October 31, 2018
MY CORNER by Boyd Cathey
BIRTHRIGHT CITIZENSHIP, the Constitution, and the Immense Subterfuge of the Left and the Neocons
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
August 19, 2015, 5:54 pm
Based on the hysterical flailing at Donald Trump——I gather are determined to These same Republicans never object to other candidates who lack traditional presidential resumes—, , and , 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 They seem to believe that the post-Civil War amendments were designed to ensure that the would be citizens, who can then bring in the whole family. 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, 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 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, 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 , had to to argue that he was an American citizen because he was born in the United States. He lost. In 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 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:
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: )—the Constitution
Nonetheless, until Fox News’ “scholars” weighed in, there was little confusion about the purpose of the 14th Amendment. It was to “correct”—as said in 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 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 , who despite not being a Fox News legal expert, was no slouch. He wrote in the 1967 case, that the sponsors of the 14th Amendment feared that:
“Unless citizenship , 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 and place beyond question the freedmen’s right of citizenship because of birth.”
It is true that in a divided 1898 casethe Supreme Court granted citizenship to the children born to immigrants, with certain exceptions, such as for diplomats. But that decision was so obviously wrong, even the 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 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,—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 into a 1982 Supreme Court opinion 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, , 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.