Reader Suki sent me the following email.
Check out this link, http://thinkprogress.org/justice/2013/01/05/1402821/rep-steve-king-opens-new-congress-with-unconstitutional-bill-to-end-birthright-citizenship/.
“It’s the first week of the 113th Congress, and one House member is already trying to stop children born in the United States to undocumented parents — whom he calls “anchor babies” — from gaining citizenship.”
King’s bill is clearly racist, but what a different perspective I have on this issue now. If I could have prevented my son (born in Tampa) from becoming a US citizen, I would have…
The article suggests that only the children of diplomats are currently excluded under the provision of the 14th amendment, “subject to the jurisdiction”. This is in my opinion a nonsensical manner in which to interpret the 14th amendment. The children of those who are working or studying with temporary visas and who later return to their country of origin, the children of illegal immigrants who grow up in their parents’ country of citizenship, and of course, border babies, should be excluded from citizenship, not to discriminate against them, but to protect them from the overreach of United States citizenship taxation. We should not see this bill as racist at all but as an attempt to limit the attempt to of the United States Federal government to interpret too broadly who is a citizen.
The 14th amendment clearly states that somebody born in the U.S. is a citizen plain and simple. Therefore this proposed bill would be completely contrary to the 14th amendment and would be unconstitutional on its face. Hence, we have one more example of a Congressman thinking he/she is not subject to the constitution (or doesn’t know what it says).
This is separate from the issue of whether the mere fact that somebody is born in the U.S. should, as a matter of policy, make one a citizen. The problem is that the U.S. government has used the “citizenship” issue to attack people in various ways over the years:
A. During the 70s (prior to a series of Supreme Court decisions clarifying the law of citizenship) the U.S. tried to “strip people of their citizenship” for various acts (including becoming a citizen of another country;
B. Now the U.S. is trying to use the fact of being born in the U.S. to force them to pay taxes for life.
Not only should the issue of “citizenship-based taxation” be explored, but the issue of “what makes one a citizen” needs to be explored.
All of this is a big big problem.
The 14th Amendment does not say, as you suggest, that everyone who is born in the US is a citizen. It provides two clauses. Natural birth AND “subject to the jurisdiction thereof”. It is the interpretation of this second condition that I call into question. Take the example of the “border baby”. The parents whose citizenship was Canadian/Grand Caymen/Mexican etc. were visitors, albeit legal, to take advantage of a US hospital where no such hospital was available in their own country. Do you really think that the writers of that amendment had such people in mind when they wrote the 14th Amendment? Of course not. Absolutely NOT. They had slaves, of African descent, who were born in the USA and had lived there all their lives. This is why the “subject to the jurisdiction thereof”–it means that the parents were long-term residents (legal or not) and their children born here and were not immediately taken back to their original country of citizenship.
The problem with the interpretation of the “subject to the jurisdiction” to include everyone except diplomats is that the policy is absolutely INSANE and it does not take into account the original intent of the 14th Amendment.
Now if you offered the f-ing citizenship freely to people born in the US, that would be one thing. But the USA is forcing border babies to be US citizens and applying their tax laws to them. Jus soli is therefore not a right but a liability. This abrogates the intention of the 14th amendment, because rather than giving slaves the right of citizenship, it makes slaves out of anyone born in the United States.
There are a lot of Canadians and other nationalities that are forced to deal with this overreach of the United States only because of a broad interpretation of the clause, “subject to the jurisdiction”. A common sense approach to this clause would resolve all kinds of issues for them. But in this sense you are right: no one in the US courts will ever accept what I am saying as correct. But the rules have changed. The earlier interpretations of the 14th amendment were much closer to what I’m saying than the current case law.
“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.”
Very insightful comment. The courts have interpreted the 14th amendment to mean that the “fact of being born in the US” is sufficient to trigger citizenship.
I strongly suggest that you/I and others research this issue. You are correct that the original intent was to give slaves citizenship and thus to guarantee a benefit.
