October 31, 2018
MY CORNER by Boyd
Cathey
BIRTHRIGHT CITIZENSHIP,
the Constitution, and the Immense Subterfuge of the Left and the
Neocons
Friends,
The
Leftist hyenas howled…the wimpish, scaredy-cat Republicans wailed…the
television pundits, both on the Mainstream channels and on Fox, and, yes, even
locally, seemed ready to shed tears of anguish punctuating their uncontrolled outrage:
what had Donald Trump done this time
to cause such extreme perturbation? What had he done this time to increase their unleashed hysteria and self-consuming
madness?
Watching
any of the so-called newscasters on CNN, MSNBC or on the other major networks frothing-at-the-mouth,
you would have thought that their pious and frenetic condemnations could not
get more severe. But, yes, Joe Scarborough over on MSNBC could only expectorate
multiple, blustering word clusters, all of which contained loaded phrases about
Donald Trump like “full blown racism,” “appeals to white supremacy,” “undermines
and attacks our democracy,” each more emotional as he went along. Finally, that
Trump was not really “our” president, but in fact an interloper—and if that be
the case, then almost any type of resistance is permissible.
You get
the drift. These are the very same folks who have been telling us since the
pipe bomber and the anti-semitic attack in Pittsburgh last week that the
president is completely responsible for the “climate of hatred and fear,” but
who do all they can to stoke that out-of-control bonfire.
And
locally that pompous social justice warrior disguised as an announcer, David
Crabtree of WRAL-TV in Raleigh, who wears his nugatory Episcopalianism on his
sleeve, could hardly restrain himself. His eyes, however, betrayed both his
anger and his abject fear….
But what
was it that Donald Trump had done this
time? What had inspired such “fear
and loathing” in all those denizens of the lunatic Left…and, yes, in the
Establishment GOP (including a fatuous and obviously self-serving, utterly
stupid statement by outgoing House of Representatives Speaker Paul Ryan)?
Very
simply, the president had said he was seriously considering issuing an
Executive Order to both clarify the application of the 14th
Amendment and, essentially, end birthright citizenship for children of illegal
aliens who come across the US border and then produce offspring who, then, as
if by magic become American citizens.
Recall
that the amendment was enacted after the War Between the States to guarantee
the rights of citizenship to manumitted
slaves and their offspring. And, indeed, there is a serious legal question
about whether the amendment itself was ever legally and legitimately ratified.
But be that as it may, it has applied ever since 1868.
Here is
how Section 1 of the 14th Amendment reads:
Section 1. All persons
born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
As I watched David
Crabtree in his most officiously sanctimonious manner lecture his television
audience about the president’s desire to clarify the amendment’s actual legal
application, like other members of mainstream commentariat he quoted the first
section thusly: “All persons born or
naturalized in the United States are citizens of the United States and of the
State wherein they reside.” Notice the difference; notice the essential
phrase he left out, either by mistake or by direction: “and subject to the jurisdiction thereof.”
It’s a key phrase,
critical to understanding what the authors of the amendment intended and what
for nearly 100 years was settled law up until the 1960s when leftist lawmakers
got into the act simply by de facto practical
applications. In other words, between the very clear and forthright intention
of its authors that the 14th Amendment only applied to slaves and their offspring born in the United State
who are necessarily “subject to the jurisdiction thereof,” and the slyly imposed practice we now have which enables a foreign
woman to illegally slip across the Rio Grande and have a child who then, mutatis mutandis, becomes a citizen and
an “anchor baby,” permitting its illegal relations to all come across—between these two interpretations and applications there is an absolute irreconcilable difference.
The key figures in drafting the amendment at the time were
clear: Senator Lyman Trumbull, pivotal in the drafting the 14th
Amendment, declared “subject to the jurisdiction” meant subject to “complete”
jurisdiction of the United States, and “[n]ot
owing allegiance to anybody else.” Senator Jacob Howard of Michigan, responsible
for the critical language of the jurisdiction clause, stated that it meant “a
full and complete jurisdiction,” that is, “the same jurisdiction in extent and
quality as applies to every citizen of the United States now.” In other words,
a non-citizen simply by giving birth on this side geographically of the Rio
Grande did not produce a new citizen of the United States.
And you can see why
the advocates of open borders who wish to obliterate national boundaries, the
social justice warriors and Democratic activists trolling for potential
dependent voters, and the brain-damaged modernist Christians would so
ferociously oppose a strict constitutional interpretation.
