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Birthright Idiotship

Should babies of "illegal aliens" born here be counted as citizens?

and, while we're at it, does the Constitution answer this:

May we enslave "illegals"?

The answer depends on how we should define "jurisdiction" in the 14th Amendment
according, some say, to what one Senator in 1866 meant by one sentence

          Part 1: Costs to citizens of ending birthright citizenship
          Part 2: The actual case for enslaving illegals by a talk show host
          Part 3: Presidential candidates on the record
          Part 4: Ending Birthright Citizenship with a law: 14th Amendment, Senator Howard, Congressman King
          Part 5: A very thorough analysis from a 1997 Congressional Subcommittee hearing on Immigration

"Jurisdiction" defined & illustrated; examples <> court cases <> Senator Howard's ambiguous grammar
Other Congressmen in 1866 <> The changes read into Howard's statement: "jurisdiction" transformed into "loyalty",
"foreigners" and "aliens" turned into separate groups, "illegal" added to "aliens".


Half the Republican presidential candidates want you to have to hire an immigration lawyer when you have a baby, to prove you are a citizen, if you don't want your baby to be an "illegal", subject to immediate deportation the day of birth.

It doesn't matter if your ancestors sailed on the Mayflower. In fact, it doesn't matter if your ancestors greeted the Mayflower. If Birthright Citizenship (being a citizen by being born here) ends you will have to fill out the same applications that citizens do now when they have their babies abroad. The current filing fee: $600, not counting the cost of the lawyer to fill out the application, whom you will need because the laws governing citizenship by descent are as complicated as centuries of legalism have been able to make them. Neither does that count the cost of your lawyer to fight for you in court, if bureaucrats booboo.

Forget IT jobs. Forget Science, Technology, Engineering, or Math college majors. Send your kids to law school to be immigration lawyers, if you want your kids to get rich after Birthright Citizenship ends. Legislation proposed so far to end it has not provided any simpler way to verify status, or any way for babies born in the U.S. to remain in the U.S., whose parents had any problems with immigration bureaucrats. The 4 million babies born in the U.S. every year will all need very good immigration attorneys.

Lots of possibilities have been proposed for what Congress should make you have to prove to get to keep your baby in the U.S. Both parents can't be checked, if mom doesn't know where dad is, or who he is. Abandoned babies will have to be deported. But to where?

Basically half our Republican presidential candidates want voters to suffer what they have allowed upon America's immigrants, in fulfillment of Luke 6:38 which promises/warns that the opportunities we allow others is the measure of opportunities that will be allowed to ourselves.

Give, and it shall be given unto you: ...For with the same measure that ye mete withal it shall be measured to you again. Luke 6:38

THE LOGIC OF BIRTHRIGHT CITIZENSHIP: THE COSTS SAVED. The logic behind citizenship determined by the location of birth may be that a child's country of birth is an indication of how the child will be raised. If a child grows up in the U.S., he will understand the culture, politics, and language of the U.S, and will not need any special education to be able to participate in its economy and politics. Only quotas have turned U.S. Citizenship into a privilege only available to a lucky few. Before the "first federal restrictive immigration law" was enacted in 1875 - the Page Act, it was treated as a natural right for everyone in the world, and the naturalization process was only a benefit offered so that immigrants who grew up in other cultures, who did not understand the language or the political process, could become equipped to fully exercise their voting rights as citizens. Of course noncitizen parents aren't as fully involved in the U.S. culture as citizen parents, but noncitizen parents who know enough about our culture, to be here when their children are born, will know enough to raise their children with the capacity to exercise their rights as citizens without special training.

Obviously this logic does not explain every case, since there will be many children born here of citizens, who are less equipped to exercise citizenship rights, than many noncitizens born elsewhere! But as a general rule our practice (and indeed the world's practice) serves this logical purpose. Determination of citizenship has to be simplistic, or the process of proving citizenship would be a nightmare. This reason alone is strong enough, in my view, to justify our continued support for this centuries-old practice.

About 4 million babies are born in the U.S. every year. Currently, in Iowa, a certified birth certificate costs $10. The current filing fee for the USCIS to check the citizenship of parents, when their babies are born abroad, is $600. That would total $2.4 billion, not counting attorney fees to file the forms, or to defend you in court when bureaucrats booboo. Senator John McCain spent huge sums fighting off lawsuits saying he was ineligible to run for president because he was born in Panama to citizen parents. Citizenship by descent rather than being born here is governed by centuries of complicated laws that frequently change. All this uncertainty and expense is avoided by Birthright Citizenship.

Who could be citizens without it? "Some say that the clause should be changed so that a baby's parents must be U.S. citizens or lawful permanent residents (green card holders) at the time of the child's birth. Some want to allow U.S. citizenship for the U.S.-born children of active- duty military personnel (even if those parents have no legal status). Yet others would allow citizenship for the U.S.-born children of long-term legal residents such as refugees or asylees, or for children who would be stateless if they were not accorded birthright citizenship. Under some proposed rules, the children of unauthorized immigrants could still claim U.S. citizenship, but the children of lawfully present temporary workers could not; under the language of the proposed state compact, for example, the U.S.-born children of unauthorized immigrants would be U.S. citizens if their parents failed to claim any foreign citizenship for them. Others assert that one parent must be in the United States with the consent of the U.S. government, so that the children of two unauthorized immigrants should be excluded from birthright citizenship. Still others argue that the parents must owe undivided loyalty to the United States; they would deny citizenship to the children of individuals who hold any sort of foreign citizenship, including those holding dual U.S. and foreign citizenship. (Dual citizenship is held by millions of Americans, so this latter interpretation would potentially affect the largest group of American-born children, potentially causing the loss of U.S. citizenship, for example, to the children of Americans who have one Irish grandparent and therefore hold dual citizenship in Ireland and the United States.)"(Is Birthright Citizenship Good for America? by Margaret Stock, Cato Journal, Vol. 32, No. 1, Winter 2012, p. 147)

If today's Birthright Citizenship laws are changed, there are no other ways our laws would allow babies to stay here legally when there is any problem documenting their parents. The bills offered so far to end Birthright Citizenship make no such provision. The babies would be subject to immediate deportation. But to where?

Even when bureaucrats don't booboo, they take years to process simple forms, during which the status of non-citizen parents continually changes. Because of that the bureaucratic Hell which half our Republican presidential candidates wish upon citizens would still be greater for legal residents. Many factors can cause a legal resident to drop "out of status" from time to time during the two or three decades it might take to acquire "lawful permanent residence", which is not particularly "permanent". These fluctuations in status are not very predictable, since some of them depend on how many months or years it will take a bureaucrat to process a form. Likewise the birth date of a baby is not very predictable. Therefore it can be difficult for parents who are here legally to guess whether they will be "legal" on the day their baby is born. In fact that knowledge might not come until some time after the baby is born.

Cato Institute immigration attorney Margaret Stock : "Bottom line: if a state birth certificate is no longer proof that someone is a citizen, then some government bureaucracy is going to have to make that decision. Currently it is decided between the DHS, Department of State, and Federal Judges. They disagree all the time. The State Department will issue a passport, and the DHS will say they don’t think that person is a citizen. Sometimes the DHS and Dept of State say the person is not a citizen, but the person gets a federal judge to say they are.

"Also, the citizenship status of parents will be a moving target, in that since federal laws will continually change, just like our tax code, regarding what evidence is necessary or how long parents had to live here, etc. Every American born will have to wait months for judgment. No SSN, no passport will be issued, before it is decided. No government assistance will be availabl for months. There is going to eventually be a national birth registry to resolve the conflicting rulings of agencies. And of course that will have errors too. A national ID is inevitable."


Jan Mickelson, Des Moines radio talk show host, who is the primary radio "gatekeeper" for presidential candidates wooing Republicans in advance of Iowa's "first in the nation" caucuses, doesn't stop at saying Congress can end Birthright Citizenship without disturbing the Constitution. He says we can also enslave undocumented immigrants, and put them to work building The Wall. He made this statement on August 17, 2015. On August 21 when the Des Moines Register attacked him for it, he stood by his proposal with a seriousness indicating he was not at all joking or making some kind of "point".

I have written for years that if Mickelson can succeed in getting our nation to redefine "jurisdiction" from the 14th Amendment's "birthright citizenship" clause, so that not all babies born here will be citizens, that redefinition would also gut the clause that ended slavery by saying everyone under the "jurisdiction" of our laws must have the "equal protection" of our laws. I am quite sure Mickelson has seen at least one of my articles about that. (Besides emailing him recent articles, over a decade ago, when I was a guest on his show over a decade ago, he told me about the 1997 immigration subcommittee hearing that was the source of his theory, and after I had analyzed it I sent this article to him - this is updated but is mostly the same. I don't have audio of that show but here is audio of a 2007 show.) I had expected and hoped that fact would sober readers into thinking "well, we sure don't want to return to slavery! So if slavery will be made constitutional by tampering with the definition of 'jurisdiction', maybe we should let the word continue to mean what it has for centuries." I did not expect that alerting Mickelson to the possibility of this danger would only excite him.

