Guest Editorial
By Russell Pearce, Former President of the Arizona Senate | February 17, 2016
This nation has a suicide pact
To clear the air on the 14th Amendment, Enough Es Enough: This nation has a suicide pact and several of your presidential candidates are promoters of the destruction of this republic
Are they confused, corrupt or don't care? The issue is back and as usual the liberal media has it all wrong and as do some so called conservatives, and even more disturbing is the ignorance by presidential candidates who have not taken the time or are not smart enough to read the 14th Amendment and understand it even though it is in plain English. Nor have they taken the time to read the debate that took place in 1886.
They want to be the leader of this great nation and yet are confused on the Constitution. They have no clue about the 14th Amendment (http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html)? This is a critical Constitutional issue. This abuse of the 14dth Amendment is the suicide of this Republic. The 14th Amendment had a very specific purpose; it was not to reward law breakers and create an incentive to break into our country and have jackpot babies. It was to fix a terrible abuse of the slaves after a terrible Supreme Court Decision called the Dred Scott decision.
Want to know where your member of Congress stands on the conservative spectrum? Ask where they stand on the 14th Amendment Citizenship Clause and Birth Right Citizenship.
We have allowed this perversion of a very critical issue that is very costly and destructive and one of the most stupid abuses of the Constitution, a clear lack of common sense. The 14th Amendment was to right a wrong in dealing with slaves and their children. It is the legacy belonging to a moral Republican Congress and that of the African Americans, in righting a wrong.
We must restore common sense and sanity to this nation, such as demanding we enforce our current laws by eliminating illegal sanctuary policies, secure our border, eliminate any and all rewards for breaking the law and apply the 14th Amendment as intended. Stop Birth Right Citizenship NOW. Stop the UnConstitutional order by this corrupt President with his blanket illegal amnesty of groups of illegals.
* No Amnesty
* No jobs
* No Free taxpayer stuff
* Secure the border now
* Enforce our laws
* Stop UnConstitutional Declaration of Citizenship to those born to non-citizens
* Overturn the Plyer vs Doe an illegal opinion from the most far reaching liberal Supreme Court in history
The Citizenship Clause of the Fourteenth Amendment states that U.S. citizens are "all persons born or naturalized in the United States and SUBJECT TO THE JURISDICTION THEREOF." Federal law uses almost identical language. "Subject to the jurisdiction thereof."
"Subject to the jurisdiction thereof" is an essential part of the definition. They meant what they said and history confirms the importance of and necessity of those five words. American Indians, despite their GPS birth location, did not receive U.S. Citizenship until it was conferred by congressional acts in 1887, 1901 and 1924, long after ratification of the Fourteenth Amendment.
To adopt such a stupid approach to citizenship is amazing. A very liberal activist court overturned two previous court decisions: the 1873 Slaughterhouse Cases and Elk v. Wilkins (1884). In those cases, the Supreme Court made it clear that the original intent of the 14th Amendment was primarily to grant equal rights to freed black slaves and that the phrase "subject to the jurisdiction thereof" required that the petitioner for citizenship be "completely subject to their political jurisdiction, and owing them direct and immediate allegiance." These cases excluded children born to foreign diplomats and Native American Indians and were quite clear that the meaning of the 14th Amendment would not include all children of immigrants. Let alone "illegal aliens" most of whom would have been covered by less political jurisdiction than even those born on Indian reservations, which were partially under U.S. jurisdiction.
If one is in a country illegally they cannot have a legal domicile in that country. Domicile refers to a "legal" residence.
For nearly two centuries, the Supreme Court faithfully made it clear and citizenship consistent with the Constitution and the intent of our Founders.
In 1884, in Elk v. Wilkins https://supreme.justia.com/cases/federal/us/112/94/case.html , the Court held that even though Indians were born in the geographical boundaries of the United States they were not Citizens of the U.S.
In 1942, a federal court in the District of Columbia re-confirmed the conditions of citizenship: "Of course, the mere physical fact of birth in the country does not make these children citizens of the United States ... This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship ... from the very first settlement of the Colonies."
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." The language is clear, the debate was clear.
The drafters of this amendment clearly had no intention to mandate birthright citizenship for immigrants. Focus on text, in this case the text fits in exactly with the intent of the drafters, as demonstrated by the Senate floor debate.
Mr. HOWARD: I now move to take up House joint resolution No. 127.
(H.R. No. 127) proposing an amendment to the Constitution of the United States.
"I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body ... it is simply declaratory ... This will not, of course, include persons born in the United States who are foreigners, aliens, ..."
Senator Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them."
Sen. Howard concurs with Sen. Trumbull's construction: In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now.
"Naturalization Oath of Allegiance to the United States of America. It reads in part: I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen..."
It is clear:
The Constitution of the United States is clear and the 14th Amendment did not change how we recognize citizens, it was a clarifying Amendment to protect African Americans and give them the recognition they deserve. It does not grant citizenship at birth to just anyone who happens to be born within American jurisdiction. A child's birth parents determines the child's citizenship--not geographical location.
