Category Archives: rights

Birthright Citizenship for Children of Illegally Imported Slaves

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Jason Riley, Upward Mobility columnist for The Wall Street Journal, in his op-ed last Wednesday has hung his hat on the universality of birthright citizenship on the citizenship granted the children of slaves who were illegally imported, and so as persons were present illegally. In support, he cited the 14th Amendment’s All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States clause and noted, correctly IMNSHO, the centrality of that subject to the jurisdiction thereof phrase to the hook for his hat.

Riley’s claim vis-à-vis those illegally imported slaves’ children is this:

Although the US banned the importation of slaves in 1808, an illegal international slave trade continued for decades. ….
According to the legal scholar Gerald Neuman, by the time the 14th Amendment was ratified, there were tens of thousands of black people in the US who had been brought here illegally. Naturally, some of them later bore children. It thus would seem that for authors of the Citizenship Clause, “subject to the jurisdiction thereof” included the children of parents in the country without authorization.

Therein lies the failure of Riley’s argument. The Trump administration’s argument—and one I’ve made in these pages—is that illegal aliens and birth tourism mothers are not subject to our nation’s jurisdiction because, in the first instance, they’ve placed themselves outside our jurisdiction from the beginning by entering our nation illegally—in direct and deliberate contravention of our jurisdiction’s laws—and in the second instance, withholding themselves from our jurisdiction however legally they may have entered because they have no intention of staying or in any way breaking the bonds of their loyalty, citizenship, or still-accepted jurisdiction of their home nation.

Those illegally imported slaves, on the other hand, on their emancipation actively and consciously accepted the jurisdiction of our nation and our nation’s laws. They accepted and sought American citizenship, whether before or after their children were born.

On Birthright Citizenship

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William Galston, in his Wall Street Journal op-ed insists that President Donald Trump’s (R) Executive Order regarding birthright citizenship—which says that children born to illegal aliens or birth-tourism mothers are not ipso facto entitled to American citizenship—is unconstitutional. Galston correctly hangs his argument on the 14th Amendment’s first clause phrase subject to the jurisdiction thereof (of the United States). He’s also correct in that some case law could serve as impediments to enforcing Trump’s EO and that some Supreme Court precedential rulings that touch on birthright citizenship also could so serve.

Here’s the importance of that phrase, albeit it’s an importance that Galston and others objecting to the EO completely miss. Illegal aliens have held themselves outside our legal jurisdiction from the very beginning—their illegal entry into our nation in violation of the laws, the jurisdiction, of our nation—and they continue to hold themselves outside our jurisdiction by their continued status as illegal aliens.

A similar case applies to those birth-tourism mothers. They have no intention whatsoever of remaining—legally—and so submitting themselves to our nation’s jurisdiction. They have every intention of remaining citizens, subject to the jurisdiction, of their home nation.

Because these two groups refuse our nation’s jurisdiction, birthright citizenship can never, legitimately, apply to their children for all the accident (deliberate or not) of the geography of their birth.

Here is an instance where the over-sanctification of precedent could be corrected in the specific instance: overturn the wrongly decided case law and correct those past Supreme Court precedents. Recognize via Court ruling the plain, obvious, and rational meaning of the 14th Amendment’s phrase. That’s a requirement the Supreme Court has emplaced a number of times.

Whose Misunderstanding?

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A letter writer in Wednesday’s Wall Street Journal Letters section wondered whether DNI nominee Tulsi Gabbard understand[s] the difference between domestic investigative warrants and surveillance warrants abroad. He went on to opine [emphasis added]

For US citizens within the country, warrants support ongoing investigations, whereas warrants abroad monitor for possible terrorist activity and are justifiable on less than probable cause. Domestically, the goal is to prosecute criminals after they have committed crimes. Abroad, the goal is to stop terrorists before they can act. That is reason enough to permit warrants for American citizens abroad.

It is not Gabbard who misunderstands, it is this letter writer.

Americans do not give up our American rights and protections against American government transgressions just because we are overseas. Americans do not give up those rights and protections under any circumstances.

Pardons and Culpability

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Then-still President Joe Biden (D), if only barely at the time, issued pardons to the rest of his immediate family, to the J6 Congressmen and staffers (more on this in a separate post), overwrought bureaucrats like Anthony Fauci, and to wokesters like General Mark Milley (Army, Ret) just in case they might have committed criminal offenses and be haled into criminal court to answer charges. Among the resulting hues and cries is the angst that this puts those folks beyond retribution. While the last minute and preemptive nature of the pardons has the potential of setting an ugly precedent, they are not at all beyond retribution.

All of those pardoned folks, every single one of them, is still legally open to Federal subpoena to testify before Congress concerning the things they did, are accused of doing, and are reputed to have done. Their pardoned status, which does inure them against Federal criminal charges, actually greatly weakens their ability to resist requirements to testify with the truth, the whole truth, and nothing but the truth on the witness stand. The only criminal consequences they could suffer would stem from that post-pardon testimony, should they choose to lie at that time.

Beyond the inability to resist providing testimony, Presidential pardons extend only to Federal crimes and Federal charges of Federal crimes. They do not provide any protection from State or local criminal charges (which would be their only shield against Federal subpoenas to testify). Especially, Presidential pardons provide no protection against civil suits over those very same behaviors, accused behaviors, and reputed behaviors.

All that’s lacking for any of this to happen is the public’s and Congressmen’s will to bring the suits.

Citizenship and Birth

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President Donald Trump (R) has issued his Executive Order (see below a few posts to see a related one) that seeks to apply an alternative interpretation to the 14th Amendment’s Citizenship Clause that eliminates birthright citizenship. His EO can be read here, and the currently implementing law he references in his EO can be read here. His argument centers on the subject to the jurisdiction thereof phrase in the clause.

This is the first clause of the 14th Amendment:

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.

The order strongly implies, IAW “plain language” that folks are citizens of the nation first and citizens of the State in which they reside second. Further, that citizen of the State aspect follows them from State to State as they declare (and take some steps to demonstrate) their residency in the subsequent State(s). That, in turn, strongly suggests that a person’s State citizenship exists only as derivative of their national citizenship.

The law may give this EO some legs, even though the “subject to jurisdiction” part has been tried before.