Despite the shrieks
of the open borders crowd and the frenzied left, and despite the groans of the
Chamber of Commerce-bound establishment Republicans (and various Fox pundits
and scribblers for National Review
and other neoconservative and globalist publications), President Trump has
expressed an idea whose time has come, in fact, is far overdue. At the very
least, an Executive Order would force the courts, including the Supreme Court,
to take a serious look at an historic abuse of our immigration system and the
definition of American citizenship. Of
course, Senator Lindsey Graham plans to introduce legislation, so he says, to
do the same thing that the president promises—but Graham has a history of
favoring amnesty, which makes his motives at least suspect. And, more, does
anyone in his right mind, any rational person, actually believe that Congress,
part of which is controlled by the hard Left, and much of the rest by GOP big
donor cheap labor advocates, will actually get off its duff and enact such
legislation? Not likely.
So, here’s hoping
that President Trump will follow through and issue his Executive Order, and
then let the ACLU and far Left howl and the wimpy Republicans wail.
We’ll see you in
court, gentlemen.
Two articles offer
more background, both historical and legal, on this question, and I pass them
on to you: a short legal summary by Professor John Eastman, one of the first scholars in recent times to discuss the legal question seriously; and the second by columnist Ann Coulter who back in 2015 fleshed out some of the implicit issues involved.
By John
Eastman
October 30, 2018 | 6:55pm | Updated
President Trump’s comments are not
even set to air until this weekend, but already they have created a firestorm
of commentary, most of it ill-informed.
It is not “within the president’s
power to change birthright citizenship,” claimed Lynden Melmed, former chief
counsel to the US Citizenship and Immigration Services, echoing the views of
many in the legal academy. Birthright citizenship is mandated by the 14th Amendment to the Constitution, and therefore can
only be “changed” by constitutional amendment, not by mere executive order or
act of Congress, or so the argument goes.
That
view depends on reading the 14th Amendment as actually mandating automatic
citizenship for anyone and everyone born on US soil, no matter the circumstances.
Temporary visitors, such as tourists, students and guest workers, can
unilaterally confer citizenship on their children merely by giving birth while
here, is the claim.
That view has given rise to the
cottage industry known as “birth tourism.” Worse, under this view, citizenship
is automatic even if the parents overstay their visas and become illegally
present in the United States. Worse still, such citizenship is automatic for
children born of parents who were never lawfully present in the United States
in the first place.
In a nation such as the United
States, which is rooted in the idea that governments are formed based on the
consent of the governed, the notion that foreign nationals can unilaterally
confer citizenship on their children as the result of illegal entry to the
United States (and therefore entirely without our consent) is a bit bizarre.
It rewards lawlessness, undermining
the rule of law. It deprives Congress of its constitutional authority to
determine naturalization power.
And it essentially destroys the
notion of sovereignty itself, since a “people” are not able to define what
constitutes them as a “people” entitled, as the Declaration of Independence
asserts, to “the separate and equal station to which the Laws of Nature and of
Nature’s God entitle them.”
That the 14th Amendment settled the
question without ever explicitly addressing it is even more bizarre.
The actual language of the 14th
Amendment actually contains two requirements for automatic citizenship, not
just one. “All persons born or naturalized in the United States” — that’s the
birth-on-US- soil part — “and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.” It is that second requirement, “subject to the
jurisdiction,” that is the source of much confusion today, because to our
modern ear, that just means subject to our laws.
That is one meaning, of course, but
not the only one, and not the one that the drafters of the 14th Amendment had
in mind. For them, being merely subject to our laws meant that one was subject
to our “partial” or “territorial” jurisdiction. It was a jurisdiction
applicable to “temporary sojourners” — what we today call temporary visitors.
It was not the kind of jurisdiction that was codified in the 14th Amendment.
For that, a more complete, allegiance-owing jurisdiction was required.
We don’t need to speculate about
this, as the authors of the 14th Amendment were asked directly what they meant
(albeit not in the context of illegal immigration, since there were no
restrictions on immigration at the time). When asked whether Native Americans
would automatically be citizens under the clause, Sen. Lyman Trumbull, a key
figure in the drafting and adoption of the 14th Amendment, responded that
“subject to the jurisdiction” of the United States meant subject to its
“complete” jurisdiction, “[n]ot owing allegiance to anybody else.”
