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Why U.S. v. Wong Kim Ark Can Never Be Considered Settled Birthright Law

There is a misconception floating around that suggests the ruling in U.S. v. Wong Kim Ark is the definite guiding rule of interpretation over the fourteenth amendment’s citizenship clause. Worst, some even go as far to suggest Wong Kim Ark is settled law. Nothing could be further from the truth.

http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the United States. And “jurisdiction” did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “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.”

http://www.heritage.org/Research/GovernmentReform/wm925.cfm

The UnConstitutionality of Citizenship by Birth to Non-Americans

By P.A. Madison
Former Research Fellow in Constitutional Studies
February 1, 2005

We well know how the courts and laws have spoken on the subject of children born to non-citizens (illegal aliens) within the jurisdiction of the United States by declaring them to be American citizens. But what does the constitution of the United States say about the issue of giving American citizenship to anyone born within its borders? As we explore the constitutions citizenship clause, as found in the Fourteenth Amendment, we can find no constitutional authority to grant such citizenship to persons born to non-American citizens within the limits of the United States of America.

http://www.theamericanresistance.com/issues/anchor_babies_unconstitutionality.html

Our fourteenth amendment has been horribly perverted and abused.

The SCOTUS ruled incorrectly in the Wong Van Ark case and the finding for the minority has left the ruling as unsettled law for one hundred years.

The fourteenth urgently needs to be clarified by the SCOTUS and would more than likely be put in reserve, shown to be untenable or settled as not inclusive of children born the people who have no right to be here and have no allegiance or loyalty to America.

Speakup on November 1, 2007 at 5:47 PM

I’m afraid I don’t see the original source of the comments, just more unsourced comments. Anyway I have to go to work, I’ll probably be back later if I don’t forget about this.

What is the original source for Sen. Trumbull and Sen. Howard’s quotes in that article?

On the second post at the bottom are some great links, this is one, P.A. Madison is a Constitutional scholar and is a great starting point.

http://www.14thamendment.us/articles/anchor_babies_unconstitutionality.html

Children born to illegal aliens are not citizens.

I’m at work right now, when I get home as soon as I can I will post some more links.

Sorry about the four posts, but I’m not a dude. You still haven’t made a convincing case that people here illegally are under our jurisdiction.

Yes I have. Jurisdiction gives you the right to enforce the law. Just because a lot of the idiots that run the US run a blind eye to it doesn’t change that.

Diplomats are not, so just the fact that they are physically here doesn’t mean they are under our jurisdiction.

Yes they are. They get special privileges and immunities, both of which require jurisdiction. Without jurisdiction they would be meaningless.

They should be removed. And if they are not here legally and are not under our laws than why would they be entitled to give birth to US citizens when they themselves are not here legally?

Rose on November 1, 2007 at 5:34 PM

1. People don’t ask for permission before giving birth.
2. It’s not relevant. People born under US jurisdiction have citizenship granted to them by the constitution. Period. Even if the above poster’s article is correct and the framers didn’t intend it, they used the word “jurisdiction” when they should’ve been more specific. Blame them if you don’t like it.

“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. 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 in the jurisprudence and legislation of this country.”

“[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word…”

http://www.14thamendment.us/birthright_citizenship/original_intent.html

For a great analysis read the full article.

Speakup on November 1, 2007 at 5:19 PM

What is the original source for Sen. Trumbull and Sen. Howard’s quotes in that article? I tried to find it but google gives me a limited number of blogs that simply quote it without any source.

What “Subject to the Jurisdiction Thereof” Really Means

The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ’subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

http://federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction.html

For a great analysis read the full article.

But illegal aliens are doing whatever they want, they are getting away with it.

Rose on November 1, 2007 at 4:52 PM

Even if this was true, it has no bearing on the issue (whether the children of illegals born in the US are American Citizens).

If an American citizen is caught driving without a license they have to appear in court and pay a fine. Illegals do not. If an American citizen uses someone else’s social security number they are prosecuted, illegals are not. They have been given special rights.

Rose on November 1, 2007 at 4:53 PM

Again, even if true, not relevant to the issue. And are these special rights inscribed in law somewhere, or is it just a lack of willingness to enforce the law? Because the latter isn’t a legislative or constitutional problem.

It still appears that the jurisdiction statement refers to the person born not the territory, otherwise it would be a redundant statement. Of course the United States would be subject to the jurisdiction of the United States but it appears that the person may not be.

