Category Archives: Economics | History | Public Policy

Do You Need to End Birthright Citizenship to Solve the Problem of Anchor Babies?

14th Amendment

Having a hard time getting attention to this question:

  • Does the 14th Amendment REALLY grant birthright citizenship to children of ILLEGAL immigrants?

You see, being born in the territory of the United States is not the only requirement the 14th Amendment gives for what we call birthright citizenship.

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. [Amendment 14, Section 1]

‘…subject to the jurisdiction thereof…’

Being a legal layman, I tend toward literalism.

Personally, I read that clause and immediately think “This pertains to people giving birth who identify their allegiance with the United States.”

In other words, not Ambassadors (or their staff). Not tourists. Certainly not an invading army.

Assuming I’m right…

What about people sneaking into the country illegally and giving birth while visiting?

To me, as a layman, I’ve got to wonder why so many people are trained in constitutional law are failing to distinguish between birthright citizenship and the problem of anchor babies.

I’m assuming it’s because, by their training and experience, they know more than I on the subject.

If so, I really with they’d let me in on it.

Especially…

…since at least one knowledgeable commenter (The Heritage Guide to the Constitution) seems to agree:

Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer prevent any black from United States citizenship or from state citizenship either.

The Civil Rights Act of 1866 had previously asserted that “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The immediate impetus for the Fourteenth Amendment was to constitutionalize and validate the Civil Rights Act because some had questioned whether the Thirteenth Amendment was a sufficient basis for its constitutionality. A constitutional amendment would also have the advantage of preventing a later unfriendly Congress from repealing it.

One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase “Indians not taxed.” Senator Jacob Howard of Ohio, the author of the Citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the United States. And “jurisdiction” did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”

I just had a conservative attorney say this in response to my question: “Yes, I know and understand the wrong arguments. They are wrong.”

But he didn’t tell me how they are wrong, or how such an argument has fared in the Courts.

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Rick Wilson Attacks the Trump Immigration ‘Plan’

The Donald has a plan.

Rick Wilson doesn’t like it:

Four questions to ask when you want the federal government to do something

When you think you’ve spotted a problem that you think the federal government needs to solve…

Say… more gun control.

Comprehensive immigration reform.

(Comprehensive anything reform.)

Compulsory national service.

Universal government-paid daycare.

You need to stop and ask yourself some questions:

If you’re Congress and you’re thinking of passing a particular piece of legislation, ask yourself these four questions:

  1. Is it constitutional? (If not, stop.)
  2. Is the problem you’re seeking to solve a) a federal issue or b) more effectively solved by the states? (If “b,” stop and defer to the states.)
  3. Is it necessary? (If not, stop.)
  4. Will it work (will it actually solve the problem you’re claiming you want to solve)? (If not, stop until you have something that will work.)

You know where this would lead, don’t you?

Gridlock.

One of the greatest and least appreciated gifts from the Founders.

‘Modernizing’ the Vote—Why Would We Want to?

Fournier FTN 060215

Ron Fournier was on Face the Nation this morning (the first episode with John Dickerson as host).

The topic was Hillary Clinton and her allegations that Republicans are trying to limit people’s voting rights.

Here is Fournier on his current pet peeve, that we need to modernize voting:

Fournier’s focus (they’re talking about Hillary) is on Clinton’s ability to achieve this modernization.

Overlooked in his thoughts, though:

  1. These kinds of voting laws are almost entirely State issues, not federal—so how is Hillary, or any other president, going to make modernization happen to Fournier’s satisfaction?
  2. What is the actual benefit of enlarging voter participation by making voting easier?

Couple thoughts on that second point:

  1. Yes, if your entire objective is to enlarge voter participation, making it easier to vote will help achieve that end.
  2. No, if your objective includes enlarging voter engagement—not so much.

Why?

Engaged citizens tend to vote.

They know what’s going on, what the issues are (or what they think the issues are).

They keep up with political personalities.

They stay read up.

They follow the candidates and controversies.

They are ready when it comes time to vote.

And the few rules they must follow in order to vote are no hindrance to them.

The disengaged?

They disenfranchise themselves.

So…

Engaged citizens vote.

Disengaged citizens don’t.

Why would we want it otherwise?

Why would we want the votes of engaged citizens diluted by those of the disengaged?

We might if we thought we could manipulate the disengaged more effectively than we can the engaged.

Otherwise—

Why would we do this?

You want more people voting?

Get more people engaged.

Teach them to fend for themselves and for each other, to study, to question, to listen, to evaluate, to continually learn.

THAT is engagement.

Once they’re engaged, they will vote.

And I bet their votes would be wiser for the effort.

What is the pragmatic answer to Salena Zito’s idealist’s challenge?

Salena Zito's snapshot of kids in DC

So much is broken

After a century of increasingly uncontrolled progressivism, nothing is working as it should.

Progressives, of course, prescribe more cowbell.

Conservatives who’ve gone native in Washington—those politicians who only love welfare if big corporations are the recipients—want to slow the growth of government, but not reverse it.

I want to go back.

Not to an America of slavery and then Jim Crow.

But back to the Founders vision as seen through Lincoln’s ideals.

To the America that de Tocqueville saw and wrote about.

I think it would look good in modern clothes.

But how do we get there?

Salena Zito has been writing lately about a new wave of populism (and faux populism) coming to life in our politics now.

In her Sunday column (Where America, big government collide) she describes an America heading back home, looking to solutions more stateward-focused (and I assume, local) than we’ve seen in a long time.

And she contrasts that movement with Washington as it has come to be.

A subtle but constant collision occurs in the nation’s capital every day.

It is something that people who work here wouldn’t necessarily notice because of their jobs, or that first-time visitors might overlook as they take in the architecture and history.

On one side you have the sheer weight and power of the federal bureaucracy that so irks and burdens Americans.

A bureaucracy of over 2,000 “overlapping, under-performing, over-regulating, inefficient agencies.” So huge and so removed from the oversight of the people they supposedly serve that none of us can fathom their reach and activities.

Which leads to the other side of the coin — the hopefulness, curiosity, respect and awe prompted by a visit to Capitol Hill, despite all of the mess that is Washington.

I don’t want to excerpt any more of the thought Salena develops here (I urge you to read them yourself in context). It’s a picture of the idealism of America as it was designed to be at cross purposes with “those who wield the power and cause the ineffectiveness.”

The country seems headed in two directions, at different levels.
At the national level, where Republicans once held a marginal advantage in presidential politics, Democrats now seem to have gained momentum. At the state and local level, however, the trend has reversed, with the GOP turning the tables on Democrats.

This is a trend I support.

My question

How do we protect this stateward trend, and nurture it?

We can’t do it by focusing everything on states and local government while allowing Washington to continue its progressive experiment, because Washington will surely strike back.

Honestly?

A lot of what’s wrong locally—schools, over-militarized police, abuse of eminent domain (and more, you name it)—begins with the powers that be in Washington.

There’s a lot of swamp to drain in DC.

My focus these days is on identifying and electing a new generation of political leaders who will get about draining it.

Photo by Salen Zito. Used with permission.