I offer for your consideration a new scholarly article entitled: Decoding the Fourteenth Amendment’s Citizenship Clause: Unlawful Immigrants, Allegiance, Personal Subjection, and the Law to appear in the Washburn Law Journal (Vol. 51, No. 2, 2012), by Patrick J. Charles1.
This paper includes a detailed treatment of the 1866 Civil Rights Act and how it compares with the 14th Amendment. What is the difference between “subject to the jurisdiction thereof” and “not subject to any foreign power?” Where does the concept of “domicile” fit in? What about United States v. Wong Kim Ark? Material that we see in the “natural born citizenship” debate is put in context through a nuanced look at what the drafters of the central documents said.
Just to be clear, this is not a paper on presidential eligibility; in fact, that subject is not touched; however, to understand the source material for the eligibility debate, it is essential to understand the issue of birthright citizenship in general, and this paper presents that background from a comprehensive historical viewpoint. The thesis of the paper, if anything, is that the Congress could adopt a law that would be Constitutional to exclude from US Citizenship the children of persons in the country illegally. Such legislation has been proposed in Congress, but not adopted.
While the first three-fourths of the paper went smoothly, I am encountering some bumpiness with the last one-quarter. Pages 38-42 seem to depart from objectivity, for example characterizing one opposing view as “idealistic.” The author’s characterization of what Marshall B. Woodworth wrote appears problematic. I read Woodworth’s, Citizenship in the United Sates Under the Fourteenth Amendment and I was not able to justify Charles’ characterization of Woodworth:
Thus, “subject to the jurisdiction thereof” did not mean mere presence in the territorial jurisdiction. It required more according to the tenets of allegiance, domicile, and personal subjection.
Woodworth never talks about domicile or personal subjection, nor interprets allegiance in the way the Charles does.
Woodworth’s paper, by the way, is interesting because it deals with the Wong Kim Ark case and at the time after it was decided by the District Court, but before it was heard by the U. S. Supreme Court. Woodworth notes that the District Court decided Wong based on the precedent of Justice Fields’ 9th Circuit Court decision in In Re Look Tin Sing. Both Charles and Woodworth discuss dicta in the Slaughterhouse Cases that impacts the citizenship of the children of aliens. Woodworth argues that the jus sanguinis principle of international law is a superior rule to the jus soli principle of the common law while at the same time acknowledging that a country can decide which to follow, and that the United States has followed the latter.
I am also troubled by some of the emphasis used by Charles, for example, he highlights this familiar citation from Wong. [In the following, I’m replacing italics with bold-faced type.]
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory…
What is troubling about that emphasis is that in Charles’ paper “residence” is deemed equivalent to “domicile” and both require an intent to remain indefinitely. Those definitions tied by highlighting to the citation in Wong don’t work since the its words “temporary” and “so long as he remains” are inconsistent with the definitions Charles uses. One should also note that by the time this case reached the Supreme Court, was raised, Wong’s “domiciled” parents had returned to China 8 years previous.
While I do not agree with everything I read in Charles’ paper, I still think that the reader may reach a more sophisticated understanding of the issues because of it. Certainly this paper gives one a strong sense of how utterly naïve the birthers writers on the subject are.
Update:
I wrote to Mr. Charles to communicate a couple of typographical errors I found in his text. He replied and said in effect that the text had not yet been reviewed by the publisher. I’ll want to see what changes for the published version.
1Patrick J. Charles is the author of numerous articles on legal history and standards of review…. He received his J.D. from Cleveland-Marshall School of Law, and his B.A. in History and International Affairs from the George Washington University. He is a historian for the United States Air Force 352nd Special Operations Group stationed at Mildenhall, United Kingdom and independent consultant on constitutional matters.
this am, a birther quoted this from a conspiracy theory website: OBAMA’s Sponsors Knew He Was INELIGIBLE
“Obama and his sponsors knew that he was ineligible for the presidency long before he ran, as demonstrated in a paper written by an associate attorney in a prestigious Chicago-based law firm. One of the partners served on then Sen. Barack Obama’s finance committee. In the paper, Sarah P. Herlihy, advocated for the elimination of the U.S. Constitution’s requirement that a president is be a “natural-born” citizen, calling the requirement “stupid” and asserting it discriminates, is outdated, and undemocratic. Hmmm!”