The Center for Immigration Studies http://www.cis.org/births%20by%20immigrants is an independent research institute which examines the impact of immigration on the United States.
* births to immigrants at all-time high nearly 1/4 of new mothers are foreign-born * 383,000 or 42 percent, of births to immigrants are to illegal alien mothers.
* The issue of births to illegals also shows that a "temporary" worker program would inevitably result in the permanent addition of hundreds of thousands.
* In 2002, births to Hispanic immigrants accounted for 59 percent of all births to immigrant mothers.
* The states with the most dramatic increase in births to immigrants in the last decade are Georgia, North Carolina, Nevada, Nebraska, Arkansas, Arizona,
We the People have been ignored on this issue. As Daniel Horowitz has stated so well: "The reason the birthright discussion is so important is because it sheds so much light on the transmogrification of the judicial system as it relates to popular sovereignty and the social contract. Not only do we have judges like Brennan bestowing citizenship and education rights on illegal immigrants from the high perches of the bench, they have invalidated almost every attempt by the states and federal government to keep out illegal immigrants. A California judge recently invalidated detention for all illegal immigrants with children, essentially mandating their irrevocable disappearance into the American population.
Immigration transformation pursued outside of the democratic process is even worse than having courts decide societal issues, such as abortion and gay marriage.
In addition to the courts, we have unelected bureaucrats and the U.N. transforming entire communities through refugee resettlements without the consent of the people. And although our current immigration system was formed by the Hart-Cellar Act ("Kennedy bill") in 1965, the supporters of the bill lied to the American people and publicly ruled out the transformational outcome that indeed took place. For decades, illegal aliens have been counted in the census and have now permanently distorted the very representation the civil society needs to fight on behalf of their sovereignty.
* We'd be adopting the revolutionary-era feudal system of English Common law rooted in the fact that men are subjects of the state by virtue of being born on the soil. This is antithetical to the consent-based notion of citizenship expressed by our Founders. Although many of our laws are built upon common law, this certainly was not one of them, and this segregation-era court was incorporating it into American law, ironically, at a time when England was abandoning feudalism. As Thomas Jefferson wrote precisely in a discussion on immigration in Notes on the State of Virginia [Query 8, 211], our Constitution is a composition of the "freest principles of the English constitution."
* By adopting jus soli as a constitutional mandate (not just policy) for automatic citizenship based on soil, and not jus sanguinis - right of blood - all children born to American citizens abroad would not automatically be citizens, as noted by then-Chief Justice Fuller in his dissent in Wong Kim Ark.
Fuller further noted in his masterful dissent that by mandating automatic citizenship for all children of immigrants - no matter the circumstances - the Fourteenth Amendment would have the power "to cut off the legislative power from dealing with the subject." Article 1 Section 8 of the Constitution grants Congress plenary power over naturalizations. Fuller observes that, "the right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent
* their entrance into the country." Unless there would be no other way to read the plain language of the 14th Amendment other than a mandate granting territorial jurisdiction instead of political jurisdiction (before 1898 nobody read it this way), it is simply imprudent to interpret it in the most stringent way - having the effect of almost completely voiding out an enumerated power of the people's representatives governing the most vital aspect of a society.
Accepting the notion of automatic birthright citizenship for legal immigrants as a constitutional mandate is hard enough to swallow. Yet, the conservative pundits in the political class want to extrapolate this terrible decision to children of illegal immigrants. As if it wasn't enough to accept the activist 1898 court case from the segregationist justices, proponents of anchor citizenship for illegal immigrants rely on footnote 10 in William Brennan's Plylor v. Doe (1982) opinion - a decision that absurdly forced taxpayers to fund K-12 education for illegal immigrants.
In that footnote, which is nothing more than dicta (non-binding comments not relevant to the case), Brennan quotes "one early commentator" noting that "given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.
There you have it. Until the end of time, American citizens - through their elected representatives - have no recourse to prevent future illegal immigrants from obtaining citizenship against the will of the people - because of the non-binding footnote of the most radical justice of the 20th Century, which in itself, relied on a decision reversing precedent and the English feudal system.
In reality, there is a huge difference between the legal permanent resident who was the subject of the 1898 court case and the illegal immigrants of today, even if we were to fully accept the concept of birthright citizenship based on nothing more than geographical jurisdiction. The justices in Wong awarded the child citizenship because his Chinese immigrant parents were "domiciled" in America (legally, before the ban on Chinese immigration). As Prof. Eastman notes, "Domicile" is a legal term of art; it means "a person's legal home," according to Black's law dictionary, and is often used synonymously with "citizenship. Undoubtedly, those here in contravention to our laws, unlike Wong Kim Ark's parents, cannot unilaterally declare domicile in our country.
Russell Pearce, former President of the AZ Senate, Chief Deputy of Maricopa County Sheriff's Office, Judge and leading national advocate of the Constitution as written and the rule of law.