And Sen. Jacob Howard, who introduced
the language of the jurisdiction clause on the floor of the Senate, contended
that it should be construed to mean “a full and complete jurisdiction,” “the
same jurisdiction in extent and quality as applies to every citizen of the
United States now.” And the “now” that he was referencing was the 1866 Civil
Rights Act, which provided that “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.”
So President Trump is not proposing
to “amend” the Constitution by executive order. He is proposing to faithfully
enforce the Constitution as written, not how it has erroneously come to be
interpreted in the last half century. It’s long overdue.
John Eastman is a
senior fellow of the Claremont Institute and constitutional law professor at
Chapman University.
-------------------------------------------------
Ann Coulter: FOX NEWS Anchored In Stupidity On 14th Amendment
Ann Coulter August 19, 2015, 5:54 pm
Based
on the hysterical flailing at Donald Trump—He’s
a buffoon!
He’s a clown! He calls people names!
He’s too conservative! He’s not conservative enough! He won’t give details! His
details won’t work!—I gather certain Republicans are
determined to drive him from the
race. These same Republicans never object
to other candidates who lack traditional presidential resumes—Carly Fiorina, Ben Carson, Newt Gingrich and Herman Cain,
to name a few. I’m beginning to suspect it’s all about Trump’s opposition to
mass immigration from the Third World.
Amid the hysteria, Trump is the only one speaking clearly and
logically, while his detractors keep making utter asses of themselves.
By
my count—so far—Fiorina, Chris Christie, Rick Perry and the entire Fox News
commentariat are unfamiliar with a period of the nation’s history known as “the Civil War.” They
seem to believe that the post-Civil War amendments were designed to ensure that
the children of illegal aliens would
be citizens, “anchor babies,” who can then bring in the whole
family. (You
wouldn’t want to break up families, would you?) As FNC’s Bill
O’Reilly authoritatively informed Donald Trump on Tuesday night: “The 14th
Amendment says if you’re born here, you’re an American!”
I
cover anchor babies in about five pages of my book, Adios, America, but apparently Bill O’Reilly and the
rest of the scholars on Fox News aren’t what we call “readers.”
Still,
how could anyone—even a not-very-bright person—imagine that granting citizenship to the children of illegal aliens
is actually in our Constitution? I know the country was exuberant
after the war, but I really don’t think our plate was so clear that Americans
were consumed with passing a constitutional amendment to make illegal aliens’
kids citizens. Put differently: Give me a scenario—just one scenario—where
guaranteeing the citizenship of children born to illegals would be important to
Americans in 1868.
[….]
“Luckily,” as FNC’s Shannon Bream put it
Monday night, Fox had an “expert” to explain the details: Judge Andrew
Napolitano, Fox’s senior judicial analyst. Napolitano
at least got the century right. He mentioned the Civil War—and then went on to
inform Bream that the purpose of the 14th Amendment was to—I quote—”make
certain that the former slaves and the Native Americans would be recognized as
American citizens no matter what kind of prejudice there might be against
them.”
Huh.
In 1884, 16 years after the 14th Amendment was ratified, John Elk, who—as you
may have surmised by his name—was an Indian, had to go to the Supreme Court to argue that he was an American
citizen because he was born in the United States. He lost. In Elk v. Wilkins, 112 U.S. 94, the Supreme Court ruled that the 14th
Amendment did not grant Indians citizenship.
The
“main object of the opening sentence of
the Fourteenth Amendment,” the court explained—and not for the first or last
time—”was to settle the question, upon which there had been a difference of
opinion throughout the country and in this court, as to the citizenship of free negroes and to put it beyond doubt that all
persons, white or black … should be citizens of the United States and of the
state in which they reside.”
American Indians were not made citizens until 1924. Lo those 56
years after the ratification of the 14th Amendment, Indians were not American
citizens, despite the considered opinion of Judge Napolitano.
Of
course it’s easy for legal experts to miss the welter of rulings on Indian
citizenship inasmuch as they obtained citizenship in a law perplexingly titled: “THE INDIAN CITIZENSHIP ACT OF 1924.”
Yeah, Trump’s the idiot. Or as Bream said to Napolitano after his
completely insane analysis, “I feel smarter just having been in your presence.”