The U.S. Code enacted by Congress, which recognizes the citizenship of babies born on U.S. soil, (8 U.S.C. 1401), would be relatively easy to change. All Congress would have to do would be to pass a law repealing it. The 14th Amendment, which says the same thing, would be a little more difficult to change. It would require a Constitutional Amendment. At least that is the unanimous opinion of the U.S. Supreme Court, in a line of cases Plyler v. Doe, 1982. Even if the Court is wrong, it will be quite a challenge to stop awarding citizenship to babies born here, as long as the Court unanimously believes that would violate the 14th Amendment. Steve King makes the case that the Supreme Court has not ruled on Birthright Citizenship. To whatever extent that may be, he does not address Plyler v. Doe, 1982, which may not address Birthright Citizenship, but it emphatically rules that undocumented immigrants and their children are under the "jurisdiction" of our laws, which is a stake in the heart of King's legal argument that their babies are not. And Plyler did it by quoting the same authors of the Amendment that King quotes.

Is any of this what we want? Which presidential candidates want this? What would be the effect of an end to our 4 centuries of Birthright Citizenship? What else would happen if we even could end it? And if we indeed can end it, how would we accomplish it? Would we have to change the Constitution, as all courts say and as virtually all other authorites say? Or can it be done by merely passing a law, as Donald Trump, Iowa Congressman Steve King, and Des Moines radio talk show host Jan Mickelson say? These are the questions this article will address.

This article won't even go into the economic foot-shooting of driving away workers we desperately need to save our economy, other than to include this postcard which I have been passing out to presidential candidates:


Presidential Candidates on the record

Should babies of "illegal aliens" born here be counted as citizens?

"No!" shout nine of the 17 Republican presidential candidates as of August 19, 2015.

Trump wrote a thesis on it. He says his "very good lawyers" can end it without messing with a Constitutional Amendment.

Walker said initially said "Yeah, to me it's about enforcing the laws in this country. And I've been very clear, I think you enforce the laws, and I think it's important to send a message that we're going to enforce the laws, no matter how people come here we're going to enforce the laws." What a strange answer to "should birthright citizenship be ended?" considering that "birthright citizenship" is the law of the land, enshrined in the 14th Amendment and in the U.S. Code, in the opinion of every judge who has ruled on it. Fortunately he backtracked later, saying that enforcing existing laws and "addressing the root problems" of illegal immigration would "end the birthright citizenship problem." "We have to enforce the laws, keep people from coming here illegally, enforce e-verify to stop the jobs magnet, and by addressing the root problems we will end the birthright-citizenship problem." Read more:

Carson said "I know the 14th Amendment has been brought up recently, about anchor babies-and it doesn't make any sense to me that people could come in here, have a baby and that baby becomes an American citizen. There are many countries in the world where they simply have recognized that and don't allow that to occur."

Bobby Jindal, who says in his speeches that he was 3 months in his mother's womb when she came here on a student visa, got in over his head when he tweeted: "We need to end birthright citizenship for illegal immigrants." One response: "A baby born on US soil is *by definition* not an illegal immigrant. Can you at least try to be coherent in your malevolence?" 8:11 AM - 20 Aug 2015 - Detailscdogzilla @cdogzilla Another response: "aren't you only able to run for president as a result of being a birth-right citizen to immigrant parents?..."would you sacrifice your citizenship status to commit to this opinion?" Teresa Rusin @TeresaRusin Aug 18 Another: "except for in your case ... Just the "Jindal exception" we'll call it" myopinion @RightonCarl Aug 18 8:59 am "That means you would be deported, Bobby! Hahaha! You're an anchor baby." Marlen S. Bodden @marlenbodden Aug 18 11:07 AM

Actually the candidates aren't talking about depriving babies of legal immigrants of birthright citizenship; just the babies of undocumented immigrants. However, their support is a quote from 14th Amendment manager Senator Howard, that is made to say birthright citizenship is not for "foreigners - aliens", without any distinction between those who came legally vs illegally, since in 1868 it was impossible to come here illegally because there was no law against coming here. In other words, by the only authority cited by anyone for thinking Birthright Citizenship is not required by our Constitution for babies of "illegals", it should not be allowed for babies of legal immigrants either, by which legal theory Bobby Jindal was never a citizen and is ineligible to be governor, much less President.

Rick Santorum said "Other enticements to illegal immigration, such as birthright citizenship, should be ended. Only children born on American soil where at least one parent is a citizen or resident aliens is automatically a U.S. citizen. Of developed countries other than the United States, only Canada has birthright citizenship. And existing laws should simply be enforced." (That is, of course, the U.S. Code and the 14th Amendment mandating Birthright Citizenship.)The grammar is choppy: he would allow Birthright Citizenship "where at least one parent is a citizen or resident aliens". Can one parent (singular) be "resident alients" (plural)? A " resident alien" is anyone who has lived here for a portion of the last 3 years, whether they are documented or not. We may guess that he meant to say Birthright Citizenship should be only for babies with at least one citizen parent, or where both parents are legal "resident aliens". However, if that is what Santorum meant, Jindal would not be a citizen under that standard either; since his parents were here on student visas, through which Green Cards are unavailable; and having a green card is the only other test of whether you are a "resident alien". (However, Jindal's office said his mother came as a "permanent resident" - with a "green card" - not as a student, even though she came here to study.)

Rand Paul actually cosponsored a Constitutional Amendment to end Birthright Citizenship in 2011!

Ted Cruz told host Michael Medved he is still against Birthright Citizenship. He told Meghan Kelley that great constitutional scholars are on both sides of whether ending it will take a Constitutional Amendment or just a law, so we should pursue both approaches. But Cruz refused to answer whether he supported what would be the most direct consequence of his policy. Kelley asked "If you had a husband and wife who were illegal immigrants, and they had two children here who are American citizens, would you deport all of them? Would you deport the American citizen children?...What would President Cruz do? American citizen children, of two illegal immigrants, who are born here, the children, do they get deported under a President Cruz?" Cruz said that is a question for future discussion, but meanwhile we need to pursue what we can do with bipartisan agreement. (Unfortunately there was confusion in Kelley's question which may have accounted for Cruz not answering. The context indicates Kelley's scenario was after Birthright Citizenship is repealed, does Cruz really want to deport children who, under current law, are citizens? In that case Cruz should have been glad to answer, since that is exactly the consequence of his push against Birthright Citizenship. But Kelley's question did not specify "after BC ends", so it could be taken as asking if now, does he hate children so much that he would even like to deport those whom our laws classify as citizens? Were that Kelley's question, Cruz would be right to put it off for a future discussion.)

Chris Christie said "all this stuff needs to be reexamined in light of current circumstances. ....While that may have made some sense at some point in our history, right now we need to re-look at all that. And looked at with respect to the rule of law. And maybe I look at this as a prosecutor...." Ditto what I said about Walker: how can "rule of law" be invoked as an argument that the Constitution has been wrong? Or, how can it be argued that the Constitution is a threat to the "rule of law"? Or, in a national debate where "rule of law" is invoked as an argument to enforce existing law no matter how dumb, where fixing it would apparently undermine "rule of law", how does Birthright Citizenship escape this straitjacket?

Lindsey Graham has long opposed Birthright Citizenship. "I've always been for reforming that. As part of a process, I would like to take that incentive off the table to come here illegally....I'm for immigration reform. I'm for the 11 million. Having non-criminals having a chance to live here all their lives and becoming citizens. I want to break the inducements that lead to illegal immigration - I just think the whole concept is inconsistent with a rational immigration system because it entices people."

That's nine of the 17 Republican presidential candidates who are against it!

That leaves Bush, Rubio, Kasich, Fiorina, Perry, Huckabee, Gilmore, and Pataki. Of these 8, x didn't say it was a bad idea but only that it was so hard that we should prioritize easier things: Kasich, Fiorina, and Perry.

Kasich: In 2010 he supported repeal but now says "we have bigger fish to fry frankly in my opinion, than that issue and that's getting the wall done; making sure that if people violated the law who are here that they are punished for it. But if you've been law-abiding, we're gonna welcome you to a path of legalization. You will pay a fine, there will be a penalty, it'll take time but I think that's the right way to go."

Fiorina: "It would take passing a constitutional amendment to get that changed. It's part of our 14th Amendment. So honestly, I think we should put all of our energies, all of our political will into finally getting the border secured and fixing the legal immigration."

Perry: "I'll let the legal beagles and the lawyers have the conversation about what happens if you did away with the 14th Amendment but, I mean, I have to live with reality and reality is that it takes, at best, years, probably decades, to deal with that 14th Amendment issue - I don't have that much time, I don't think America has that much time, I think we need to be securing the borders and get the borders secure the 14th amendment things seems inconsequential."

Bush appealed to respect for constitutional rights. Pataki appealed to common decency towards children. Gilmore made the strongest statement, declaring the threat to freedom for all of us from such talk. Rubio and Huckabee simply said they were against it.

Bush: "That's a constitutional right. Mr. Trump can say he's for this because people are frustrated that it's abused. We ought to fix the problem rather than take away rights that are constitutionally endowed."

Rubio: "I'm open to doing things that prevent people who deliberately come to the U.S. for purposes of taking advantage of the 14th Amendment, but I'm not in favor of repealing it." Some of Trump's ideas "have merit, but the majority of it is really not a workable plan that could ever pass Congress."

Huckabee: "(the Supreme Court had decided "in three different centuries" that birth in the United States assured one U.S. citizenship. Asked specifically whether he would favor repealing parts of the 14th Amendment, Huckabee replied: "I don't think that's even possible." "Would you favor it?" pressed NPR's host Tom Ashbrook. "No," said Huckabee. "Let me tell you what I would favor. I would favor having controlled borders... but that's where the federal government has miserably and hopelessly failed us."

Gilmore: (while immigration is a) "national security issue that requires tough action," repealing the 14th Amendment to the U.S. Constitution would be "a dangerous step that undermines American liberty....every person born in this country has a right to citizenship" and repealing the 14th Amendment would "set our nation back.... Trump, Paul, Walker, others who support ending birthright citizenship are wrong."