i READ the 26 page paper from 2005 which discusses why NATURALIZED citizens can’t run for president – there is NO MENTION of people like obama with one foreign parent
there are references of people like schwarzenegger, granholm, kissinger and 12.5 million americans who are ineligible
the birthers RELY on people NOT CAPABLE of independent research to FLOAT/PROMOTE their conspiracies and raise money from IGNORANT FOOLS
Absolutely correct. Heck, half the time, Birthers seem to not even read their own Birther trash rag articles…and simply react off of a headline alone. They are very lazy and gullible people who don’t think for themselves. Hence, why they are such easy marks for the grifter cons out there…
Ignorant fools is putting it mildly.
i think back to the recently discovered roger ailes memo to richard nixon – ailes discussed the development of right-wing media –
in his own handwriting, ailes wrote
“Today television news is watched more often than people read newspapers, than people listen to the radio, than people read or gather any other form of communication. The reason: People are lazy. With television you just sit—watch—listen. The THINKING IS DONE FOR YOU.”
it took a long time, but ailes, with fox and right wing talk radio, created an atmosphere to MOLD AND MANIPULATE the NON-ELITE & UNEDUCATED and PROMOTED THE “STUPID” …… stupid and lazy enough to drink the koolaid
So sad but true…
DrC:
Here is another piece that may interest you.
Wong Kim Ark’s Ship Comes to Port – Justice Horace Gray’s miscarriage of justice
By William Buchanan
http://www.thesocialcontract.com/artman2/publish/tsc_22_2/tsc_22_2_buchanan.shtml
I came across it on the Baldwin Pennsylvania newspaper thread thingy.
Squeeky Fromm
Girl Reporter
The Birthers like to quote Bingham, but I don’t think I have seen this blurb mentioned by any of them:
I undertake to say, by the decision of your Federal tribunals, that women—that all the women of this Republic born upon the soil—are citizens of the United States… The Constitution leaves no room for doubt upon this subject. The words ―natural-born citizen of the United States‖ occur in it…Who are the natural-born citizens but those born in the Republic? Those born within the Republic, whether black or white, are citizens by birth—natural born citizens…all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. 68
From page 12 of 48.
Squeeky Fromm
Girl Reporter
The birthers tend to start quoting with the Civil Rights Act of 1866, that blurb precedes it.
I can appreciate the argument that some make that the children of illegal aliens are not (or could be made not) citizens of the United States, an argument based on the “subject to the jurisdiction” phrase. The Supreme Court, in US V. Wong used the word “domiciled” its decision.
The two problems I have in understanding US v. Wong are first that the courts and US policy since Wong consistently find the children of illegal aliens to be citizens of the United States, and second that the definitions I see offered of “domiciled” don’t jive with the reasoning of the Court in Wong.
In other words, Bingham recognized citizenship by birth and natural born citizenship as being the same thing.
Well, something I don’t see in any of these “domicile” type arguments is de facto domicile. The illegals come here and get jobs, rent houses, buy cars, get fake drivers licenses and things like this which to me evidences an intent to live here. Plus, when it comes to breaking laws, think about how many REAL Americans chat on their taxes, speed, and smoke dope. Even the cops are constantly violating the Constitution one way or another.
Plus, maybe it was that Lynch v. Clarke judge who said it was a lot easier to tie down PLACE of birth as opposed to tying down who the real father was and what he was doing when he was here, besides making babies.
Squeeky Fromm
Girl Reporter
I’ve previously stated that I don’t know that the Court in WKA would’ve reached the same conclusion for a child born here of parents who were only temporarily in the country. For the particular issues birthers typically have reference to, it doesn’t matter. Obama, born in the United States of a US citizen mother, is a natural born citizen. Rubio is a natural born citizen. Bobby Jindal is a natural born citizen. All are eligible to be President.
“All are eligible to be President”
in birtherstan, neither santorum nor i is “natrual born”
NOR are apuzzo, corsi and donofrio
we are ALL italian citizens
“…WKA would’ve reached the same conclusion for a child born here of parents who were only temporarily in the country.”
And besides, such a child, even if considered a NBC, would still have to spend 14 years in the country to be eligible anyway. It is increasingly obvious that elections, and not the eligibility requirement, are the main mechanism for weeding out unsatisfactory candidates for the Presidency.
