see areas of US legislative jurisdiction like puerto rico, and other 'unincorporated territories' there are limits on 'nationality', but not 'citizenship' when understood in the context of jurisdiction. "Like the constitutional clauses at issue in Rabang and Downes, the naturalization clause is expressly limited to the "United States." This limitation "prevents" its extension to every place over which the government exercises its sovereignty." Naturalization only confers nationality.

No One born and domiciled in a state of the Union, is A "US Citizen" at birth. That is a civil status, that is voluntarily obtained. Constitutional citizen, and national, yes.


As for how can the 14th give 'citizenship' with out giving 'US Citizenship', I submit the three 'senses' of 'United States' as defined in Downes v. Bidwell.

1) The nation that is the United States of America, the sovereign republic amognst the other sovereign nations. This could be called the 'national' sense.

2) The federal corporation and is the 'United States' (Federal Government). This could be called the 'legislative' sense.

3) The Union of states as consolidated under the constitution. This could be called the 'political' sense.

a reply to: theantediluvian

I'll just leave this here.... Switching up How the Executive Offices are Filled. Just in case anyone is interested. It addresses the partisan tension around immigration in relation to how the "parties" differ on the subject of immigration/"anchor babies".

originally posted by: OpenMindedRealist
a reply to: MrSpad
The case you refer to was United States vs. Wong Kim Ark.

Wong Kim Ark, who was born in San Francisco around 1871, to Chinese parents legally domiciled and resident there at the time, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed the specific circumstances of his birth, which included that he was the child of foreigners permanently domiciled and resident in the U.S. at the time of birth.

The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is subject to the jurisdiction thereof acquires automatic citizenship. The Supreme Court's majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to at least some children born of foreigners because they were born on American soil (a concept known as jus soli). The court's dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority's view, would have excluded "the children of foreigners, happening to be born to them while passing through the country".

Ark's parents were permanent residents of the US, and he had been born here. This was a time when moving back to China wasn't so easy as buying a plane ticket, so there was a reasonable assumption that he would permanently reside in the US as well. His parents wanted to become naturalized citizens, but anti-Chinese immigration laws prohibited that.

Not the first time the Supreme Court ruled the wrong way.
m.mic.com...

Well then when random people on the internet can over rule 200 years of Constitutional experts and the Courts rulings then you will be golden. And since that seems unlikely, your simply going to have to amend the Constitution. Good luck with that.

originally posted by: MrSpad

originally posted by: OpenMindedRealist
a reply to: MrSpad
The case you refer to was United States vs. Wong Kim Ark.

Wong Kim Ark, who was born in San Francisco around 1871, to Chinese parents legally domiciled and resident there at the time, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed the specific circumstances of his birth, which included that he was the child of foreigners permanently domiciled and resident in the U.S. at the time of birth.

The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is subject to the jurisdiction thereof acquires automatic citizenship. The Supreme Court's majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to at least some children born of foreigners because they were born on American soil (a concept known as jus soli). The court's dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority's view, would have excluded "the children of foreigners, happening to be born to them while passing through the country".

Ark's parents were permanent residents of the US, and he had been born here. This was a time when moving back to China wasn't so easy as buying a plane ticket, so there was a reasonable assumption that he would permanently reside in the US as well. His parents wanted to become naturalized citizens, but anti-Chinese immigration laws prohibited that.

Not the first time the Supreme Court ruled the wrong way.
m.mic.com...

Well then when random people on the internet can over rule 200 years of Constitutional experts and the Courts rulings then you will be golden. And since that seems unlikely, your simply going to have to amend the Constitution. Good luck with that.

Random people are quoting Constitutional scholars, and there is no Supreme Court ruling that you can speak of, so we are on solid ground. No Amendment needed. We are golden, and it ain't luck.

Time to learn it, time to obey it. Time to ENFORCE it.

Just a thought here. Since the Constitution gives the Congress to regulate immigration it would be simple enough to pass laws to eliminate the problem of anchor babies. They could simply pass a law defining what the term "and subject to the jurisdiction thereof" actually means. The law could simply state " For purposes of immigration and naturalization illegal immigrants are not considered subjecting themselves to the jurisdiction of US laws. Said parents are in the process of breaking immigration law so their child is not eligible. At least one parent must be a legal immigrant or citizen for the child to get citizenship.

