[johnwk]

See: Judge Nap: Trump's Deportation Vow Is Prohibited By Constitution
8/17/15

”Judge Andrew Napolitano explained this morning on "America's Newsroom" what Trump can and cannot do on immigration. He said that Trump's promise to deport children born in America to illegal immigrant mothers is "prohibited by the Constitution."

"The Constitution says very clearly, whoever is born here - no matter the intent of the parent - is a natural-born citizen. He could not change that. Even if he were to change the Constitution, it would not affect people who had already been born here. It would only affect people not yet born here," said Napolitano.”

Why FoxNews allows this propaganda to go unchallenged is suspect to say the least! Let us look at some historical facts.


We are led to believe that if a foreigner enters our country illegally and gives birth to a child, that child, because of the 14th Amendment, becomes a citizen of the United States upon birth. As we shall see, that is one of the biggest myths alleged concerning the text and legislative intent of the 14th Amendment. Let us look at some documented facts.


In IN RE SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1872) the Court states the following regarding the 14th Amendment:

“That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States“.

And in Elk v. Wilkins (1884) the Court affirms the Court’s opinion in the Slaughter-House cases:

”Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country . . . must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country”


'”This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof .' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance”

So why would the Court indicate the wording in the 14th Amendment which declares “and subject to its jurisdiction” was intended to exclude from citizenship “children of ministers, consuls, and citizens or subjects of foreign States born within the United States“?

The answer is to be found in the Congressional Globe, 39th Congress, which framed and debated the 14th Amendment. For example, in discussing the proposed 14th Amendment, Senator Howard explains the clear intentions of the 14th Amendment as follows:

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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. 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.(my emphasis) see: Congressional Globe, 39th Congress (1866) pg. 2890

Later, and after the question was repeatedly asked as to who is and who is not a citizen of the United States, Mr. TRUMBULL responds as follows SEE: page 2893, Congressional Globe, 39th Congress (1866)
1st column halfway down

“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 “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.”

Mr. Trumbull later emphasizes in crystal clear language that: “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is “subject to the jurisdiction of the United States”


Mr. JOHNSON then rises to say: “…there is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question….there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State.

“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States.” …he then continues “…the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”

And then there is John A. Bingham, chief architect of the 14th Amendments first section who considered the proposed national law on citizenship as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…” Cong. Globe, page 1291(March 9, 1866) middle column half way down.

And so, a baby born to a foreign national mother while on American soil is not subject to the jurisdiction of the United States within the meaning of the 14th Amendment, nor becomes a citizen of the United States upon birth.

So why is FoxNews allowing Judge Napolitano's distortions to go unchallenged?

JWK




The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

[subego]

As far as I can tell, it's because of United States v. Wong Kim Ark.

[johnwk]

Originally Posted by subego 

As far as I can tell, it's because of United States v. Wong Kim Ark.

Wong offers nothing from the 39th congressional debates to establish the 14th Amendment was intended to bestow citizenship upon a child born to a foreigner while on American soil. And quite the contrary is true!

Wong Kim Ark did not address what the framers of the 14th Amendment intended by the phrase “subject to the jurisdiction” However, in Elk v. Wilkins, 112 U.S. 94 (1884) JUSTICE GRAY, who also wrote the opinion in Wong, did address the meaning of “subject to the jurisdiction” He wrote:

”Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country . . . must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country”

”This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, ]not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance”

Now, getting back to the Wong case, let us remember that Justice Gray pointed out the parents of Wong Kim Ark had been here legally, were settled in American for quite some time, they had a permanent domicile and residence in the United States, and they were carrying on a business, and were not employed in any diplomatic or official capacity under the emperor of China at the time of his birth. And after mentioning the above specific facts the Court then stated with regard to Wong Kim Ark’s question of citizenship

”For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

I hope the above clears up the insignificance of Wong Kim Ark as applied to the meaning of the qualifying phrase “and subject to the jurisdiction thereof” as it appears in the 14th Amendment.