1. does “subject to the jurisdiction” then mean that once a U.S. citizen leaves the country that he/she is no longer a citizen?
2. Is the U.S. interpreting the 14th amendment to mean that the very fact of birth in the U.S. would make somebody subject to the jurisdiction? This particular interpretation would effectively make slaves out of every person born in the U.S. So, as you point out, the 14th amendment rather than freeing the slaves would be to create slaves.
This is an argument that needs to be developed!
If I understand Chile’s system correctly, they seem to have it pretty close to correct: a child born in the country to “transient foreigners” has the right to apply for Chilean citizenship with his birth certificate and a fee of about US$30, but is under no obligation to do so.
In broader terms, involuntary attribution of nationality is an act of aggression, whether we’re talking about children born on the territory or children born abroad to emigrant parents. Which is why I find it so ironic how the US handled the issue of overseas-born kids who didn’t qualify for citizenship under the laws back in the 1970s when ACA was first protesting about the issue: instead of the US government giving their kids the option of having their US citizenship being attributed to them, they made it involuntary and automatic.
@Petros, Other countries have the same rule as the US. Everyone born in Canada, except children of foreign diplomats, is a Canadian citizen. Same thing for Brazil. Mexico doesn’t even have an exception for foreign diplomats, everyone born in Mexico is a Mexican citizen, period.
The term “subject to the jurisdiction” means that the person is subject to the laws of the country. The only people who are physically located in a country but not subject to its laws are foreigners with diplomatic immunity.
No surprise that they are trying this again. Would be interesting to see if it passes muster and if they make it retroactive. Courts these days seem willing to read the law according to the direction of the political and cultural wind – depending on which is blowing the hardest.
It makes no sense to force citizenship on accidental “Americans” but instead provide the option for those to apply later as adults if they chose.
To limit maternity tourism, a constitutional amendment was passed in Ireland in 2004 through a referendum which removed the “constitutional right” to Irish citizenship by being born in Ireland. The right to Irish citizenship is now governed by laws passed by the parliament rather than the constituion.
@ShadowRaider, Yet the US is the only country that treats such as it deems non-resident citizens as slaves with regard to taxation. This is not a right but a blemish on thousands of Canadians. Your understanding of the phrase “subject to the jurisdiction” is not the original intention of the phrase–even if that is how the courts interpret it. It meant originally that the parents would subject to the jurisdiction when the child is born, meaning that they were citizens or permanent residents of the United States. It was meant to exclude births of transitory residents of the United States (such though not limited to children born to diplomats) and Indians.
The problem today is that the US uses this to impose citizenship on the children of transitory residents of the United States(such as people who were born to people on temporary work visas and student visas) and people born in border hospitals. This is a direct violation of these people’s citizenship rights and threat to the sovereignty of their true nation of citizenship. The court cases heretofore have tested whether the United States could deny citizenship to those born in the United States. They have not, to my knowledge, tested whether the United States may impose citizenship on people whose only ties to the country was their place of birth. Imposing citizenship on someone who has only a flimsy tie to your country is a violation of their rights under the Universal Declaration of Human Rights. You cannot maintain the right to tax individuals who spent a day or two in a hospital at the time of their birth or perhaps a few months while their parents held a transitory existence in the USA. This imposition of citizenship is absolute tyranny and the application of laws like FATCA and FBAR are instruments of terror.
Switzerland does not grant Swiss citizenship to a person born in Switzerland, unless they have a Swiss parent, naturalize (subject to residence duration and good conduct regulations), or are born in Switzerland and cannot get another nationality because no other country will give them one. http://www.admin.ch/ch/f/rs/141_0/index.html
However, one should note that RS 141 Art 28 does allow a spouse to be naturalized abroad even if they do not live in Switzerland, unlike the US which allows this only if the US Citizen spouse works for a US company and the couple intend to return to the US
@petros as to ““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.” (14th Amendment USCONST).