Pataki: "I don't support amending the Constitution to kick out kids who were born here."

(My thanks to Politico for most of these links.)


Trump-King-Mickelson think Birthright Citizenship can be ended without stripping it from the Constitution. That hope rests on their spin on a quote from one of the Senators who helped write the 14th Amendment: Senator Jacob Howard. Here is the Birthright Citizenship section of the 14th Amendment:

"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."
- 14th Amendment

Senator Howard explained, in 1866:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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. - Senator Jacob Howard, 1866

CONGRESSMAN KING'S REASONING. The families of ambassadors are not under the jurisdiction of our laws. If an ambassador or his family member commits a crime, our courts can't prosecute them; the most we do is deport them. Although this fact was part of the discussion in 1866, Congressman King doesn't explain this in his article about how to end Birthright Citizenship just by passing a law. King quotes Howard, but is so far from attributing Howard's exception for families of ambassadors to their exemption from the jurisdiction of our laws, that King writes,

"By its own terms, the language in the amendment precludes the notion of universal automatic birthright citizenship. It would have been quite simple for the language to exclude 'and subject to the jurisdiction thereof' to accomplish the goal of bestowing citizenship on any child born in the United States no matter the status of their parents. The 14th Amendment's addition of a jurisdictional requirement to the territorial requirement, however, denies any interpretation that birth alone grants citizenship." - Congressman Steve King

King writes as if he had never heard of ambassador family exemptions, or as if it never occurred to him that those exemptions were sufficient, all by themselves, to explain the need to list both "born or naturalized" and "subject to the jurisdiction thereof" as requirements for citizenship. King writes as if there must be some further explanation, which he then proceeds to invent. What he invents is a conveniently vague criteria: one cannot be a citizen, though born here, if one's parents have "divided political loyalties". What does that mean? or rather, what is the limit to what that might mean? Does it mean if someone is otherwise a patriotic, law abiding citizen, but votes Democrat? Or could it mean if mom votes Democrat and dad votes Republican? (Noncitizens can't vote, but King figures they do anyway.) Here King resumes from the preceding quote:

"Counter to this logic, proponents of universal automatic birthright citizenship claim that those born in the United States necessarily are subject to the jurisdiction of the country. However, this renders the language 'subject to the jurisdiction thereof' superfluous. Why would the drafters of the 14th Amendment include this qualifier at all if it was met simply by virtue of being born in the United States? [Uh, maybe to make an exception for ambassadors' families?] The legislative history outlined below will make clear that the addition of 'subject to the jurisdiction thereof' was designed specifically to make sure the people granted citizenship did not have divided political loyalties."- Congressman Steve King

There is another category of people who lived in 1866 and were born within U.S. borders and yet were exempt from the jurisdiction of U.S. laws: "Indians", we called them until about 1970 or so; "Native Americans", for you young 'ins born after that. Most of them had their own independent nations with their own separate laws. U.S. police couldn't come into Indian territory and arrest an Indian for any reason. King talks about them later, but does not explain that the reason they were not counted as under U.S. "jurisdiction" is that they were exempt from U.S. laws. Instead of pointing out that obvious, simple difference, he says the difference is that the Indians "maintained their tribal relations", whatever that means. Since he doesn't say what he thinks that means, we have license to guess he means that the Indians visited home, or went to dances, or sent liquor home. By which precedent King would deprive babies born here of citizenship if their parents weren't "assimilated" enough, whatever that might mean.

"Senator Howard also made clear that simply being born in the U.S. was not enough to be a citizen when he opposed an amendment to specifically exclude Native Americans from the Citizenship Clause. He said, 'Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.' Notice the reasoning deployed, Native Americans maintain their tribal relations so they are not 'subject to the jurisdiction thereof.' Senator Edgar Cowan said, 'It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.'"

The 1866 quotes King cites indeed make "maintain their tribal relations" a litmus test of "jurisdiction", but King doesn't tell us about Howard's following sentence which amplifies what he means by the phrase. Howard says "They [Indians] are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations." That is the kind of "relations" that Indians "maintained" which was relevant to whether Indians were under the "jurisdiction" of U.S. laws. King also quotes 1866 Congressman as talking about "complete jurisdiction", and "not owing allegience to anybody else", and "not subject to some foreign power". While any foreigner lives on U.S. soil, he is completely subject to U.S. law, and is not liable to the laws of his homeland for anything he does . He doesn't even have to pay taxes to his home land for earnings here; U.S. citizens abroad have to pay taxes on their earnings there, to the U.S., but we may be the only nation that does that.

There is a difference between "owing allegiance" and "having allegiance" which escapes King. It is like the obedience to our laws "owed" by everyone, but not given by criminals. Criminals don't escape the jurisdiction of our laws over them by disobeying them! Yet King quotes Trumball saying "not owing allegiance to anybody else [to any other nation]" is what he means by "subject to the jurisdiction of the United States"; and upon that basis King concludes that "those granted citizenship [must] have complete allegiance to the United States." Obviously, to King, this would exclude "illegals", since "Logic dictates that illegal immigrants in defiance of the jurisdiction of the United States and citizens of foreign powers are not subject to the jurisdiction of the United States as required by the 14th Amendment."

Apparently the first attempt to end Birthright Citizenship by just passing a law was in a 1985 book: "Yale scholars Peter Schuck and Rogers Smith (1985) published Citizenship without Consent, a book in which they argued that America should move away from its historic birthright citizenship rule. Schuck and Smith said that a rule of "citizenship by consent" - the opposite of a rule that confers citizenship automatically on children born within American territory - was a more appropriate rule for the modern American polity. Although they acknowledged that the American birthright citizenship rule was familiar, easy to apply, and more inclusive than a consensual rule, they argued that it was "anomalous as a key constitutive element of a liberal political system" because an individual's citizenship was determined by the location of his or her birth, and not by the consent of the individual and the society in which he or she sought citizenship (Schuck and Smith 1985: 90). They further argued that the Fourteenth Amendment phrase 'subject to the jurisdiction' could be reinterpreted by congressional statute or by the U.S. Supreme Court to adopt the consent theory and thereby exclude the children of unauthorized immigrants from U.S. citizenship. The arguments raised by Schuck and Smith were later seized upon by others, and have today become a centerpiece in current immigration debates. Most recently, Republican presidential candidates Tim Pawlenty and Herman Cain attempted to distinguish themselves from other candidates for their party's presidential nomination by expressing support for a change in the birthright citizenship rule. They are not alone in their assessment that proposals to change the Citizenship Clause are worthy of support. Such arguments have now become commonplace in some conservative circles." (Is Birthright Citizenship Good for America? by Margaret Stock, Cato Journal, Vol. 32, No. 1, Winter 2012, p. 141)

Reaching for a Rationale

A record shortcut for imagining how to end Birthright Citizenship without stripping it from the Constitution is a plan by Paul Dowling. He notes the "enabling legislation" in Section 5 of the 14th Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." He appears to think this gives Congress power to enforce provisions contrary to this article!


Here again is that single sentence of Senator Howard in 1866:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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. - Senator Jacob Howard, 1866

Trump-King-Mickelson say Howard's statement about what the 14th Amendment means trumps what the 14th Amendment says, because his statement expresses the "original intent" of the Amendment, by which we ought always to interpret the Constitution. But how do you suppose they get out of what Howard said the opposite of what he wrote? Again, here is the clause from the 14th Amendment that he wrote:

"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."
- 14th Amendment

How do they read "foreigners (aliens) who belong to the families of ambassadors" to mean "illegal immigrants" who do not, so far as I know, belong to the families of ambassadors?

It helps their reading to use a little different punctuation. They write "foreigners, aliens, who belong to the families of ambassadors". Their logic gets a little spotty at this point, but I get the impression that with this punctuation they think Howard is describing three separate categories of people who are not under U.S. jurisdiction: (1) foreigners, (2) aliens, and (3) who belong to the families of ambassadors. Than they take that word "aliens" and put the word "illegal" in front of it. They only add that "illegal" to help poor Senator Howard out, who had never heard of an "illegal alien", since it would be another 14 years before the first U.S. law made it "illegal" for anyone to come here. (The Chinese Exclusion Act, which made any Chinese immigration at all illegal for the next 60 years.)

It is still quite a stretch, since (1) "foreigners" and "aliens" do not describe two separate categories but share the same definition; (2) "who belong to the families of ambassadors" needs a noun to modify or it doesn't identify anyone; and (3) the only noun available for it to modify is "Foreigners", or in other words, "aliens". Which leaves only one possible category of people that Howard could possibly have meant, not three. And that group of people are families of ambassadors: no one else.

Now perhaps you are wondering why Trump-King-Mickelson changed the punctuation? Well, actually they didn't. I did. I cheated. The punctuation they cite is the way it is printed in the Congressional record. So why did I change it? To make it a little more clear. Confusing punctuation or grammar is the playground of revisionists, in the same way that obscure Bible verses are the playground of cults. (When you build some weird theology on a verse that most struggle to explain, it is harder for others to prove you are wrong.) But as I have shown, not even the punctuation of the Congressional Record can justify the interpretation of Trump-King-Mickelson. But a little confusion makes it possible to read what isn't there if you are determined enough to read it, just as blurring an image makes it easier to imagine you see what isn't there.

Keep in mind that there was no punctuation in the original. It was a transcript. It was all taken down in shorthand. Transcribers don't go up to Congressmen and ask them, "Excuse me, I didn't hear whether you put a comma there or a parenthesis?" We would have no confusion about this today if only transcribers in 1866 had known about Victor Borge's "Phonetic Punctuation".