JWK

[The Final Dakar]

Do you stop responding to old threads as soon as you start a new one, or is there some special reason I'm continually ignored?

[subego]

Originally Posted by johnwk 

Wong offers nothing from the 39th congressional debates to establish the 14th Amendment was intended to bestow citizenship upon a child born to a foreigner while on American soil. And quite the contrary is true!

Wong Kim Ark did not address what the framers of the 14th Amendment intended by the phrase “subject to the jurisdiction” However, in Elk v. Wilkins, 112 U.S. 94 (1884) JUSTICE GRAY, who also wrote the opinion in Wong, did address the meaning of “subject to the jurisdiction” He wrote:

”Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country . . . must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country”

”This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, ]not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance”

Now, getting back to the Wong case, let us remember that Justice Gray pointed out the parents of Wong Kim Ark had been here legally, were settled in American for quite some time, they had a permanent domicile and residence in the United States, and they were carrying on a business, and were not employed in any diplomatic or official capacity under the emperor of China at the time of his birth. And after mentioning the above specific facts the Court then stated with regard to Wong Kim Ark’s question of citizenship

”For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

I hope the above clears up the insignificance of Wong Kim Ark as applied to the meaning of the qualifying phrase “and subject to the jurisdiction thereof” as it appears in the 14th Amendment.

JWK

It doesn't.

The Wong Kim Ark decision is almost entirely about the meaning of "subject to the jurisdiction thereof". I actually lost count of how many different pieces of precedent and evidence Gray used to demonstrate it means exactly what it's meant since that decision: if you're born here, you're a citizen.

In addition, you've incorrectly attributed both the author of your quote, and the case it was made in regards to.

[subego]

Originally Posted by The Final Dakar 

is there some special reason I'm continually ignored?

This setup is so good, I don't even need to touch it.

[besson3c]

It's frustrating how issues like this are sort of discussed for a cycle, then dropped, while the most important issues of the country just sort of rot and fester in inaction.

[besson3c]

I mean, in comparison to everything else, should we really be that concerned with anchor babies?

[johnwk]

Originally Posted by subego 

It doesn't.

The Wong Kim Ark decision is almost entirely about the meaning of "subject to the jurisdiction thereof". .

The question before the Court was:

"A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution"

Those circumstances are entirely different than citizenship being bestowed upon a child born to an alien who has entered our country illegally and given birth.



It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.___ Chief Justice Marshal


JWK

[johnwk]

Originally Posted by besson3c 

I mean, in comparison to everything else, should we really be that concerned with anchor babies?

Do you have any idea of the devastating social and economic consequences which "anchor babies" inflict upon American Citizens?


JWK

[johnwk]

Originally Posted by subego 

In addition, you've incorrectly attributed both the author of your quote, and the case it was made in regards to.

Huh? Gray wrote both opinions.

[besson3c]

Originally Posted by johnwk 

Do you have any idea of the devastating social and economic consequences which "anchor babies" inflict upon American Citizens?


JWK

Do you have any idea of the devastating effects of the Citizens United case, and money in politics in general?

The taxpayer money that is siphoned off to rich corporations makes the anchor baby issue seem pretty insignificant to me.

[johnwk]

Originally Posted by besson3c 

Do you have any idea of the devastating effects of the Citizens United case, and money in politics in general?

The taxpayer money that is siphoned off to rich corporations makes the anchor baby issue seem pretty insignificant to me.

The subject of this thread are anchor babies.

Let us take a look at the destructive social and economic consequences in just one county in California inflicted upon its citizens in 1995 when this massive invasion of our borders began to accelerate. CLICK HERE and scroll to page 93 for testimony given by JOAN ZINSER before the COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, DECEMBER 13, 1995


Good morning Chairman Smith and other honorable members of the Subcommittee on Immigration and Claims. I am Joan Zinser, Deputy Director of the San Diego County Department of Social Services. I direct the department's Income Maintenance Bureau, which has responsibility for AFDC, Food Stamps and Medicaid eligibility determinations. I am here today to tell you about the effects of illegal immigration on the County's assistance programs, and to present information regarding impacts on other county-funded services.


