Tag Archives: immigration

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.

Gaslighting

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In a Wall Street Journal article—and this news outlet is not at all alone in this—centered on ICE arrests of those in our nation illegally who have criminal histories, the newswriter, Michelle Hackman, insists on calling them “immigrants,” even as she acknowledges in her lede that they’re here illegally.

…targeting immigrants in the country illegally with criminal backgrounds, including minor offenses.

And

…the agency [ICE] is still conducting arrests by pursuing immigrants on so-called “target lists” of criminals developed by the agency….

No. These folks are not “immigrants,” nor are they, as they are often referred to, “migrants,” illegal or otherwise. They are illegal aliens. On the matter of criminal history, that includes their crime of entering our nation illegally.

They cannot be immigrants under any circumstance unless and until they enter our nation legally. They ceased to be migrants when they entered Mexico (or Canada) illegally by those nations’ laws. Even those who entered Mexico or Canada legally, and so might be migrants there, ceased to be migrants and became illegal aliens when they entered our nation illegally.

Nor does the gaslighting stop there. Abeer Ayyoub, Jared Malsin, and Anat Peled have a piece centered on the return of Gazans to northern Gaza and the destruction wreaked there by Hamas in its war of extermination against Israel. These newswriters—and they’re not alone on this, either—determinedly refer to Hamas as Palestinian militant group Hamas. Again, no. These thugs are not militants; they are terrorists.

As long as newswriters insist on gaslighting us about these, neither they nor their journalism guild in general, will have any credibility at all on these subjects, and by extension, on any other—they might be gaslighting on those subjects, too.

Aside: by entering our nation illegally, illegal aliens have placed themselves outside the boundaries set by our law. By doing that, they have denied our nation’s jurisdiction over them. That has serious implications regarding birthright citizenship and our 14th Amendment, with its requirement of subject to the jurisdiction thereof [the United States] in order to become citizens.

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.

A Thought

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Ex-President Joe Biden (D) thinks he can enact an Amendment to our Constitution by tweeting it into existence: his announcement that the ERA Amendment is now the law of the land, he says.

With that precedent, President Donald Trump (R), who has some tweeting experience, can tweet out of existence other Amendments, or parts thereof: vis., part of the 14th Amendment.

All persons, born to parents at least one of whom is a citizen of the United States, 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.

That ought to saucer and blow the matter.

Update: Oh, wait….