Bible students know it's the same with New Testament Greek. And not only did Greek then have no punctuation at all, they didn't even put a space between words! And it was all caps! These are conveniences inserted by translators which it pays to remember sometimes when a translator's guess proves confusing.

Here is a simple description of how Birthright Citizenship works today according to another Congressman in 1866. This sounds like pretty much the opposite of Howard's statement as spun by Trump-King-Mickelson, though without that spin this sounds like it could have been said by Howard himself: "Every person born within the United States, its Territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."

That's a quote from Representative Wilson, Chair of the House Judiciary Committee. I don't think Trump-King-Mickelson quote it. Wilson was quoting William Rawle, whose constitutional law treatise was one of the most widely respected authorities of the time. Wilson was explaining part of the Civil Rights Act of 1866, which, he said, wasn't anything new but was "merely declaratory of what the law now is." Nor was the 14th Amendment intended to contradict what the Civil Rights Act said about Birthright Citizenship, since the two were passed by the same Congress, and there was an expressed intent to establish the principles of the Civil Rights Act into the Constitution itself:

Senator Conness: "The proposition before us ... relates ... to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so."

Notice Wilson uses the phrase "Natural Born Citizen". That is the same phrase the Constitution uses to define who is eligible to run for President. Not only is everyone born here a citizen, no matter who his parents were or what they did, but he is eligible to become president.

How tragically wrong Senator Howard was when he concluded his argument for his Birthright Citizenship clause in the the 14th Amendment by promising:

It 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 great desideratum [thing desired] in the jurisprudence and legislation of this country. - Senator Jacob Howard, 1866

Obviously Senator Howard had never met Trump-King-Mickelson.

The 1997 Congressional Hearing on Birthright Citizenship

Pam Slater, on the San Diego County Board of Supervisors, told a 1997 Congressional hearing, "we in San Diego County have been exposed, by our local news media, to scenes of expectant mothers in labor circling hospital parking lots in their cars, waiting until the last possible minute to enter the hospital. The child is delivered soon after the mother is admitted, denying authorities the chance to deport the mother." The mother then receives free hospital care, and the baby recieves a birth certificate as a U.S. Citizen, and a Social Security number qualifying him for welfare."

"No!" shout many Americans. "That is a loophole we need to close! Those babies have no right to be citizens! They have no right to receive the welfare for which citizenship makes them eligible! They are here illegally and should be deported!"

But the same laws, which "illegals" are accused of breaking, say their babies are U.S. Citizens, and have said it for a lot longer than any Undocumented Lawyer has ever said their being here is "illegal". Our laws say they should not be deported, and they are eligible for basic welfare such as milk and food stamps. Like it or not, that's the law of the land.

Is our reverence for the Rule of Law suspect, when we treat as sacred the laws which say unauthorized immigrants are here illegally, but undermine as straight from Hell the laws which say their babies born here are U.S. Citizens?

On June 25, 1997, that was the issue before the hearing of the Subcommittee on Immigration and Claims of the Committee on the Judiciary in the House of Representatives. HR 7 was debated, which would have stripped babies born to unauthorized immigrants of any right to U.S. citizenship.

One of the unanswered questions at the hearing was what would then be done with them, since they would mostly be stateless, since it is questionable whether any other nation would receive them as citizens either? One Congressman proposed arbitrarily assigning to the baby citizenship of another country, which would solve the problem of what to enter on the USCIS form, but not the problem that, what if the country assigned to receive them as citizens doesn't want to give them the rights of citizenship? Another unanswered question: if the babies are not U.S. Citizens, and therefore should be deported, to what country would we deport them? And how would we sneak them into a country that refuses them? Should we go to war against countries that refuse them, or that shoot down our airplanes which attempt to airdrop deportees into their forests?

Congresswoman Lofgren expressed some of these concerns: "One result [of not granting citizenship to babies born here to unauthorized immigrants] would be that many American-born, would-be citizens, would instead be rendered ''stateless,'' citizens of no country. Many countries do not automatically ascribe citizenship based on parental citizenship. For instance, the child of an American born overseas can obtain derivative citizenship through its parents, but only if she returns to claim it within a set period of time. Therefore, a child born here to foreign parents could very conceivably be without a country, as would all of his or her descendants if he or she did not marry a citizen. These people would have nowhere else to go, and would be forced to remain here, hoping to avoid detection by the government. With policies such as these we could be creating perpetual generations of stateless, undocumented aliens. I do not see how this constructively addresses the illegal immigration problem."

"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." -- from the 14th Amendment to the Constitution, passed by Congress June 13, 1866, ratified July 9, 1868.

Upon our definition of the word "jurisdiction" hangs the fate of millions of babies born here to unauthorized immigrants. The "Send 'em South" folks believe "jurisdiction" means "loyalty", and since "illegals" prove their "disloyalty" by violating our laws by coming here, they are not under U.S. "jurisdiction", so therefore their babies born here are not U.S. citizens.

What the "Send 'em South" folks will not tell you is that their redefinition of "jurisdiction" also removes from unauthorized immigrants the "equal protection of the laws", which the 14th Amendment says must be given to everyone under the "jurisdiction" of our laws, which is the only thing in the Constitution keeping us from enslaving them!

If "jurisdiction" really means "loyalty", then there is nothing in the Constitution to keep us from solving the "problem" of "illegal aliens" by simply turning them into slaves! Why don't we just do that, and get some use out of them? As Mickelson says, we can make them build our Wall.

The 13th Amendment outlaws slavery for innocent people, but allows it as "punishment for crime", and "illegal aliens" are guilty of a crime! Here is the 13th Amendment, passed by Congress January 31, 1865, and ratified December 6, 1865, one year after the Civil War ended: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

In fact, the huge loophole the South found in the 13th Amendment was to simply enact laws which no one could obey, which applied only to Blacks, making them all "criminals", which made enslaving them "constitutitional" again! The 14th Amendment was enacted to close that loophole by giving everyone under our laws the equal protection of our laws.

The 14th Amendment prohibits states from depriving "persons" of liberty, but only "without due process of law". As long as an "illegal alien" has been properly convicted in a court of law of violating our laws by being here, we may deprive him of his liberty.

The 14th Amendment guarantees "equal protection of the laws", but only to those under U.S. "jurisdiction". The 14th Amendment doesn't let any state "deny to any person within its jurisdiction the equal protection of the laws", but if "jurisdiction" means "loyalty", and if "illegal aliens" prove their disloyalty by coming here against our laws, then they are not under U.S. "jurisdiction" and the Constitution does not give them "equal protection of our laws.

Therefore, absolutely nothing in the Constitution prohibits us from enslaving "illegal aliens" and putting them to good use. That is, if "jurisdiction" means "loyalty".

However if Americans allow "jurisdiction" to mean the same thing it has for centuries, then Birthright Citizenship opponents aren't the only ones due for a lecture on their violation of "Rule of Law". Just about everyone else is, too. Because just about everyone else declines to question the quotas which deprive immigrants in general of "equal protection of the laws". There is nothing about our immigration laws that gives immigrants under our laws "equal protection" with the citizens under our laws, or even with each other. When two immigrants make the exact same application and have the exact same qualifications, but one is not allowed to come because of a quota, that is not the "equal protection" which our Constitution requires. We don't call it "freedom of religion" if quotas allow only 10% of citizens to attend the church of their choice. We still called it "slavery" when 10% of Blacks in the South were lucky enough to become free. We should not call it "liberty" when our quotas allow 10% of immigrants to come legally, and 90% are classified as "illegals" without regard to any of their qualifications or actions. (See a legal brief making these arguments.)

But no one on either side of the 1997 Congressional Hearing debate made the connection between the effect of our defintion of "jurisdiction" on citizenship for babies born here to unauthorized immigrants, and the effect on "equal protection of the laws" for their parents. No one but me, that I know of, brought that up before August 17, 2015, when Jan Mickelson came out in favor of slavery. So the remainder of this article, reporting on the 1997 hearing, will report only on the arguments surrounding how to define "jurisdiction" in the context of citizenship for babies.

"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."

Does that sound to you like babies born here to "illegal aliens" (unauthorized immigrants) are citizens, or not? Are those babies "subject to the jurisdiction" of the U.S.?

The Supreme Court has consistently said they are. In fact, the Court says not only the babies, but the unauthorized immigrants themselves, are "subject to the jurisdiction" of the U.S. That point was not even controversial within the Court in 1982; all 9 justices unanimously agreed that is a fact. (Plyler v. Doe).

"Jurisdiction" Defined. For those of us who don't work the word "jurisdiction" into a sentence every day, first we will see what dictionaries say about the word, and then we will see how the "Ship 'em South" movement defines it. Remember that the purpose of all this is to understand whether unauthorized immigrants are subject to the jurisdiction of the U.S.

Here's what the dictionary says about it: "sphere of authority, or territorial range of authority". "Authority" means "the power or right to enforce obedience to commands."

To say the U.S. has jurisdiction over all within its borders is to say U.S. law enforcement can arrest anyone on U.S. soil for violating U.S. laws. To say parents have jurisdiction over their children is to say that parents can punish their children when they disobey.

From Black's Law Dictionary (4th Edition, 1968): "It is the authority by which courts...decide cases." It is "the legal right by which judges exercise their authority." "It is the authority, capacity, power or right to act." "It is the power conferred by the Constitution or by law." "'Jurisdiction of the person' is power to subject parties in a particular case to decisions and rulings made in such case."