Impacts on San Diego County

In 1993, illegal aliens in San Diego County were estimated to be 7.9% of the population, or a total of almost 220,000 illegal aliens in a county with a population of slightly over 2 1/2 million. A 1993 Calffornia State Senate report estimated that the State, local governments - primarily the County - and schools incurred $304 million in costs to provide services to illegal aliens. These costs were offset by only $60 million in taxes generated by illegal aliens - leaving a net impact of $244 million.

Welfare Costs.

When a child is a US citizen, AFDC can be granted for the child but not the parent, if the parent is an undocumented immigrant. In 1992 there were 6,414 children born to undocumented immigrant parents in San Diego County hospitals. Each year, the illegal alien parents of nearly 2000 "citizen children" apply for and receive AFDC in San Diego County. The cumulative total of these "citizen child" cases continues to rise each year.

Public assistance is intended to support the citizen child, but is paid to the illegal alien parent and is, no doubt, used by the parent to support the entire family. Costs for providing AFDC to "citizen children" cases in San Diego totaled $37 million in 1993 for approximately 5430 AFDC cases.

Additional costs are incurred in Child Welfare Services. Combining costs for Out-of-Home and Family Maintenance services to families of illegal aliens results in an additional cost of $1.7 million.

Medicaid and Other Health-Related- Costs.

Medicaid services are an increasingly large portion of the costs involved in illegal immigration. In 1992, Medicaid paid for 6,414 births illegal alien mothers. Although studies have shown that illegal aliens use fewer Medicaid services than do the age-equivalent members of the general population, significant costs remain. Delivery costs are greater for babies with mothers lacking adequate prenatal care and many medical conditions are treated more cost-effectively in their early stages. Infectious diseases are also a major concern of the County. San Diego County has historically carried large costs because of illegal aliens with these problems. Costs associated with providing emergency and pregnancy related needs to illegal aliens are paid for under "restricted Medi-Cal benefits." During the 1992 calendar year, an estimated $37 million was paid for "restricted Medi-Cal benefits." Other costs, including uncompensated care in hospitals, community clinics, and other health services elevated the 1993 total costs to over $50 million.

Criminal justice.
A recent 90-day pilot project involved having INS Agents present in the county jails to interview those suspected of being an undocumented immigrant. Approximately 20% of the persons booked into the jails during that pilot were identified as being illegal aliens. With annual bookings of approximatel 105,000 persons a year, it is estimated that up to 21,000 were illegal aliens.

According to the San Diego County District Attorney, 8,521 felony crimes were committed by illegal aliens between 1987 and 1992. Illegal aliens commit an estimated 22% of felony crimes committed in the county. The number of misdemeanors committed during the same period in San Diego County by illegal aliens is estimated to be 17,000. In 1993, approximately 15. 1 % of the costs -accrued in dealing with crimes were spent on illegal aliens. Costs for illegal aliens to the legal system totaled $151 million in the County of San Diego for 1993.

Education.

Recently, a video of students crossing the border and getting on a school bus in San Diego County in order to receive free education was shown nationwide. Locally, we have worked to make sure that this situation does not recur, but education of the children of illegal aliens is also a significant CDSt. It is estimated that $60 million was spent in San Diego County in 1993 for education of illegal aliens.
________

And, more recently see:

Illegal Immigration Costs California Over Ten Billion Annually

Dateline: December, 2004

Among the key finding of the report are that the state's already struggling K-12 education system spends approximately $7.7 billion a year to school the children of illegal aliens who now constitute 15 percent of the student body. Another $1.4 billion of the taxpayers' money goes toward providing health care to illegal aliens and their families, the same amount that is spent incarcerating illegal aliens criminals.