The two-citizen-parent rule, were it in fact the rule, would be an absolute nightmare. The mother is pretty easy to figure out, but the father? Egad… there could be allegations that the husband of the mother wasn’t the real father of the Candidate, leading to calls for DNA testing… and what if the biological father is dead? Or unknown, like Tom Vilsack’s, who is 9th in line to succeed to the Presidency today? And children from a sperm donor, even though raised by loving US parents, would have indeterminate eligibility, as would those adopted in infancy and raised here all their lives…
Yikes. No wonder jus soli has been the chosen criterion.
correct we are entitled to Italian citizenship, all we have to prove is direct Italian ancestry.
One of the definitions in the Charles paper (one lacking an authority) for domicile involves two criteria: announcing your presence and declaring your intent to follow the law. Under that definition illegal immigrants fail to establish domicile. Of course, Charles is trying to open up a pathway to exclude the children of illegals from citizenship, so he might favor such a definition.
italian law
Note that if the Italian parent naturalized as a citizen of another country independently, and prior to reaching legal Italian adulthood (age 21 prior to March 10, 1975, and age 18 otherwise), then often that parent retained Italian citizenship and could still pass citizenship on to children.
Also, a single, qualifying Italian parent (father only before January 1, 1948) is sufficient to pass on citizenship, even if the other Italian parent naturalized or otherwise became unable to pass on citizenship.
Sometimes that qualifying parent is the “foreign” mother, because foreign women who married Italian men prior to April 27, 1983, automatically became Italian citizens and, in many cases, retained that citizenship even if their Italian husbands later naturalized.
Dr. You just flushed Judge Malihi’s interpretation who followed the Ankeny’s decision who followed Wong Kim Ark’s guidance that anyone born here must be automatically a natural born citizen down the stinking toilet.
as an aside,
Farrar v. Obama: Petition For Letters Rogatory Filed
http://www.scribd.com/doc/82197866/2012-2-19-FARRAR-v-OBAMA-APPEAL-FCSC-Petition-for-Letters-Rogatory
and
Fact Check: Obama’s SSN not the same as dead man
Read more at Jacksonville.com: http://jacksonville.com/news/metro/2012-02-18/story/fact-check-obamas-ssn-not-same-dead-man#ixzz1mxdLpGCk
http://jacksonville.com/news/metro/2012-02-18/story/fact-check-obamas-ssn-not-same-dead-man#ixzz1mqmp9IbW
There are many papers on these issues. The fact is that Wong Kim Ark in no way can be read to limit its holding to children of residents or domicled aliens. If the court wanted to limit the holding in such way would have. It is very common for a court to state a general rule and double down that such includes the facts before the Court. Look at the definition of 14th Amendment citizenship:
“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
That is the rule or holding adopted by the Court that includes residents, but is not limited to residents. The fact that he goes on to make clear persons of WKA’s status are included does not change the holding. Such quote clearly states the two classes of persons excluded from the rule, no one else. Basic English really, which sadly few birthers seem to have mastered past the 3rd grade. Why do people like yutube with no understanding of law pretend to be legal experts on the internet? Dishonesty? Hatred? Ignorance? All of the above?
yutube, I think the remaining questions and debate would be in regard to children of aliens here temporarily and illegally. The Court in Wong Kim Ark was clear that WKA was both “natural born” and a citizen.
That being the case, again, Barack Obama, Marco Rubio and Bobby Jindal are all eligible. We have confirmation again and again and again: The claim that two citizen parents PLUS birth on US soil are required to make a natural born citizen simply doesn’t hold water.
I debunked that one ages ago.
http://www.obamaconspiracy.org/2011/06/details-details/
To cite Vice-chancellor Sandford in Lynch v. Clarke:
“I think not.”
By the way, both Woodworth and Charles put emphasis on the Lynch, Charles asserts that Vice-chancellor Sandford went to the English Common Law only after determining that there was no applicable statutes, and from that the possibility of statutes in the future.
And why should your argument that illegal aliens may not be citizens be taken any more seriously than the 2 citizen parent when recent court rulings have indicated in Ankeny, Tisdale, and Georgia, that being born here is all it takes, illegal or legal it doesn’t matter? and should you be excluded from the so called birther alternate reality world because you think that anchor babies is a separate issue? What a bunch of hypocrites.
Wow, you certainly suffer from severe basic reading comprehension problems, don’t you.
Doc has NOT argued that “anchor babies” are not NBC. He has only pointed out that this is the only possible slightly “gray area” in terms of “subject ot the jurisdiction” questions for birth on US Soil.
Simply put, “anchor babies” are NBC under our current laws. While both the Doc and I can understand where folks can reasonably *dislike* that reality, neither of us is in denial that they are NBC under our laws.