Examples of jurisdiction (As the word is traditionally defined). We don't have jurisdiction over our neighbors' children, so long as they remain in their own homes. But when they come into our homes, we have limited jurisdiction to punish them for violating our rules. We can't punish them as freely as we punish our own children, but we can punish them at least enough to restrain them from harming us. However, governments are unrestrained in punishing citizens of other countries who are on our own soil. The only difference is that when our government punishes foreign criminals, deportation may become part of the punishment. When foreigners wind up in our jails, or Americans wind up in foreign jails, especially prominent or innocent individuals sometimes stir international attention and their fate is negotiated by governments. But that is the exception. You do not want to wind up in a foreign jail.

Cities, through their local police, have jurisdiction to punish violations of city laws within their city limits. States have jurisdiction to punish violations of state laws that occur within the state; but they have no jurisdiction to enforce city ordinances. However, county courts have jurisdiction over violations of both city and state laws. Federal courts have no jurisdiction over city and state laws. Federal marshals have jurisdiction to arrest people for violations of federal laws, but no jurisdiction to arrest anyone for local or state law violations. Pastors have jurisdiction to manage conflicts within their churches, but not within other churches. Employers have jurisdiction to lay down rules for their employees, but when an employee quits, the employer loses jurisdiction over him.

Examples of people in the U.S. who are exempt from U.S. jurisdiction. A small number of foreigners are exempt from our laws while they are here.

Ambassadors from other countries have "immunity" from most laws, and even if they commit felonies, they will not go to jail but only be deported. Ambassadors to the United Nations in New York are notorious about, for example, parking anywhere they like, not minding overtime parking tickets. (In New York parking tickets are big business.) Because ambassadors from other countries, and their families, are not subject to the jurisdiction, or authority of the U.S., their babies born here are not citizens, according to the 14th Amendment.

The American Council for Immigration Reform explained, at the 1997 hearing, that "the Vienna Convention on Diplomatic Relations (23 UST 3229) empowers the President to declare a diplomat persona non grata (Article 9). Article 31 of that treaty, while establishing the diplomat's 'immunity from the criminal jurisdiction of the receiving State', does not exempt the diplomat from that state's 'civil and administrative jurisdiction' in the case of private ownership of real property, or private actions as an 'executor, administrator, heir or legatee,' or in a 'professional or commercial activity.' That's a lot of 'jurisdiction thereof' but surely not the kind the framers of the 14th were thinking of."

Congresswoman Lofgren explained it this way at the 1997 hearing: "...if you are here without legal documentation and you steal something, you're subject to the jurisdiction of the laws of the United States for purposes of criminal prosecution. If you're a diplomat and you steal something, you are not."

She acknowledges, next, the wide gap between her definition of "jurisdiction" and that of Congressman Bilbray: "And the cases, I think, are very clear that that is the distinction made in the 14th amendment. I know Mr. Bilbray disagrees, but I think the cases are abundantly clear."

Native Americans have "immunity" from many of our laws, while they remain on their own land -- their reservations. A notorious example of their exemption from our laws is their freedom to build gambling casinos on their reservations without waiting for approval from the legislature of the state they are in. Residents of reservations likewise do not pay the taxes the rest of us do, unless they work off their reservations. Thus the 1866 Civil Rights Act which anticipated the 1868 14th Amendment added an exception for "all Indians not taxed". Native American babies were not citizens of the U.S.

Senator Doolittle tried to amend the 14th Amendment with the same phrase: "excluding Indians not taxed." But Senator Howard objected to the redundancy, saying, "I hope that amendment to the amendment will not be adopted. Indians born with the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations."

(In 1868, Indian lands really were independent nations, more so than now. They were able to defend themselves with their armies, exclusively administer their own justice within their territories, and negotiate formal treaties with the U.S. As this gradually changed, Congress, in 1924, gave the rights of U.S. citizenship to all their babies, but not because anyone thought the 14th Amendment required it.)

Controversy remains today over what this says about babies of unauthorized immigrants. Congressman King says today: "in 1884, the Supreme Court addressed a claim of citizenship in Elk v. Wilkins. The Court held that John Elk did not meet the jurisdiction requirement of the 14th Amendment because he was a member of an Indian tribe at birth. The Court said that even though Elk was born in the U.S. he did not meet the 'subject to the jurisdiction thereof' requirement because that required that he 'not merely be subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction.'"

King minimizes the fact that as a tribe member in Indian territory, his parents were not subject to U.S. political jurisdiction hardly at all, if at all. In 1997 the American Council for Immigration Reform, arguing against Birthright Citizenship, talked about the same case. It told the 1997 hearing, "In a precedent, powerfully argued and never overturned, the Court ruled that" Elk, born on Indian land but who later lived with non-Indians, and who now wanted to vote, was not automatically a U.S. Citizen even though he was born on land which later turned into the state of Nebraska. He still had to go through the naturalization process and meet its requirements. "Naturalization, the Court further asserted, meant not only formal renunciation of his old allegiance but 'acceptance by the United States of that renunciation....' In effect they ruled that the citizenship of a child at birth depended on the allegiances of the parents. Though Elk's parents had far greater claims than any illegal alien (try deporting an American Indian), their allegiance to their tribe meant that their child was not born a U.S. citizen."

The theory that "the citizenship of a child at birth depended on the...acceptance by the United States of" some manner of "renunciation" that occurred at birth is ominously like this summary of the reasoning of the infamous Dred Scott decision in which the Supreme Court established slavery "forever": "In reaching its decision, the Supreme Court held that mere birth on U.S. soil was not enough to confer U.S. citizenship; one also had to show that the political community had consented to one's presence." (Is Birthright Citizenship Good for America? by Margaret Stock, Cato Journal, Vol. 32, No. 1, Winter 2012, p. 141)

Notice how this interpretation makes much of "the allegiences of the parents", which the Court said nothing about, as this interpretation admits by saying "in effect they ruled". This is part of a theory that "jurisdiction" is, not authority over you, but your "loyalty" to authority! (More about that later.) But to the Court, and in the traditional view of the relationship of "allegience" and "jurisdiction", allegience in your heart is not something which any government has the capacity or business to judge. On the contrary, when the Court says "allegience is owed", it means if you take treasonous actions towards the authority over the land upon which you live, that authority may punish you.

What kind of theory makes a child a citizen or a noncitizen based on the political preferences of his parents?!

The Supreme Court case that ruled on Elk's right to vote was Elk v. Wilkins 112 U.S. 94 (1884). The American Council for Immigration Reform's interpretation of the case was countered at the 1997 hearing by Dawn E. Johnson, acting assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations."

She attacked the view that "jurisdiction" means, not the power which an authority has over you, but your loyalty to the authority:

"Wilkins cannot be interpreted to mean that children born in the United States of aliens are not 'subject to the jurisdiction' of the United States because their parents may owe some allegiance to their own country of birth. Indeed, were the contrary to be true, [if partial allegience to another country prevented a U.S. citizen from being subject to the jurisdiction of the U.S.], dual nationality would be prohibited. Legal and illegal aliens alike simply enjoy no jurisdictional immunities from any laws of the United States as long as they are not part of the diplomatic personnel of a foreign country, and neither do their children. The denial of citizenship to tribal Indians was later corrected by statute."

Foreigners who bear children on a foreign ship in a U.S. harbor aren't citizens, either, U.S. laws have no authority on board a foreign ship, even if the ship is docked at a U.S. port. They might as well be born in a foreign country.

Alien enemies who invade our land and, while occupying our land, have babies, would not receive citizenship for their babies according to the 14th Amendment, because neither they nor their babies are subject to the jurisdiction of our laws! Of course this hasn't happened yet, but theoretically, if it did, we wouldn't want the children raised by our invaders voting for our leaders!

When you hear people describe unauthorized immigrants as "invaders", part of their reason for this terminology is to justify their interpretation of the 14th Amendment as not regarding babies born here to unauthorized immigrants as "subject to the jurisdiction" of the U.S.! However, unarmed, unorganized unauthorized immigrants are a whole lot more vulnerable to arrest and punishment for violating our laws, than armed, organized invading armies would be!

These are the same four exceptions to automatic citizenship by birth listed in United States v. Wong Kim Ark (1898). The Court did not describe any other exceptions, than these four (although "Send 'em South" folks offer an argument for why the Court might have added a fifth category for "illegal aliens", had that issue been squarely before the court). The four exceptions make sense, don't they? Not only have these exceptions been the law of the U.S. and England for the past 500 years, (well, for almost 400 years they have affected Native Americans), but aren't they common sense?

Do you think the reasons, which exempt these groups, apply to unauthorized immigrants? Do you think unauthorized immigrants are not subject to the jurisdiction of the U.S.? If they aren't subject to the jurisdiction of the U.S., how is it that the USCIS can arrest and deport them? But that's if you think "jurisdiction" means the right or power to enforce obedience to commands. But if you think "jurisdiction" means one's loyalty to authority, and you argue that unauthorized immigrants must not have very much loyal to U.S. laws since they violate U.S. laws by coming here, then tell me what country does have this kind of "jurisdiction" over them? Can you say they are "loyal" to Mexico, when they risk all to come live in the U.S., leaving their homeland behind? Surely no one can question their loyalty to all the hope and equal opportunity that America represents, except for its laws that give them no access to that "equal opportunity" because of an arbitrary quota figure that lets only a tiny fraction of applicants in. Surely no one can question that their sacrificial determination to grab a share of the American Dream exceeds that of most U.S. citizens.