Testimony about "51 Florida Hospitals in trouble" due to illegal aliens expenses:

Jun 10, 2008

”No need to editorialize. Here is a sampling of the sort of facts the politicians and pro-illegal lobby want you to ignore, yet expect you to continue to bear the burden of. Is it any wonder scores of hospitals in border states and elsewhere have shut down or closed their ER units?!!!!!!!!!!!!!!!!!!!!!!!!!!”

Texas Faces Rising Cost For Illegal Immigrant Care

Aug 19, 2010

Texas spent at least $250 million in the past year for medical care and imprisonment of illegal immigrants and other non-citizens.

The Fiscal Cost of Unlawful Immigrants and Amnesty to the U.S. Taxpayer

May 6, 2013

”In 2010, the average unlawful immigrant household received around $24,721 in government benefits and services while paying some $10,334 in taxes. This generated an average annual fiscal deficit (benefits received minus taxes paid) of around $14,387 per household. This cost had to be borne by U.S. taxpayers. Amnesty would provide unlawful households with access to over 80 means-tested welfare programs, Obamacare, Social Security, and Medicare. The fiscal deficit for each household would soar.”


Judicial Watch: 165,900 Criminal Aliens into US Population Through April 2014

Mar 2015

”Nearly 166,000 convicted criminal illegal aliens were released by the Department of Homeland Security (DHS) as of April, 2014. This is the analysis of 76 pages of DHS documents obtained by Judicial Watch via Freedom of Information Act (FOIA) requests. The criminal illegal aliens include rapists, murderers and kidnappers.”

_________

Aside from the social consequences inflicted upon American Citizens, anchor babies are making American Citizens tax slaves to support them.

JWK



To support Jeb Bush or John Kasich is to support a continuance of Obama's illegal immigration tyranny which includes giving legal status and work permits to tens of millions who have invaded our borders!

[subego]

Originally Posted by johnwk 

Huh? Gray wrote both opinions.

Yes, but what you've posted as being from the opinion for Elk v. Wilkins (which was written by Gray) is from the dissent of United States v. Wong Kim Ark (written by Fuller or Harlan. I think Fuller).

[subego]

Originally Posted by johnwk 

The question before the Court was:

The court can render opinions which range beyond the question before the court, and that's what was done in this case. Gray wrote several thousand words in support of the opinion.

There were so many it annoyed me to have to read them all. Imagine the poor schmuck who needed to fountain pen that one out.

[johnwk]

Originally Posted by subego 

Yes, but what you've posted as being from the opinion for Elk v. Wilkins (which was written by Gray) is from the dissent of United States v. Wong Kim Ark (written by Fuller or Harlan. I think Fuller).

Perhaps you should quote my words and then make your comment, so there is no confusion as to what you are talking about, unless you purpose is to cause confusion.

JWK

[johnwk]

Originally Posted by subego 

The court can render opinions which range beyond the question before the court, and that's what was done in this case. Gray wrote several thousand words in support of the opinion.

The question before the Court in Wong was:

"A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution"

Those circumstances are entirely different than citizenship being bestowed upon a child born to an alien who has entered our country illegally and given birth. Wong is not applicable!


"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."___ Chief Justice Marshal, Cohens v. Virginia, 19 U.S. 6 Wheat. 264 264 (1821)


In any event, where is the documentation from the debates of the 39th Congress to support the notion the 14th Amendment was intended to bestowed citizenship upon a child born to an alien on American soil who has entered our country illegally?


JWK



The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

[subego]

Originally Posted by johnwk 

Perhaps you should quote my words and then make your comment, so there is no confusion as to what you are talking about, unless you purpose is to cause confusion.

JWK

I did quote your words and make the comment, but shall patiently do so again as you request.

Originally Posted by johnwk 

Wong Kim Ark did not address what the framers of the 14th Amendment intended by the phrase “subject to the jurisdiction” However, in Elk v. Wilkins, 112 U.S. 94 (1884) JUSTICE GRAY, who also wrote the opinion in Wong, did address the meaning of “subject to the jurisdiction” He wrote:

”Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country . . . must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country”

”This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, ]not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance”

The quote in bold is not by Gray, nor is it from Elk v. Wilkins. It's from the dissent of United States v. Wong Kim Ark, written by Fuller.