The only way to change and *restrict* “achor babies” from being NBC would be by creating a Constitutional Amendment to do so.
Reminds me of a quote from a favorite movie.
“This is pitiful. A thousand people freezing their butts off… waiting to worship a RAT. What a hype. Groundhog Day used to mean something in this town. They used to pull the hog out… and EAT IT! You’re HYPOCRITES! All of you!
Nice!
And this one:
“Morons, your bus is leaving.”
I have been waiting for a birther to take up this question, maybe you are the one who will not respond with crickets:
Over the last 20 years or so, there have been various bills and proposed amendments to deal with the supposed issue of “anchor” babies. Everyone of these have always stated in the language “born in the United States of parents, one of which is a citizen” (or a special type of alien). From Ron Paul to Nathan Deal all the way to Vitter and Steve King, they all say “one of which.” (see thomas.loc.gov for various bills).
Can you explain, yutube, or any other birther, why the nativist Congressmen and Senators are only looking to have one parent citizen?
Please explain the reasoning behind one daddy or one mom and not both. By the way, I should warn you that this is “birther” talk.
Because Wong Kim Ark defined natural born citizen in accordance with the Engligh common law. It didn’t directly address the question of illegal aliens, so that issue has not been addressed outside of dicta in Plylor v. Doe, so one can say the question still has not been directly dealt with. However, there is no substantive textual or historical basis to distinguish between legal and illegal aliens on this issue,so it is hard to imagine even the current court could find a distinction.
I know this post is over your head, but perhaps others on the thread might be interested.
Have you not noticed that the birthers closes supporters on the Hill are not willing to go 2 parents but only try one parent? Have you noticed that the “anti-anchor baby” crowd is still fine that only one parent is a citizen? Do you realize they attempts would leave Obama a citizen at birth, and, a Natural Born Citizen?
My question to you was and still is, why are you and the birthers still trying for 2 parents when not even their closest political support does not support 2 parents? Is even the far right blind to the truth that apparently only you and the birthers realize?
I think Northland is asking you to do that and to explain the disconnect between the anti-Obama birthers and their close allies the anti-anchor baby nativists.
You are the one that seems to be making both arguments at the same time, please reconcile them for us.
far right? Harry Reid is far right/, wtf?, go here dude http://www.youtube.com/watch?v=75a9Wa6KL7k
😉 One of my favorite movies too!
Again, your own clip proves the SAME point Doc C and all of us here have been trying to get through your thick head the whole time:
Notice that Harry Reid’s entire speech against “anchor babies” is *because* existing US laws automatically make that “anchor baby” NBC by virtue of birth.
***DUH***
Again – and I’ll try to type slow, since you seem so mentally handicapped on grasping this simple concept:
1. Our existing laws clearly make birth on US soil NBC automatically. That is the *entire* reason that the “anchor baby” has been an issue for several decades.
2. There is a fair number of folks (regardless of party) who’ve made a reasoned argument that breaking US immigration law should be cause to make an exception to restrict those “anchor babies” from receiving that automatic citizenship. That is the debate you hear Mr. Reid attempting to make in this particular clip. Many others have brought up the argument from that perspective, both before and since, as well.
3. Bottom line – In order to CHANGE existing US law to *restrict* NBC status from “anchor babies”, a Constitutional Amendment to do so would have to be proposed and passed, according to all the high bar standards required for Constitutional Amendments.
4. Without such a Constitutional Amendment being passed to restrict citizenship in this particular case (or to restrict it in any other permutation for that matter), existing US Law stands. Period. End of Sentence. No way around it. Sorry…
5. It is one thing to simply have an OPINION that you disagree with existing law and that you advocate and make a reasoned argument for it to be changed and explain why. No one has a problem with that. That is what our structure and our democracy is all about.
6. However, it is completely a different and absolutely FICTIONAL matter to behave as if the law isn’t what it is. You may not *LIKE* our existing laws and how they work; but you are being absolutely foolish and childish to pretend that they don’t exist and function as they clearly do.
Why are you apologizing to this person?
It is not an apology. in that context, it is a form of expression that translates as “you are wrong”.
In other words, it is similar to when a Southerner says “Bless his heart”. HINT: Such an utterance is NOT a “blessing” and is simply a polite, regional way of calling someone a fool.
William Buchanan sounds like he’s wound up a bit too tight. He really haz a mad on Justice Gray.