Dawn Johnsen, assistant attorney general, DOJ, put it in perspective this way:

JURISDICTION. "Most important for our purposes today is the phrase 'subject to the jurisdiction thereof'. Because H.R. 7 seeks to deny citizenship to certain children born in the United States by defining this jurisdictional phrase to exclude those born to parents who are not themselves citizens or permanent resident aliens, such a bill would be flatly unconstitutional. Congressman Bilbray, of course, is right when he says that we must interpret all words in the Constitution to have meaning. So the question is, what is the meaning of that phrase ''subject to the jurisdiction thereof?''

"We know the answer to that question from the legislative history of the 14th amendment and from governing Supreme Court case law. The 14th amendment's use of 'subject to the jurisdiction thereof' does nothing more than incorporate four well-defined exceptions to the rule of American birthright citizenship. Three of those exceptions are as old as the common law rule itself. By common law, children born to foreign diplomats, on foreign ships, and to any occupying forces were consistently deemed not fully subject to the sovereign and, therefore, not citizens by birth.

"The final exception captured by this phrase, in some sense related to the others, was that of children born to American Indians who were recognized as owing direct allegiance to the tribes of which they were members. Individuals in these four categories were deemed to have varying claims of exemption from the rules governing the American polity and, therefore, were excluded from the rule of automatic citizenship.

"Aliens, in contrast, whether temporary or permanent, legal or illegal, do not enjoy any comparable claim of not being subject to the full jurisdiction of the United States. To the contrary, as the Supreme Court said in Wong Kim Ark, and I quote: ''It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides ... [and] owes obedience to the laws of that government and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.'' As Wong Kim Ark further explains, the alien's, ''allegiance to the United States is direct and immediate and, although ... continuing only so long as he remains with in our territory, is yet ... strong enough to make a natural subject, for if he has issue here, that issue is a natural-born subject.''

Congressman King thinks this precedent is irrelevant to Birthright Citizenship! He reasons, "Proponents of birthright citizenship for illegal immigrants point to the 1898 Wong Kim Ark case. However, that case dealt with a man that was born to parents that were legally and permanently domiciled in the United States at the time of his birth. In that case, there was more expansive language used on birthright citizenship, but it was neither the holding of the case nor does it operate as binding precedent on the Court or as the law of the land."

(The "holding of the case" is the short list of conclusions upon which the ruling was based, found at the beginning of a ruling.) I don't suppose much of any case before 1900 would be treated as "binding precedent" by today's court! But when the Court says something can "hardly be denied", which King denies because its acknowledgment destroys his entire argument, that certainly isn't a case in King's favor! What Wong Kim Ark said "can hardly be denied - that an alien is completely subject to the political jurisdiction of the country in which he resides..." was emphatically affirmed in 1982 by Plyler v. Doe, a case King does not mention.

King "argues from silence" that because a 2004 case was silent about Birthright Citizenship where it would have certainly been interesting to say something about it, that therefore the Supreme Court no longer supports Birthright Citizenship. King writes, "While some have discussed birthright citizenship as if it is settled law that any person born in the U.S. is a citizen, the Supreme Court has never ruled as such. In the famous 2004 Supreme Court case, Hamdi v. Rumsfeld, Taliban fighter Yaser Esam Hamdi was discovered to have been born in the United States to parents that were subjects of the Kingdom of Saudi Arabia. Even though he was born in the United States, the Court never called him a citizen and the Court made no declaration in that case that anyone born on American soil was automatically a citizen."

Cato Institute attorney Margaret Stock has a different spin on the case: " scholar John Eastman (2008) argued in an amicus brief filed with the U.S. Supreme Court that a change in the Court's interpretation of the Citizenship Clause could retroactively take away the U.S. citizenship of Yaser Hamdi, a U.S.-born citizen who was captured fighting against American forces on the battlefield in Afghanistan. He argued that the Court could punish Hamdi by reinterpreting the Citizenship Clause to take away Hamdi's birthright citizenship, because Hamdi was born in the United States to parents who held temporary work visas at the time of his birth (Eastman 2008: 957-58). Eastman's proposed new interpretation, however, would have taken away not only the U.S. citizenship of Yaser Hamdi, but also the citizenship of millions of other Americans born under similar circumstances (including some of the U.S. military personnel who captured Hamdi). Unsurprisingly, the U.S. Supreme Court ignored Eastman's invitation. (Is Birthright Citizenship Good for America? by Margaret Stock, Cato Journal, Vol. 32, No. 1, Winter 2012, p. 144) Stock mentioned another modern case not addressed by King: "in Immigration and Naturalization Service v. Rios-Pineda (1985), the Court stated that a child born on U.S. soil to an unauthorized immigrant parent is a U.S. citizen from birth." (P. 143)

Getting back to Dawn Johnson's analysis of Wong Kim Ark, she concluded in 1997,

"Thus, in determining whether one is ''subject to the jurisdiction'' of the United States for purposes of the 14th amendment, the relevant question is whether that person owes obedience to the United States, not, as some have suggested, whether the person or his or her parents in fact obeyed or violated U.S. law.

"The Supreme Court's exhaustive analysis in Wong Kim Ark makes clear that the only exceptions to the constitutional rule of birthright citizenship are the three common law exceptions and, the ''single additional exception,'' of children of members of Indian tribes. The 14th amendment guarantees U.S. citizenship to all other children born in the United States."

The Controversy: Senator Howard's Ambiguous Grammar.

Against all this weight of centuries of tradition, and consistent Supreme Court precedent from 1898 through the present, come opponents who turn to the statements of one of the authors of the 14th Amendment made during debate. They point out that if an author of the Amendment interpreted it differently than the Supreme Court, we should justly become suspicious of Supreme Court precedent, and look more closely at the Amendment for the possibility of another interpretation.

Those who discuss these things are very selective in what they want to remember of Senator Howard's reasoning. Our whole controversy rests on a single paragraph from the past. Seldom do "Send 'em South" folks quote other Congressmen, or even anything else Howard said.

For example, it was left to Congressman Watt, at the 1997 hearing, to quote Senator Conness, one of Howard's contemporaries. Here is the quote, with Congressman Watt's introduction to it:

"For hundreds of years, our nation has subscribed to the common law precept of jus soli, which recognizes that citizenship is based on the place where a person is born. This rule was accepted as the law for our new democracy and ultimately codified in the Fourteenth Amendment and the Civil Rights Act of 1866. These congressional actions were in response to an anomalous and infamous Supreme Court decision, Dred Scott, which denied citizenship rights to freed slaves.

"In 1866, during Senate debate on the Fourteenth Amendment, one legislator, Senator Conness, proclaimed, ''I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.'"

A little more history came to the 1997 hearing from Dawn Johnsen, Assistant Attorney General for the DOJ:

"The Civil Rights Act of 1866 provides: '[A]ll 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.' During the debates on the 1866 Act, the Chair of the House Judiciary Committee, Representative Wilson, stated that the provision defining citizenship is 'merely declaratory of what the law now is.' He cited, among other authorities, a quotation from William Rawle, whose constitutional law treatise was one of the most widely respected antebellum works: 'Every person born within the United States, its Territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.'"

Still more history from Dawn Johnsen:   The framers intended the amendment to resolve not only the status of African Americans and their descendants, but that of members of other alien groups as well. This is reflected in the exchange between Senators Trumbull and Conness, supporters of the Fourteenth Amendment and the Civil Rights Act of 1866, and Senator Cowan, a strong opponent of both. Senator Cowan expressed his reluctance to amend the Constitution in such a way as would ''tie the hands'' of the Pacific states ''so as to prevent them from [later] dealing with [the Chinese] as in their wisdom they see fit.'' The supporters of the citizenship clause responded by confirming their intent to constitutionalize the U.S. citizenship of children born in the United States to alien parents:

"Senator Cowan.... 'I am really desirous to have a legal definition of 'citizenship of the United States.' What does it mean? ... Is the child of the Chinese immigrant in California a citizen? Is the child of a gypsy born in Pennsylvania a citizen?'

"Senator Conness.... 'The proposition before us ... relates ... to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.'"

Even Howard's single paragraph by no means makes a clear case for reversing the Supreme Court. Here it is; read it, and see if you can find, in it, evidence of whether Howard meant babies born here, of unauthorized immigrants, should receive citizenship:

"[E]very person born within the limits [borders] 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. It 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 great desideratum [something needed and wanted] in the jurisprudence and legislation of this country."

(For the record, here is another Howard quote made much less of: "The word 'jurisdiction,' as here employed, ought to be construed so as to imply full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States.")

Notice, in the first quote, "who are" is confusing grammar. He must have meant to say "This will not...include (baby) persons born here to the families of ambassadors...." The issue before us is whether babies born here are foreigners. What does it explain, to say "all the babies born here are citizens -- not foreigners -- except the babies who are foreigners"?

Howard no doubt means not just babies, but also those adults who were born here but who, when they were babies, were (past tense) members of foreign ambassadors' families. But his grammar doesn't precisely say that, either. He speaks in present tense of those who "are" members of foreign ambassadors' families, who were here in the U.S. when they were born. In other words, this grammar literally says that if someone is born in the U.S. to citizens, but then grows up and marries a foreign ambassador's daughter, he would lose his citizenship! Obviously this is not what Howard meant, so we just need to acknowledge that he was human, that his words are not the Bible, so if he did not absolutely precisely conjugate his verbs, that's OK. We can still go about our lives, and keep our country free. We don't have to make Texas and California go into the slavery business just because Senator Howard accidentally used present tense when he should have used past tense.