[subego]

Originally Posted by johnwk 

In any event, where is the documentation from the debates of the 39th Congress to support the notion the 14th Amendment was intended to bestowed citizenship upon a child born to an alien on American soil who has entered our country illegally?

This is irrelevant, and Gray explicitly mentions just how irrelevant it is in his opinion. However, despite this, he provides text from the debates of the 39th Congress, both with arguments the amendment is meant to include the children of aliens, and objections to the amendment based on the fact that's exactly what it would do.

Gray also notes in your interpretation of the 14th amendment, equal protection doesn't apply to any immigrant, because equal protection is for people within the jurisdiction of the United States.

Gray further notes the purpose of the amendment is inclusion, and therefore does not exclude things not explicitly stated in the amendment.

While we're at it, Gray gives Miller a piece of his mind with regards the lack of integrity displayed in the Slaughter-house opinion.

[johnwk]

Originally Posted by subego 

I did quote your words and make the comment, but shall patiently do so again as you request.



The quote in bold is not by Gray, nor is it from Elk v. Wilkins. It's from the dissent of United States v. Wong Kim Ark, written by Fuller.

You are absolutely correct! My error. The following quote is from Wong Kim Ark dissenting opinion by Justice Fuller:

'This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do [169 U.S. 649, 725] to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the timeo f birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.'
To be 'completely subject' to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.

Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country.

JWK

[johnwk]

Originally Posted by subego 

Originally Posted by johnwk View Post
In any event, where is the documentation from the debates of the 39th Congress to support the notion the 14th Amendment was intended to bestowed citizenship upon a child born to an alien on American soil who has entered our country illegally?

This is irrelevant, and Gray explicitly mentions just how irrelevant it is in his opinion. .

Yes he does allege the debates of the 39th Congress are irrelevant, and that is his fatal error because the most fundamental rule of constitutional construction is to carry out the legislative intent of those who framed and helped to ratify the 14th Amendment.

Keep in mind our Constitution commands us to adhere to the rules of the common law.


In a newspaper article published in the Alexandria Gazette, July 2, 1819, Chief Justice Marshall asserted he could "cite from [the common law] the most complete evidence that the intention is the most sacred rule of interpretation."


It should also be pointed out that the notable Justice Story, in his Commentaries on the Constitution of the United States (1833) wrote: "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties."


And let us not forget that our very own Supreme Court, in Hawaii v. Mankichi, 190 U.S. 197 (1903), confirms the historical validity of enforcing legislative intent as a priority of the Court:


But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law."

This very rule concerning legislative intent is also stated by Jefferson in the following words:

"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

And the noteworthy Chancellor James Kent, in his Commentaries on American Law (1858) confirms the truth of the matter as follows:

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.


You may also find a recent Supreme Court decision quite interesting in which the SCOTUS references the Federalist Papers 18 times in order to discover the intent of our Constitution and enforce it. See:UNITED STATES v. LOPEZ, (1995).

And this is in harmony with what the Court stated in HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)


The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.

Also see the following:


“A constitutional provision is to be construed, as statutes are, to the end that the intent of those drafting and voting for it be realized."(Mack v Heuck (App) 14 Ohio L Abs 237)

"No part of the constitution should be so construed as to defeat its purpose or the intent of the people in adopting it."Pfingst v State (3d Dept) 57 App Div 2d 163 .

"Where language used in a constitution is capable of two constructions, it must be so construed as to carry into effect the purpose of the constitutional convention.” Ratliff v Beal, 74 Miss.247,20 So 865 .

"In construing federal constitutional provisions, the United States Supreme Court has regularly looked for the purpose the framers sought to accomplish.”Everson v Board of Education, 330 US 1, 91 L Ed 711,67 S Ct 504, 168 ALR 1392.