Rose on November 1, 2007 at 4:57 PM

It’s not redundant. It is possible for someone to be born in America yet not be under the jurisdiction of the United States (an American who moves to Britain, for example). That portion is meant to ensure that anyone either born or naturalized to the US AND is under US jurisdiction is ensured citizenship. This doesn’t mean citizenship can’t be expanded, but it does mean you can’t strip citizenship away from anybody who meets those two conditions.

Sorry, I should have formed my thoughts more completely, but even regarding murder, if the murderer is illegal he only has to flee to Mexico who will not send him back because of the death penalty so he even gets away with murder. So these people appear not to be under our jurisdiction.

Rose on November 1, 2007 at 5:01 PM

Again, not relevant to the topic, but you’re only partially right. If they flee to Mexico yeah, they’re no longer under US jurisdiction (unless the US forcefully hunts them down somehow). However, until they get to Mexico they can still be punished. I should also note that it’s not just illegals who can do this. An American born criminal can kill someone and run to Mexico where US authorities can’t catch him (although I’d imagine Mexico is more likely to extradite such a criminal).

I’m late to the discussion but wouldn’t “subject to the jurisdiction thereof” be the loophole? These parents are not here legally, so they would not be under the US’ jurisdiction.

Rose on November 1, 2007 at 4:37 PM

Do you know what jurisdiction means? It means the US (or a state) has the power to, among other things, enforce the law in a particular territory. By saying they are not under US jurisdiction you just gave every illegal alien the right to do as they please (including, but not limited to live here, work here, murder, rob, rape, etc.). If they are not under US jurisdiction you can’t legally prosecute them for anything. If they are under US jurisdiction AND born here then they are US citizens and you can’t just kick them out because their parents did something wrong. Either way, illegal aliens’ child born in the US is an American citizen (and I like it that way, the alternative is a lot more dangerous).

From the Dallas News:

At Parkland, birthing babies has become a moneymaking venture.

In 2004, the hospital spent $70.7 million delivering 15,938 babies but ended the year with a $7.9 million surplus in obstetrics.

THEIR surplus. TAXPAYERS loss.

The positive bottom line resulted from a hefty infusion of Medicaid funds, about $34.5 million, to cover the delivery costs for the undocumented women. Dallas County taxpayers also kicked in $31.3 million, or about 40 percent of the total obstetrics costs, and the federal government paid an additional $9.5 million to make up for the hospital’s high percentage of patients on Medicaid, the state-federal insurance program for the poor.

That’s 75.3 MILLION dollars to subsidize anchor babies in ONE hospital in ONE YEAR.

S-CHIP is small potatoes. Why aren’t Congress and Bush talking about this abortion of a policy??

Democrats like Hillary Clinton (and too many Republicans like President Bush) don’t see or don’t care that their emphasis on keeping the borders open to keep labor costs down not only hurts low-income American workers by depressing wages.

Here’s a fun game: name the presidential candidates who are proposing a sane, capitalistic solution to this problem (without espousing racist/nativist views). i.e. someone who supports eliminating the minimum wage, eliminating the welfare state and protecting our borders.

Hint: there’s only one. He’s a doctor who refused to accept Medicare and would instead treat patients pro bono. Yeah, him.

Something to think about when you’re in the voting booth pinching your nose and pulling the lever for the least objectionable pro-war pseudo-Republican.

Ochlan on November 1, 2007 at 1:59 PM

I don’t actually think you’re fascist, I just found your post extremely ironic considering all the Constitution thumping you do around here. While I’m sitting in a corner maybe you’d like to familiarize yourself with the 14th amendment. This part in particular:

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.

Not only is your suggestion unconstitutional but also sets an extremely dangerous precendent: allowing the legislature to decide who is and isn’t an American citizen. Do you really want that around if moonbats take control of both congress and the presidency? Because I sure as hell don’t.

This is why so many hospitals have slammed their doors shut in California. They just can’t keep up with the costs they are supposed to absorb. A local doctor told me she isn’t getting reimbursed for even valid Medicare claims and now she can’t pay rent at her practice.

NTWR on November 1, 2007 at 1:58 PM

Many, many Cal. hospitals have closed, the rest of the nation needs to know what’s coming.

Eighty three in just ten years (unless I miss counted), many more before that.

Closed California Hospitals
1996 to Present as of September 2006

http://www.calhospital.org/public/ER/cat1.asp