Should we not consider the legal principle of “parliamentary intent” on the part of Congress that promulgated the proposed amendment, and of the States that ratified it, as being to liberate individuals that were discriminated against in the past? If so, then as you have intimated above, the intent was indeed not to enslave individuals but liberate them. I say again (as with Cook v. Tait) that at that time dual nationality was not recognized and/or tolerated as it is today.
What was the intent of certain countries around the world when they started explicitely allowing or tolerating dual-nationality? Was it to enslave, or to liberate?
Sorry for the hijack – put has anyone posted this yet?
@Jeff, excellent point. What was the intent of the statement, “subject to the jurisdiction thereof” in a period when dual citizenship was not allowed? It cannot be how it is interpreted by the US border guard bullies today, “You are a US citizen until we tell you that you are not”.
In other words, if you were born in US with Canadian citizens as parents who then took you back to Canada and you grew up a Canadian citizen, then the 14th Amendment did not intend to make you a citizen. That is why you must be “subject to the jurisdiction thereof” as well as born in the United States, in order to prevent dual citizenship. Very interesting point.
@petros Dual nationals (or green cards) living as bone fide primary résidents in their other country of citizenship are not subject to the jurisdiction of the United States, at least as to their activities or income outside of the US. We could also argue the same about US persons who are simply bone fide résidents abroad.
Again, what is international law but a collection of customs? Most countries do not practice taxation on worldwide income if the income is earned abroad on the part of a bone fide resident abroad. We cannot allow current US practices to become custom. That the laws have been on the books is not an arguement, they have only recently been enforced with the vehemence that caused all of us to come together here at IBS to fight against.
Block US practice now. It is inconsistent with national and regional freedoms charters and/or constitutions and international agreements such as UDHR.
As we have discussed in other threads, Cook v. Tait is no longer valid because the international and national policy landscapes have changed. Not that I would have really agreed with its premises in the first place, even in the context of 1924, though again we do not know if Cook paid Mexican taxes, or what status he had in Mexico. I suspect that in 1924 gringos could come and go with little control. The current regime of practice as to passports and visas dates back only to the period of WWII.
Badger posted it elsewhere, but it really deserves its own thread.
The ACLU will be on this faster than flies on a pile of Harry Reid.
That said, Justice Scalia calls himself a textualist—looking for the original meaning of the writers. He states that the others Believe in a Living Constitution—that the constitution follows the whims of the latest appointed judges.
Yes it has been posted in several threads, and now prominently here.
The intent of the 14th amendment was to make it totally clear that the ex-slaves were indeed FULL citizens. Very important, especially if you consider that before that time a slave was only considered to be “worth” three fifths of a free man (old recipe for figuring how many Congressmen a state got).
It’s OK by me to have everyone born in the US to have the right to be a US citizen by default. But in the case of children born in the US who later leave, it would make sense to require them to choose which citizenship they want when they reach the age of majority.
Here in Germany, anyone who can prove that a grandparent was a German citizen has the right to be a German too, at least if they want to be. They have to do some paperwork though, they have to WANT to be Germans. After the Communist bloc disintegrated we got a lot of new, “automatic” citizens who couldn’t speak a word of German, but were really good at Russian or Polish. (The “automatic” citizens got the same, very solid financial support that Germans displaced after the war got, so coming to Germany was attractive to many.) They’re slowly being assimilated. Cyrillic graffiti by disaffected and confused ex-Russian teenagers is becoming less common than it was in the late 90’s. Quite a few of the “automatic” Germans that came from Russia are also Jews. New synagogues are being built and you can study Jewish theology in Heidelberg now.
Oh, please…pass this bill and make it retroactive. This way my sons and daughter lose their American citizenship…and the US has no further ties to them. It will also free my autisitic son, who will then not have to suffer the endless ties of US birthright citizenship. But of course that won’t happen. Odumbo…won’t do that because it ultimately dries up his source of income.
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