"The primary principle underlying an interpretation of constitutions is that the intent is the vital part and the essence of the law." Rasmussen v Baker, 7 Wyo 117, 50 P 819.

I could provide countless other quotes to establish the fact that enforcing the documented intentions and beliefs under which our Constitution was adopted is one of the courts primary functions, even our very own Congress is aware it is required to be obedient to the intentions and beliefs under which our Constitution was adopted although they ignore it today:

"In construing the Constitution we are compelled to give it such interpretation as will secure the result intended to be accomplished by those who framed it and the people who adopted it...A construction which would give the phrase...a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution."_____ Senate Report No. 21, 42nd Cong. 2d Session 2 (1872), reprinted in Alfred Avins, The Reconstruction Amendments’ Debates 571 (1967)

And let us not forget what is stated in American Jurisprudence:

The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers. Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.

The irrefutable fact is, when the Court defies both the text of our Constitution and its documented legislative intent, and imposes its personal sense of justice, fairness or reasonableness as the rule of law, the Court has then engaged in judicial tyranny.

Now, are we in agreement that the answer to our question is to be found in the debates of the 39th Congress which debated and framed the 14th Amendment?


JWK

[subego]

You ignored the part where even though he states the debates are irrelevant, he gives examples of them anyway.

As I said, he gives examples from the debate where it is argued the amendment is meant to apply to immigrants. He also gives examples of objections to the amendment, because it would apply to immigrants.

The amendment states equal protection under the law only applies to those within U.S. jurisdiction. If immigrants and their children are not subject to U.S. jurisdiction, then immigrants and their children were not meant to receive equal protection. Is that your claim? You have evidence from the debates this was the intent?

Why stop there? You know who else were the children of immigrants... black people. Are you arguing the 14th Amendment wasn't intended to apply to them?

[johnwk]

Originally Posted by subego 

You ignored the part where even though he states the debates are irrelevant, he gives examples of them anyway.

And so have I.

The answer is to be found in the Congressional Globe, 39th Congress, which framed and debated the 14th Amendment. For example, in discussing the proposed 14th Amendment, Senator Howard explains the clear intentions of the 14th Amendment as follows:

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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. 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.(my emphasis) see: Congressional Globe, 39th Congress (1866) pg. 2890

Later, and after the question was repeatedly asked as to who is and who is not a citizen of the United States, Mr. TRUMBULL responds as follows SEE: page 2893, Congressional Globe, 39th Congress (1866)
1st column halfway down

“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 “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.”

Mr. Trumbull later emphasizes in crystal clear language that: “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is “subject to the jurisdiction of the United States”


Mr. JOHNSON then rises to say: “…there is no definition in the Constitution as it now stands as to citizenship. Who is a citizen of the United States is an open question….there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State.

“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States.” …he then continues “…the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”

And then there is John A. Bingham, chief architect of the 14th Amendments first section who considered the proposed national law on citizenship as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…” Cong. Globe, page 1291(March 9, 1866) middle column half way down.

And so, a baby born to a foreign national mother while on American soil is not subject to the jurisdiction of the United States within the meaning of the 14th Amendment, nor becomes a citizen of the United States upon birth.

So why is FoxNews allowing Judge Napolitano's distortions to go unchallenged?



JWK

[OAW]

The OP seems to be contending that "subject to the jurisdiction thereof" indicates an American citizenship requirement on the part of at least one parent of the child born in order for that child to be a citizen. Ok fine. The problem with that argument though is that the 14th Amendment was explicitly intended to confer citizenship on former slaves simply as a matter of their birth and residence in America ... because the overwhelming majority of them did NOT have a parent who was an American citizen by law. So for me to lend this argument any credence whatsoever I'm going to have to hear some sort of rationale for how both of these can be true at the same time.