The Congressional Record includes word-for-word transcriptions of everything said during debate in Congress, from the time our Constitution was ratified, and even before then. But the punctuation is added by the transcribers, who do not go to the Congressmen afterwards and ask them, "is this where you put the semicolon? And did you say a comma here, or a parenthesis?" Therefore it is perfectly legitimate for me to change the punctuation in the above paragraph in a way that I think would make it clearer to modern readers. I have also replaced "who are" with "to":

"[E]very person born within the limits [borders] 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 to 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.

To make it just a little clearer, here is the same statement with a few extra words trimmed:

"Everyone born here, who is subject to our laws, is a citizen. This doesn't include babies born here to non-citizen families of foreign ambassadors who have immunity from our laws."

Here is how opponents of automatic citizenship for babies of unauthorized immigrants born here apparently read Howard's statement, based on their quotes which follow (italics show what they assume Howard meant):

"Every person born [in] the United States, and loyal to their laws is...a citizen...This loyalty to our laws will not, of course, be felt in the hearts of persons born in the United States who are (1) foreigners (since foreigners still owe allegience to their homelands), or (2) illegal aliens (who obviously aren't loyal to our laws because they break them by coming here; of course I've never heard of illegal aliens because they won't be invented for another 7 years, but I'm just thinking ahead), or (3) who belong to the families of ambassadors (who aren't loyal to our laws but to the nation which sent them) or (4) who belong to the families of foreign ministers...."

Did you notice all the changes?

Change #1: That's right, "Send 'em South" folks think "jurisdiction" means, not the power and right of authority to enforce obedience to its commands, but the loyalty in the hearts of those subject to authority. They think our government should get into the business of judging us for our loyalty to it in our hearts. (I know you don't believe me, so quotes follow.) Does this kind of thinking sound an eensy familiar? Isn't it what we call a "reign of terror"? God alone can accurately weigh the intentions of hearts. Governments can barely judge physical actions. We should not invite governments to play God. They are the human institution most willing to try, and least qualified to succeed.

Redefining "jurisdiction" as "charisma". Our laws don't force anybody to behave, the thinking goes. We obey our laws because our laws have charisma. Just reading them fills us with loyalty and admiration for them. "Jurisdiction" simply means "charisma".

So reasoned, apparently, Congressman Bilbray June 25, 1997, at the hearing of the Subcommittee on Immigration and Claims of the Committee on the Judiciary in the House of Representatives. Here are excerpts from the transcript:

"Mr. BILBRAY. Well, I think the Wong Kim Ark and the Supreme Court ruling really made it clear that it's not just the ground -- that there has to be an allegiance and obedience tied to it. And I think the quote that I'd like to refer to, it says that the locality of a man's birth -- it was saying that the person's birthright, in theory at least, depends not upon the locality of the man's birth, but upon his being born within the jurisdiction and allegiance of the King of England. And it might be, the fact is, it might occasionally happen that a person was born within the domain and without being born under the allegiance."

Observation #1: We can be "born within the jurisdiction" of a government, but not "within the allegience" of the government? What does THAT mean?!!

Observation #2: Do you see how sloppy Bilbray's grammar is? Mine was that sloppy too, and so was Jan Mickelson's, when he allowed me to be a guest on his show March 11. (Well, maybe it wasn't THAT bad.) My point? That neither of us three are God. But Congressman Bilbray seems to think Mr. Howard is God, and not a mere Congressman like himself whose grammar, especially when spoken and transcribed word for word, isn't perfect. Bilbray wants to use every "jot and tittle" of a single paragraph of Howard's lengthy testimony and debate, to overturn a century and a half of Supreme Court consensus. What if Mr. Howard simply said a couple of words different than he meant?

Observation #3: What's the point, anyway? Is anyone alleging the mothers who careen across the border as their contractions begin, still have any allegience to Mexico? If they did, explain their willingness to risk their lives for a dangerous border crossing while 9 months' pregnant? The unauthorized immigrants who still have allegience to Mexico, and thus who will eventually return voluntarily, aren't the ones who concern anybody, anyway!

I hate to take too much time for this but readers who think they see in Howard's words what Bilbray thought he saw, will think I just wasn't listening if I cut poor Mr. Bilbray off before he is finished. So here he goes again:

"Now, that was based -- that was our Supreme Court ruling. Now, what it was based on was the Calvin case, which was 1608, which ruled that Calvin was a citizen because his parents owed allegiance, could be tried for treason. And the way they -- this is how the British said it in 1608 and I wish we were as poetic. It says, 'neither the climate nor the soil, but the loyalty and the obedience that make the subject born.'"

Can you tell the difference between allegience, and the King's belief that he is owed allegience? Calvin's "parents owed allegience, could be tried for treason." That terminology doesn't mean they actually were loyal to the King, beyond what was necessary to avoid torture. But here goes Bilbray again:

"So I think that it's quite clear that when we get into it -- is that, when you get into that, is the cases were based on you must serve loyalty. And I would ask any member here, is there an obligation of loyalty to an illegal alien?

You must "serve loyalty"? " obligation of loyalty to an illegal alien?" Has Bilbray ever read a transcript of his own talking? If he has, was he able to figure out what he meant? Shouldn't that be a clue to him that just because someone is a Congressman, that doesn't mean every single word that comes out of his mouth is exactly what he meant -- not to mention cause for reinterpreting the Constitution? But Bilbray isn't finished:

"I would ask my colleagues who oppose this legislation, what would be your reaction if the Federal Government tried an illegal alien for treason? I think we all agree that illegal aliens bear no responsibility of loyalty. They do not, they could not, and should not be tried for treason. Based on the British common law, as reinforced by the Wong Kim Ark, that [sic] if the parents cannot be tried for treason, then the parents have no obligation; thus, the children have no automatic citizenship right. That is the major determining factor. Let me point out that legal immigrants can be tried for treason, do have [sic] obligation to serve their country while they are temporarily in the country."

Clever reasoning, but a strange point for a Congressman to make who has been quoting Wong Kim Ark, since that case says unauthorized immigrants can be tried for treason! Dawn E. Johnsen, acting assistant Attorney General, office of legal counsel, U.S. Department of Justice, testified later, directly quoting the case:

"'It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides ... [and] owes obedience to the laws of that government and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.' As Wong Kim Ark further explains, the alien's, 'allegiance to the United States is direct and immediate and, although ... continuing only so long as he remains with in our territory, is yet ... strong enough to make a natural subject, for if he has issue [children] here, that issue is a natural-born subject.'"

Nevertheless, one has to agree with Bilbray that something is illogical about trying an unauthorized immigrant for treason. It would be hypocritical for a government which does everything it can to delegitimize unauthorized immigrants even being here, to turn around and prosecute them for not honoring their connection to this land, either. In other words, a government which betrays an immigrant's right to coexist, to breathe our air, would be hypocritical to expect any loyalty in return. But Bilbray has more we should know:

"Mr. BILBRAY. 'Subject to the jurisdiction thereof' has two conditioning clauses. One, the laws must apply; second, loyalty needs to be required. .... you cannot break the nexus between obligation and rights, responsibilities and rights."

How can anyone say unauthorized immigrants have no loyalty to the U.S.? They are just as loyal as our government will allow them! In fact, quite a bit more so! They have little loyalty to any other government! Or, I should say again, those who do, who will return, aren't the concern of anyone anyway.

The Mexican American Legal Defense and Educational Fund (MALDEF) put the issue this way: "Proponents of limiting birthright citizenship illogically and wrongfully suggest that undocumented persons are not 'subject to the jurisdiction' of the United States as that phrase appears in the Fourteenth Amendment. In Wong Kim Ark, the Court determined that the phrase ''subject to the jurisdiction'' was coextensive and synonymous with 'within the jurisdiction' of any state....Unlike diplomats from foreign countries, all immigrants whether here lawfully or not must follow the laws of the jurisdiction where they live. If this were not so, an undocumented immigrant could feel free to speed, steal, or even murder with no legal consequences. At the same time, when accused as criminals, persons who are undocumented are accorded constitutional protections...More recently than the Wong Kim Ark decision, redefining ''jurisdiction'' to preclude conferral of constitutional rights has not survived Supreme Court scrutiny... In Plyler v. Doe, appellants argued that a state affords protection only to persons within its jurisdiction. They argued that persons who have entered the United States illegally are not ''within its jurisdiction,'' even if that person is within a state's boundaries and subject to its laws. The Court held that ''neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase 'within its jurisdiction.' '' Rather, the Court held that jurisdiction, as commonly understood, applies to all those within the boundaries of a State.

Dawn Johnsen, assistant attorney general, described Congressman Bilbray's coup de'etat on reason as a "novel reinterpretation", though she did not name Bilbray but rather a book that develops the same theme (The book: Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (1985):

"Arguing against this great weight of authority, Professors Peter Schuck and Rogers Smith argue for a novel 'reinterpretation' of the citizenship clause to implement the contrary view that birthright citizenship may be modified by a simple act of legislation.(see footnote 15) Briefly, the authors recommend replacing the 'ascriptive' approach to citizenship -- which determines citizenship by an objective circumstance, such as place of birth or citizenship of parents, with a 'consensual' approach -- which makes political membership a product of mutual consent by the polity and the individual. The authors argue that the Fourteenth Amendment may be reinterpreted to allow Congress to deny citizenship to children of illegal aliens by legislation (as opposed to constitutional amendment). As support, the authors attempt to show that the framers of the Fourteenth Amendment intended the reference to 'subject to the jurisdiction' of the United States to replace the existing ascriptive common law principle with one of express mutual consent. Schuck and Smith are proposing a change in the law, not a plausible reinterpretation of the Constitution. Their theory would require repudiation of the language of the Constitution itself, the clear statements of the framers' intent, and the universal understanding of 19th and 20th century courts. Indeed, the authors themselves concede that there is no judicial precedent in support of their theory."