The
only reason the 14th Amendment doesn’t just come out and say “black people” is
that—despite our Constitution being the product of vicious racists, who were
dedicated to promoting white privilege and keeping down the black man (Hat tip: Ta-Nehisi Coates)—the
Constitution never, ever mentions race.
Nonetheless,
until Fox News’ “scholars” weighed in, there was little confusion about the
purpose of the 14th Amendment. It was to “correct”—as Jack Nicholson said in “The
Shining”—the Democrats, who refused to acknowledge that they lost
the Civil War and had to start treating black people like citizens.
On
one hand, we have noted legal expert Bill O’Reilly haranguing Donald Trump: “YOU WANT ME TO QUOTE
YOU THE AMENDMENT??? IF YOU’RE BORN HERE YOU’RE AN AMERICAN. PERIOD! PERIOD!”
(No, Bill—there’s no period. More like: “comma,” to parents born “subject to the jurisdiction” of the
United States “and of the state wherein
they reside.”)
But
on the other hand, we have Justice John Marshall Harlan II,
who despite not being a Fox News legal expert, was no slouch. He wrote in the
1967 case, Afroyim v. Rusk, that the sponsors of the 14th
Amendment feared that:
“Unless
citizenship were defined,
freedmen might, under the reasoning of the Dred Scott decision, be excluded by
the courts from the scope of the amendment. It was agreed that, since the
‘courts have stumbled on the subject,’ it would be prudent to remove the ‘doubt
thrown over’ it. The clause would essentially overrule Dred
Scott and
place beyond question the freedmen’s right of citizenship because of birth.”
It
is true that in a divided 1898 case, U.S. v. Wong Kim Ark, the
Supreme Court granted citizenship to the children born to legal immigrants,
with certain exceptions, such as for diplomats. But that decision was so
obviously wrong, even the Yale Law Journal ridiculed it. The majority opinion
relied on feudal law regarding citizenship in a monarchy, rather than the Roman
law pertaining to a republic—the illogic of which should be immediately
apparent to American history buffs, who will recall an incident in our nation’s
history known as “the American Revolution.”
Citizenship
in a monarchy was all about geography—as it is in countries bristling with
lords and vassals, which should not be confused with this country.
Thus, under the majority’s logic in Wong Kim Ark, children born to American
parents traveling in England would not be American citizens, but British
subjects.
As
ridiculous as it was to grant citizenship to the children born to legal
immigrants under the 14th Amendment (which was about what again? That’s right:
slaves freed by the Civil War), that’s a whole order of business different from
allowing illegal aliens to sneak across the border, drop a baby and say, Ha-ha! You didn’t catch
me! My kid’s a citizen—while Americans curse impotently under their
breath. As the Supreme Court said in Elk: “[N]o one can become a citizen of a
nation without its consent.”
The
anchor baby scam was invented 30 years ago by a liberal zealot, Justice William
Brennan, who slipped a footnote into
a 1982 Supreme Court opinion announcing that the kids born to illegals on
U.S. soil are citizens. Fox News is treating Brennan’s crayon scratchings on
the Constitution as part of our precious national inheritance.
Judge Richard Posner of the 7th Circuit Court of Appeals is
America’s most-cited federal judge—and, by the way, no friend to conservatives.
In 2003, he wrote a concurrence simply in order to demand that Congress pass a
law to stop “awarding citizenship to everyone born in the United States.”
The
purpose of the 14th Amendment, he said, was “to grant
citizenship to the recently freed slaves,” adding that “Congress would not be
flouting the Constitution” if it passed a law “to put an end to the nonsense.”
In a statement so sane that Posner is NEVER going to be invited on
Fox News, he wrote: “We should not be encouraging foreigners to come to the
United States solely to enable them to confer U.S. citizenship on their future
children. But the way to stop that abuse of hospitality is to remove the
incentive by changing the rule on citizenship.”
Forget the intricate jurisprudential dispute between Fox News
blowhards and the most-cited federal judge. How about basic common sense?
Citizenship in our nation is not a game of Red Rover with the Border Patrol!
The Constitution does not say otherwise.
Our history and our Constitution are being perverted for the sole
purpose of dumping immigrants on the country to take American jobs. So far,
only Donald Trump is defending black history on the issue of the 14th
Amendment. Fox News is using black people as a false flag to keep cheap Third
World labor flowing.