OAW

[johnwk]

Originally Posted by OAW 

The OP seems to be contending that "subject to the jurisdiction thereof" indicates an American citizenship requirement on the part of at least one parent of the child born in order for that child to be a citizen. Ok fine. The problem with that argument though is that the 14th Amendment was explicitly intended to confer citizenship on former slaves simply as a matter of their birth and residence in America ... because the overwhelming majority of them did NOT have a parent who was an American citizen by law. So for me to lend this argument any credence whatsoever I'm going to have to hear some sort of rationale for how both of these can be true at the same time.

OAW

I suspect if you really wanted to find the rationale you seek you would search the Congressional debates of the 39th Congress. However, the 14th Amendment granted power to Congress to adopt appropriate legislation to enforce the amendment. And under this power it passed The Naturalization Act of 1870 which reads in part: SECTION 7: The naturalization laws are hereby extended to "aliens of African nativity and to persons of African descent."

Hope this has been of help to you.

JWK



To support Jeb Bush or John Kasich is to support a continuance of Obama's illegal immigration tyranny which includes giving legal status and work permits to tens of millions who have invaded our borders!

[OAW]

Originally Posted by johnwk 

I suspect if you really wanted to find the rationale you seek you would search the Congressional debates of the 39th Congress. However, the 14th Amendment granted power to Congress to adopt appropriate legislation to enforce the amendment. And under this power it passed The Naturalization Act of 1870 which reads in part: SECTION 7: The naturalization laws are hereby extended to "aliens of African nativity and to persons of African descent."

Hope this has been of help to you.

JWK

I appreciate the reference. For the sake of discussion I'll concede that the citizenship status of former slaves and African-Americans in general was addressed by federal statute with the via the Naturalization Act of 1870. So now what is your response to this ....

Section 1 of the Fourteenth Amendment to the United States Constitution provides that "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."

In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a person becomes a citizen of the United States at the time of birth, by virtue of the first clause of the 14th Amendment, if that person:

• Is born in the United States
• Has parents that are subjects of a foreign power, but not in any diplomatic or official capacity of that foreign power
• Has parents that have permanent domicile and residence in the United States
• Has parents that are in the United States for business

The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment,[8] but it has generally been assumed that they are.[9]

United States Nationality Law

Now on the one hand it seems pretty clear that if a child's parents were citizens of another country in a "non-diplomatic or official capacity" who had "permanent residence" in the US at the time of the child's birth in the US then that child would be a citizen as outlined by the SCOTUS. OTOH, I'll grant you that the SCOTUS never explicitly ruled that the legal status of the parents in the highlighted conditions above was a non-factor. Then again ... the SCOTUS never explicitly ruled that it was a factor either. But think about it. The core issue in dispute was the meaning of the clause "subject to the jurisdiction thereof" so it seems highly unlikely that the question of legal status completely slipped the entire court's mind. In fact, that was the entire crux of the matter!

In any event, at the end of the day the Constitution means whatever the SCOTUS says it means. It simply isn't up to random individuals on the internet such as you and I to make those determinations. So the latest ruling by the SCOTUS stands until another SCOTUS ruling either rescinds or clarifies it. And at this stage in the game we have 117 years of legal precedent where the majority opinion in the US vs Wong Kim Ark ruling has been the prevailing legal view ...

United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a United States Supreme Court case in which the Court ruled that practically everyone born in the United States is a U.S. citizen. This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.

Wong Kim Ark, who was born in San Francisco to Chinese parents around 1871, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed essentially everyone born in the U.S.—even the U.S.-born children of foreigners—and could not be limited in its effect by an act of Congress.

The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is subject to the jurisdiction thereof acquires automatic citizenship. The Supreme Court's majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to almost all children born on American soil (a concept known as jus soli). The court's dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority's view, would have excluded "the children of foreigners, happening to be born to them while passing through the country".[1]

In the words of a 2007 legal analysis of events following the Wong Kim Ark decision, "The parameters of the jus soli principle, as stated by the court in Wong Kim Ark, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts."[2]

United States v. Wong Kim Ark

IOW ... you can provide a litany of citations from the debates held by the 39th Congress on this issue. But as a matter of law it's simply irrelevant at this stage in the game. Clearly the "subject to the jurisdiction thereof" clause of the 14th Amendment was open to interpretation. And the SCOTUS adjudicated the issue with the US vs. Wong Kim Ark ruling. Pursuant to its role as a co-equal branch of the federal government. It is what it is.