Change #2: Howard is talking about parents, not babies.

"Send 'em South" theorists read into this that Howard is not talking about babies but about their parents in this second sentence, who are born within the "jurisdiction" of the U.S., meaning within U.S. borders and not in homes immune from U.S. laws.

Howard is saying, they explain, that the hearts of parents, not the geographical birthplace of babies, determines whether a baby will be born a citizen. At least I hope they don't mean that it is the allegience for its government in the heart of the baby that will determine whether he will be a citizen!

Howard is saying, they explain, that parents who are "illegal aliens" are not under the "jurisdiction" of the U.S., so their babies born here aren't, either. They apparently think "this" refers to "this jurisdiction". But if that is what Howard meant, his grammar was even sloppier. Because then he should have said "This jurisdiction will not, of course, be over foreigners...."

Of course they don't parse this grammar as thoroughly as I am doing so; a certain amount of guessing is required to imagine how human beings reach opposite interpretations from reading the same thing.

Have I guessed wrong? Parsing, or analyzing grammar, is an attempt to identify the cause of disagreement in the hope of clarifying and resolving it. All we know for sure is that we disagree. As Congressman Lofgren said:

.... I know that the Congressman and I have had an opportunity to discuss this in the past and we simply disagree....Brian and I have had an opportunity to talk about this issue privately, as well as in public -- we have a disagreement over the substance of where we should go....

Change #3: the exceptions grew from two to four! "Foreigners" is no longer another way of saying "aliens", but is a separate category! And it is no longer "foreigners (or, "aliens") who belong to the families of ambassadors [and other] ministers" but "foreigners", "aliens", and "who belong to the families of ambassadors", and "who belong to the families of ministers"!

Could anyone actually divide this description of a single group of people into four distinct groups? Yes. A comment after a PatriotPost article August 26, 2015 by "TonysTake" said "Take note of the requirement in the middle of the quote "and subject to the jurisdiction thereof." Now, what do you suppose that meant? Well we don't have to wonder because the author of that line (know as "the citizenship clause") has explained himself. This was written by Sen. Jacob M. Howard, who clarified its meaning plainly as he introduced it to the United States Senate in 1866: There are FOUR classes of people to whom this clause does not apply. "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."

Foreigners Aliens Families of Ambassadors Families of Foreign Ministers. Got it now? Good."

Just for reference, remember the Court's four exceptions: families of ambassadors, children of invading armies, Indians who are citizens of their own nations, and babies born on foreign ships in our ports.

So was TonysTake the first to expand Senator Howard's single category into four? No. That was also the view of Edward J. Erler, Professor of Political Science, California State university at San Bernardino, in a "prepared statement" to the 1997 hearing:

"Senator Jacob Howard, the author of the citizenship clause in the Fourteenth Amendment, defined who would fall within the 'jurisdiction of the United States'....Clearly, the author of the citizenship clause intended to count 'foreigners,' 'aliens,' and those born to 'ambassadors or foreign ministers' as outside the 'jurisdiction of the United States.' ...That statement by the author of the citizenship clause, I think, is indisputable and I think that it is clear." ....Senator Howard knew, as his reference to natural law indicates, that the republican basis for citizenship is consent."

Oops, watch out. Here he goes with the theory that "jurisdiction" means "loyalty", where anyone subject to U.S. jurisdiction voluntarily must have "consented" to obey U.S. laws because of his "loyalty" to them. We are so enraptured with the IRS that we are loyal to our tax forms, and that is the only reason we have to pay taxes. If we hated the IRS, then the IRS would have no "jurisdiction" over us. The professor continues:

"This is the natural law principle of the Declaration of Independence that proclaims that legitimate governments derive 'their just powers from the consent of the governed.'"

Wow! Those are such grand phrases
that it almost makes Mr. Erler sound rational!
But be careful. Our police receive their legitimate authority
from the consent of the majority of those governed,
not upon the consent of each and every criminal
who violates the laws established by the majority!

You need to see a larger chunk of Professor Erler's reasoning. He wrote an article, "Immigration and Citizenship", which Jan Mickelson sent me after having me as a guest on his show.

Erler begins with the incredible premise that no individual can be governed without his consent! "Consent of the governed" and "no taxation without representation" were popular phrases describing why the colonists wanted to break away from King George and create political freedom. But until Mr. Erler's debut on the stage of reason, it has been accepted that the "consent of the governed" does not have to be unanimous, but only a majority is needed to enact a law which then is binding upon all. "Social compact" is another phrase describing "the consent of the governed", but it only means the majority of the population occupying a given parcel of land have agreed to the laws which will be binding upon not only themselves but also upon the unwilling, presumably criminal minority.

From Erler's remarkable assumption, he proceeds to deduce that the consent of "the whole people", which apparently means to him the unanimous consent of every American, is required before any immigrant may be legitimately accepted as a citizen!

To this paste he stirs in the principle that "there can be no contract that binds someone who has not been party to the contract". This principle is common sense, so long as we define "contract" in the usual way, as "an agreement between two or more people to meet requirements (beyond the laws of the land which are already binding upon them) which are enforceable by law." But Erler thinks a "contract" of government can have no legitimate authority to enforce a single law until every last criminal on the land agrees to obey it!

From there his grand conclusion is only a baby step away: "Any reasonable person would have to agree that 'Within the jurisdiction of the United States' means [only] those who are in the geographical limits of the country legally..."

Now here he is, Erler Uncensored (though appropriately introduced):

"But perhaps just as revealing is the fact that Howard refers both to 'natural law' and 'national law.' As Howard surely knew, citizenship based on natural law meant that no person could be governed--or become a citizen--without his consent. This was the natural law principle of the Declaration of Independence that proclaimed that legitimate governments derive 'their just powers from the consent of the governed.'

"It is certainly true that just government requires the unanimous consent of each and every individual who is to be governed, whether that consent is given explicitly or tacitly. The foundation of community based on the consent of the governed is the social contract. The common understanding of these foundations was expressed in the Massachusetts Bill of Rights (1780):

"'The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights...and whenever these great objects are not obtained, the people have a right to alter the government.... The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them; that every man may, at all times, find his security in them.'

"Thus, the social contract requires reciprocal consent. Not only must the individual consent to be governed, but he must also be accepted by the community as a whole. If all persons born within the geographical limits of the United States are to be counted citizens--even those whose parents are in the United States illegally--then this would be tantamount to the conferral of citizenship without the consent of 'the whole people.'

"Natural Law and Citizens. But if the natural law requirements of citizenship mean anything, it must surely mean that consent must be reciprocal--allegiance on the part of those who seek to become citizens and the consent of the nation. Any contract requires at least two parties; there can be no contract that binds someone who has not been party to the contract. Any reasonable person would have to agree that 'Within the jurisdiction of the United States' means [only] those who are in the geographical limits of the country legally--that is with the permission of the United States. Indeed, on at least one occasion the Supreme Court rightly noted that the jurisdiction requirement of the Fourteenth Amendment embodied 'the principle that no one can become a citizen of a nation without its consent.' The jurisdiction clause of the Fourteenth Amendment, as Howard noted, is the 'national law' confirming or codifying the 'natural law.'"

Mr. Erler's reasoning was partially addressed, at the 1997 hearing, by Acting Assistant Attorney General Dawn E. Johnsen: "In describing the discrete classes of persons excluded by the common law, Senator Howard noted that the citizenship clause would '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.' Id. This statement has erroneously been taken by some to indicate that Senator Howard intended to exclude all children born to 'foreigners' and 'aliens.' See Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents: Joint Hearings on H.R. 705 et al. Before the Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 115, 116 (1995) (prepared statement of Edward J. Erler, Professor of Political Science, California State University). This serious misreading of the transcription of Senator Howard's oral statement is squarely contradicted by the remainder of the debates and the Supreme Court's holding in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Without a doubt, Senator Howard was referring to the traditional common law exception of persons who are both foreigners or aliens and belong to the families of accredited ambassadors or foreign ministers."

If Senator Howard did mean that "aliens" and "foreigners" were two separate categories, how would we be able to tell which category to put any given person in, since the two words mean the same thing? "Alien" is defined in my dictionary as "a foreigner. A foreign-born resident of another country who has not become a naturalized citizen." "Foreigner" is defined as "a person from another country, thought of as an outsider; alien."

Senator Howard is just using the redundancy to underline his meaning, not to imply a second category whose identity we are invited to guess. When the grammar of someone's oral defense of his written statement invites any speculation at all, but the grammar of the written statement does not, we should be content with the plain meaning of the written statement (in this case, the 14th Amendment) without looking in Mr. Howard's debate notes for excuses to change the plain grammar of the Constitution.

Change #4: "aliens" is changed to "illegal aliens". I haven't found any articles which plainly interpret the word "aliens", in Howard's statement, as "illegal aliens". But a lot of persuasion on issues like this is accomplished by putting explosive words near each other, without accepting responsibility for the chemical reactions which naturally result. When "aliens" and "foreigners" are alleged to be separate categories -- even though dictionaries treat the two words as synonyms, and the subject is "illegal aliens", I expect many readers to assume Howard means the two distinct categories of foreigners must be: "foreigners who are here legally" and "illegal aliens".



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