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Monday, June 27, 2005

Illegal Citizenship

Why should illegal immigrants’ children born in the United States be considered legal citizens?

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A defensible argument is made that many illegal workers who enter the United States clandestinely do so in part because their children born here will automatically be citizens of the United States and entitled to welfare-state benefits such as free medical care and free schooling.  This, it is argued, will allow their illegal-immigrant parents to be free-loaders on tax-paying American citizens.  The force of that argument is somewhat diluted by the fact that Federal Courts have required State and local governments to provide some benefits directly to illegals that might be available to natural-born citizens only with limiting qualifications.

Nonetheless, there is a real issue concerning automatic citizenship for children of people who knowingly and directly break our laws by entering the United States illegally.  Why, hypothetically, should Osama Bin Ladin’s children be United States citizens, if such were the case, solely by reason of having been born here?

While their children born here are automatically citizens, the illegal-immigrant parents aren’t even eligible for naturalization as United States citizens.  They can’t meet the most basic requirement of having been lawfully admitted to the United States as permanent residents.

My friend Frank Madarasz wrote in his letter to the editor (National Review, July 4, 2005):

“Stop the automatic issuing of citizenship to children who are born here of illegal parents.  This was not the original intent of the citizenship clause of the Fourteenth Amendment, passed in 1866.  According to one of the clause’s authors, citizenship does not 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.”

The first clause of the 14th Amendment, Section 1, states: “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.”

The historical context of the 14th Amendment must be taken into account when interpreting it.  Most strikingly, this amendment was ratified in 1868 and, along with the 13th and 15th Amendments, is one of the three Civil War Reconstruction additions to the Constitution.  These are the only three Amendments in which a large portion of the nation (people in the recently rebellious Confederate states) were not permitted to vote in the ratification process, as former Confederate state voters were not re-enfranchised until passage of the Amnesty Act of 1872.

Obviously, the central, if not the entire, purpose of the 14th Amendment’s citizenship clause was to make former slaves citizens of the United States.  To state the equally obvious, slaves, most of whom had lived all their lives in the United States and were fully subject to applicable State laws, were in a very different category from illegal aliens who deliberately evade United States immigration laws and, in many cases, return from time to time to work and to vote in their native countries.  It is a question of fact, of course, whether their children do likewise.

It must also be noted that the 14th Amendment has been the vehicle, or entry point, for a colossal expansion of Federal powers and for eliminating the originally intended independent spheres of sovereignty reserved to States and local governments by the 9th and 10th Amendments of the Bill of Rights.  It is of no small importance that the 14th Amendment also contains the “due Process” and “equal protection” clauses upon which liberal-socialists have constructed such bizarre extensions of Constitutional “rights” as the socialist redistributive dogma of affirmative action.

Looking at the question cynically, one may also note that liberal-socialists have aggressively pursued ways to enfranchise formerly excluded categories such as convicts and sought to compel immigration authorities to short-cut naturalization citizenship procedures in order to enfranchise several million ineligible voters prior to a Presidential election.  Presumably those newly enfranchised persons would be inclined to vote for liberal-socialist candidates.

None of that, however, has any bearing on Constitutional law as established in 1898 by a decision of the Supreme Court declaring flatly that children born in the United States of other than diplomatically-posted parents are citizens. 

Princeton law professor Edward S. Corwin was a leading New-Deal-era apologist for socialistic collectivization of power at the Federal level and of extending Federal power essentially without limit, via the commerce clause.  His “The Constitution and What it Means Today” (14th edition, 1978) says this of the 14th Amendment’s citizenship clause:

“The opening clause of this section makes national citizenship primary and State citizenship derivative therefrom.  The definition it lays down of citizenship “at birth” is not, however, exhaustive, as was pointed out in connection with Congress’s power to “establish an uniform rule of naturalization.” .... With this narrow exception [children born in the United States of foreign diplomatic personnel stationed in the United States] all persons born in the United States are, by the principle of the Wong Kim Ark case, entitled to claim citizenship of the United States…. As rather improvidently interpreted by the Court in the Wong Kim Ark case, this clause endows with American citizenship even the children of temporary residents in the United States, provided they do not have diplomatic status.”