OAW

[ghporter]

I kinda thought the whole point was the ex post facto rule in article I, section 9 of the Constitution.

Even if all prior decisions regarding this issue were reversed, their effect cannot be retroactively rescinded.

[OAW]

^^^

This is true as well.

OAW

[johnwk]

Bill O’Reilly is full of crap regarding INS v. RIOS-PINEDA, (1985)

On this evening’s show (8/19/2015), Bill O’Reilly falsely suggested that INS v. RIOS-PINEDA, (1985) was to determine if a child born to an illegal alien while on American soil is a legal citizen.

The truth is, the question being decided by the Supreme Court, in the case cited by Mr. O'Reilly was the Attorney General's discretionary power and had nothing to do with deciding whether or not a child born to an illegal alien while on American soil is a citizen upon birth. In other words, the case Bill O’Reilly cited has no bearing what-so-ever with regard to the question of whether or not a child born to an illegal alien while on American soil becomes a legal citizen upon birth.

Keep in mind, "It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."___ Chief Justice Marshal, Cohens v. Virginia, 19 U.S. 6 Wheat. 264 264 (1821)


In any event, Bill O’Reilly, where is the documentation from the debates of the 39th Congress to support the notion the 14th Amendment was intended to bestowed citizenship upon a child born to an alien on American soil who has entered our country illegally?

Put up or shut up Bill

JWK




The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)

[subego]

Originally Posted by johnwk 

And so have I.

The answer is to be found in the Congressional Globe, 39th Congress, which framed and debated the 14th Amendment. For example, in discussing the proposed 14th Amendment, Senator Howard explains the clear intentions of the 14th Amendment as follows:

If you look at the text of the debates, you find, unsurprisingly, they are debates. As in there is no consensus of opinion.

Howard, who wrote the clause, offers his opinion as to its proper interpretation. Note, he uses the word "opinion" in the quote you provided.

In contrast, Senator Conness offers the following opinion,

"I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded in treated as citizens of the United States."

A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875 Third column, near the top.

What mechanism do you propose should be used to determine which opinion will hold sway?

I'll offer as a potential option, nine impartial judges appointed for life by the executive, and then confirmed by the legislature. If you have a better idea, lay it on us.


In regards to your other quotes, Trumbull was talking about Indians, who theoretically had sovereign land within the United States. Perhaps he elucidated his opinion on the citizenship status of children born to aliens on U.S. soil somewhere else, but here it is unclear, as he states only people subject to our laws should be considered for citizenship, and then goes on to declare "there can be no objection to the proposition such people should be citizens."

Indians in sovereign territory were not subject to our laws.

Bingham's quote isn't relevant. He was in the House. The citizenship clause was a Senate debate. Bingham's contribution to the first section was the equal protection clause.

[subego]

Originally Posted by ghporter 

I kinda thought the whole point was the ex post facto rule in article I, section 9 of the Constitution.

Even if all prior decisions regarding this issue were reversed, their effect cannot be retroactively rescinded.

There are actually some interesting questions though. Gray's opinion made copious use of English common law, where you were granted citizenship for geographical reasons because said geography was owned by the King, to whom you now owed a duty for being born on his property. One can argue this concept is antithetical to the American ideal. One can even argue "natural born" was created explicitly in opposition to it.

It's in effect saying, "a child of aliens born on American soil should be an American because a child born to Americans on English soil should be a subject of the King of England". Can't say I like the sound of that.

Edit: but it's not like article I, section 9, and over a century as the law of the land is a tiny hurdle.