August 25, 2015
By: John E. Fiorentino
While the journalistic posers and talking heads in the mainstream media seem content to muse about such things as comments attributed to him at the first Republican debate by Fox's Megyn Kelly – whether or not he had “FAA clearance” to do a fly by at his pep rally in Mobile Alabama – and of course whether or not the term “anchor baby” is politically correct – Donald Trump has unveiled his proposals on Immigration.
While such bombastic “pinheads” as Fox's Bill O'Reilly pound their chests and shout, “everyone born in this country is a citizen PERIOD!” - it appears Donald Trump understands more about the Constitution and the intent of those who framed it than most people do.
Megyn Kelly and others have opined that Mr. Trump wants to “end birthright citizenship.” Sounds horrible, doesn't it? Maybe it sounds that way because it isn't true?
The facts show that Donald Trump's proposals on “anchor babies” don't require ending birthright citizenship because the Constitution contains no provision for granting birthright citizenship to the children of illegal aliens. But wait, you say. Doesn't the 14th Amendment to the Constitution say – that "all persons born or naturalized in the United States… are citizens of the United States?" - Well, no it doesn't. What it does say is this - “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 “
Before we get too heavily into a discussion on Constitutional Law and its interpretation – something that would prove much too unwieldy in a “trade article” such as this – let's lay out a few points to ponder.
In 1868 when the 14th Amendment was ratified, the United States did not limit immigration. Since there were no “illegal immigrants” at the time, the issue of birthright citizenship for these people simply didn't exist. The idea of granting birthright citizenship to the children of illegal immigrants is a misinterpretation of and a relatively recent unforeseen and unintended result of the Amendment.
There are those who believe a Constitutional Amendment would be required to rectify the Constitutional misinterpretation. Congress however, has the power to justly enforce provisions of the Amendment by the act of legislation. The 14th Amendment itself gives Congress this power.
While my own background in the law contains little in the way of Constitutional Law or its interpretation, my research background provides ample evidence that the notion of birthright citizenship for the children of illegal aliens is not supported by the 14th Amendment.
It should be noted here that the Supreme Court, in spite of all the examples of case law that have been bandied about by the talking heads and pseudo-journalists of the media, has never ruled on the specific issue of birthright citizenship for illegals. Cases related to this issue however, give dim support for such a notion.
That pesky little phrase - and subject to the jurisdiction thereof
In Elk v.Wilkins, 112 US 94 (1884) the Supreme Court interpreted the phrase “and subject to the jurisdiction thereof “ as excluding "children of ministers, consuls, and citizens of foreign states born within the United States." According to the Court the claimant in Elk being an American Indian was not “subject to the jurisdiction” of the United States at birth and was thus not a citizen The Court opined that claimant Elk was required to be 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.”
It wasn't until many years later with the passage of the Indian Citizenship Act of 1924 that the exclusion of Native Americans from US citizenship was eliminated.
Is it any wonder then that the Washington Post in a piece on August 23, entitled:” On birthright citizenship, Scott Walker takes yet another stance: Don't change the Constitution” (1) conveniently eliminated the phrase and subject to the jurisdiction thereof from it's article?
So, while the likes of Megyn Kelly, Bill O'Reilly and others blather on about things they apparently don't understand Donald Trump appears to be on sound footing at least in regards to the portion of his Immigration policies dealing with anchor babies.
Borrowing a saying from the ever blustery O'Reilly I'll add the perfunctory PERIOD.
Copyright 2015 – J.E. Fiorentino – All Rights Reserved
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Notes and References
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John E. Fiorentino
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