That's how I'd solve the problem.

a reply to: ntech

And any Congressional effort to re-define the 14th Amendment would immediately be challenged and go right to SCOTUS who will not overturn the standing ruling. Anyone born on American soil is a citizen. Anchor babies are yet another frigging imagined crisis. A baby born to non-citizens on American soil, does not help their parents gain anything whether visas or citizenship any faster, it doesn't change their immigration status. A person cannot legally act on their parents immigration status until they are 21 years old.

a reply to: buster2010

When you sneak into the country, the country does not know that you are there, so you are not under the jurisdiction of the USA, so you have to leave.

a reply to: ntech

Now this is a good question.

It boils down to one thing, in my opinion: Is choice of 'citizenship' strictly a political question? And if it is, what does that legally allow the courts to involve themselves in, and the legislature to lawfully legislate?

Political question are questions of which the courts will refuse to take cognizance, or to decide, on account of their purley political character, or because their determination would involve an encroachment upon the executive or legislative powers.

I am of the persuasion, tha it indeed is a political question. We saw above in Wong Kim Ark reference to Political jurisdiction, distinct from legislative jurisdiction. We also see that 'citizenship' is a 'political tie' in Talbot v. Janson, 3 US 133 (1795). 'citizenship' is also a 'political sense' per Powe v. United States 109 F 2d 147 (1940).

I would argue that judicial interference with one's choice of citizenship would be involving itself in a strictly political question. However, a court may intervene to prevent the opression of a 'political right' stemming from ones 'citizenship'... as I believe would be the case if congress was to legislate as you mentioned. We can see a basis for this 'protection' in 8 USC 1324b(3)(a).


To Add: a 'political right' are the rights of citizens established or recognized by constitutions which give them the power to participate directly or indirectly in the establishment or administration of government.

I would also argue that political rights are distilled from the coincidence of 'nationality' and 'domicile', and 'citizenship' is a political right, not the grantor of political rights. Though other political rights can stem from 'citizenship'; like voting.

originally posted by: Kali74
a reply to: ntech

A baby born to non-citizens on American soil, does not help their parents gain anything whether visas or citizenship any faster, it doesn't change their immigration status. A person cannot legally act on their parents immigration status until they are 21 years old.

UNTRUE: at birth, a baby can request that they receive welfare, food stamps, health insurance, and housing by their parents completing a request form. Here in Riverside CA, I saw the form and it was setup this way at the county level, so we have to stop the there too.

a reply to: chuckk

I'm pretty sure that you are either missing information or misunderstanding something... perhaps that the parents are here legally on a visa or migrant worker basis.

originally posted by: Kali74
a reply to: ntech

And any Congressional effort to re-define the 14th Amendment would immediately be challenged and go right to SCOTUS who will not overturn the standing ruling. Anyone born on American soil is a citizen. Anchor babies are yet another frigging imagined crisis. A baby born to non-citizens on American soil, does not help their parents gain anything whether visas or citizenship any faster, it doesn't change their immigration status. A person cannot legally act on their parents immigration status until they are 21 years old.

There IS NO STANDING RULING. that is an invalid argument. Hasn't that already been made clear within THIS THREAD?

Anchor babies are only a part of the real crisis, which is the number of immigrants (both legal and illegal) being allowed to take jobs in the U.S. and being given benefits that should only be given to citizens of the U.S. continuing to suck us further into debt and put our citizens further into poverty.

It is only one facet of what we need to do, namely ENFORCE OUR LAWS and place limits on foreign workers. We don't need to be increasing H1B visas, we don't need to be giving any amnesty, we need to prosecute employers that hire illegals.

And we need to remove the big magnet of the anchor babies so people will quit risking their lives to come here when they don't have any means to survive here, as soon we will run out of ways to borrow money to pay for them, and then our citizens suffer.

originally posted by: ntech
They could simply pass a law defining what the term "and subject to the jurisdiction thereof" actually means. The law could simply state " For purposes of immigration and naturalization illegal immigrants are not considered subjecting themselves to the jurisdiction of US laws.