Incongruously, California’s Governor Arnold Schwarzenegger is not Constitutionally eligible for election to the Presidency of the United States, because the Constitution’s Article II, Section 1, limits the Presidency to natural born citizens of the United States.  But, as Constitutional law now stands, any child born in the United States is eligible for election to the Presidency, even if his parents were illegal immigrants hiding from the law, working only temporarily in this country, and still regarding themselves as citizens of another country.

The facts and arguments in the Wong Kim Ark case bear only limited resemblance to the present-day issue of illegal and undocumented aliens flooding into the United States across its southern and northern borders.

Wong Kim Ark was born in San Francisco and lived and worked there until he was twenty-one years old. His parents were like so many Chinese at the end of the 19th century who had come to California to work on the great construction projects: building railroads; erecting levees for the Sacramento River; and draining its vast swampland to create the now famously fertile Sacramento Valley farmlands.  After some years during which they lived and worked openly in San Francisco, without violating any laws, they returned to China.

When he was twenty-one years old, Wong Kim Ark visited his parents in China, but upon returning to the Port of San Francisco in 1895, was denied entry on the grounds both that he was not a citizen and that the Federal Chinese Exclusion Acts prevented his entering the United States as an immigrant.

The critical legal issue in the case was the meaning of the 14th Amendment’s phrase “subject to the jurisdiction” of the United States.  If the parents remained citizens of a foreign country, could their children born in this country automatically be regarded as subject to the jurisdiction of the United States?  If the parents were temporary workers in California, but considered themselves still lawful subjects of a foreign country, must it be presumed that their children’s political loyalties automatically followed those of their parents and that the children were therefore not subject to the jurisdiction of the United States?

To emphasize that point, at least some illegals in the United States regard themselves as Mexican citizens entitled to treaty protection from the rigors of law applicable to United States citizens.  In their behalf, the Mexican government recently charged the United States with violating international law relating to Mexican subjects in the United States. 

Writing about such illegals, Stuart Taylor Jr. , “National Journal’s” Constitutional law expert noted:

“..... March 31 decision by the 58-year-old World Court—formally known as the International Court of Justice , and not to be confused with the ICC—in a lawsuit by Mexico against the U.S. on behalf of more than 50 Mexicans on death row in various state prisons.

The Vienna Convention on Consular Relations of 1963 requires that foreign nationals be notified, at the time of their arrests, that they are entitled to call and meet with their home country’s consular officials. Consulates can be helpful in finding lawyers, notifying relatives, gathering exculpatory evidence from home, and otherwise. But state and local officials are often unaware of this treaty obligation and fail to give the required notice to many defendants. Mexico urged the World Court to rule that this lack of notice in itself denies fair trials to all such defendants, and that their convictions and sentences must therefore all be overturned.”

In the Wong Kim Ark case, which established the still current Constitutional law, attorneys for the United States government argued:

“Large numbers of Chinese laborers of a distinct race and religion, remaining strangers in the land, residing apart by themselves…and apparently incapable of assimilating with our people, might endanger good order and be injurious to the public interests.”

“As the respondent was born of alien parents, to wit, subjects of the Emperor of China, he was at his birth a subject of China, claimed by that nation as such, and therefore was not born “subject to the jursidiction” of the United States.”

Wong Kim Ark’s attorneys argued:

“He has always subjected himself to the jurisdiction and dominion of the United States, and has been taxed, recognized, and treated as a citizen of the United States.”

“Prejudice of race and pretension of caste were set aside by the Fourteenth Amendment, which ordained in unequivocal and far-reaching terms that ‘all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States.’ The language cannot by construction or interpretation be confined…to persons of the Caucasian race and persons of African descent, to the exclusion of persons of Mongolian descent.”

The Court’s decision in favor of Wong Kim Ark’s citizenship now seems almost unchallengeable. In 1997 and again in 1999, bills were introduced in Congress to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens. Neither bill even gained committee approval. 

Today’s sensitivity to charges of racism appears to doom Congressional approval of a proposed Constitutional amendment that would deny citizenship to children born here to illegal-immigrant parents.  The only possibility is a future liberal Court that might discover, within the penumbras of the shadows of the 14th Amendment, grounds for such an exception.  However, with illegals constituting a rising percentage of the potential vote in states like California and Texas, it’s more likely that the Court will rule that illegals have a Constitutional right to vote in order to restore the Presidency to the liberal-socialists.


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