So then as anchor babies are not subject to US laws they could rob a bank or murder someone and there is nothing the police could do about it..... you never stopped and actually thought about that, did you!

a reply to: lakesidepark

Here's a further explanation of the 1898 SCOTUS ruling:

In United States v. Wong Kim Ark, decided in 1898, the Supreme Court rejected the argument, 6-2. The opinion noted that the effect of the proposal “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”

You are quite wrong.

originally posted by: Kali74
a reply to: lakesidepark

Here's a further explanation of the 1898 SCOTUS ruling:

In United States v. Wong Kim Ark, decided in 1898, the Supreme Court rejected the argument, 6-2. The opinion noted that the effect of the proposal “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”

You are quite wrong.

I don't see any qualifiers about how those immigrants referred to in the above got here. How they were screened and cleared and allowed to enter...or if they snuck in.

Without those qualifiers, the statement is incomplete, and not conclusive, as the referred case involved persons legally residing in the U.S., not illegal entrants to the U.S.

Your interpretation of the "who is subject to US Jurisdiction" is incorrect, making the whole thread invalid.

From Cornell University's definition website

The term person subject to the jurisdiction of the United States includes:

(a) Any individual, wherever located, who is a citizen or resident of the United States;

(b) Any person within the United States as defined in § 515.330;

(c) Any corporation, partnership, association, or other organization organized under the laws of the United States or of any State, territory, possession, or district of the United States; and

(d) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by persons specified in paragraphs (a) or (c) of this section.]

Therefore, any person WITHIN THE UNITED STATES is considered under US Jurisdiction. While diplomats are do have some exceptions made due to diplomatic immunity, the US is still responsible for their safety and they are considered under US Jurisdiction while outside their Embassy.

So therefore, an illegal immigrant would be RESIDENT or WITHIN the United States, and therefore OK for their kids to have citizenship.

Your interpretation of the Constitution is flawed.

a reply to: lakesidepark

Further in the article I linked:

Many scholars, myself included, believe their argument has been definitively debunked. There was virtually no federal immigration law in 1868. The Fourteenth Amendment can’t have been silently limited to the children of immigrants who were here with federal authorization, because that category simply did not exist at the time.

Until the 1900's there were no restrictions on immigration, our borders were open except to Chinese people, every other immigrant was legal.

a reply to: babybunnies

You list a subsection in (b)... The constitution does not have those. This looks like a code of federal regulations cite. Please link.

(c) lists 'State'. If this was pulled from statute (USC) or the CFR, we will have too look at the statute or code definition of 'State' if provided. Would also have to see the definition of 'United States' as it may only refer to the Federal Government (or District of Columbia).

Yes, any person in the USA is under the political jurisdiction provided under the constitution, but with [statutory] terms like 'resident' 'corporation' 'individual' 'business' articulated, all I am seeing here is presentation of legislative jurisdiction over statutory US Citizens.

For my edification, please link.

originally posted by: OpenMindedRealist

Those words in bold incontestably make the anchor baby policy unconstitutional. Notice there are two conditions to citizenship:
1. Born or naturalized
2. Subject to the jurisdiction of the US

So who is subject to US jurisdiction? Not a trick question; the answer is logical. US citizens, and children of US citizens, are subject to US jurisdiction. Who is not subject to US jurisdiction? Diplomats, illegal aliens, and anyone else without US citizenship.

You missed the fact that people who are born here, even if their parents are not U.S. citizens, are citizens.

a reply to: hellobruce

They problem is that their parents are illegal immigrants. As such they cannot hold political office or serve in the military. That problem being they are citizens of another country and as such they are not fully under US Jurisdiction. That was the original intent of the phrase "and subject to the jurisdiction thereof". Children with citizenship from another country were not supposed to be eligible for birthright citizenship. They needed to be naturalized. Or have at least one citizen as a parent. Simple location wasn't supposed to be enough to the authors of the amendment.

As to my first post above I do believe the Constitution gives the Congress the power to clarify the meaning "and subject to the jurisdiction thereof" back to it's original intent by the authors.