Fighting to Preserve Liberty in America
As previously reported here Attorney General Eric Holder and President Barack Obama both claimed ignorance of the Bureau of Alcohol, Tobacco, Firearms, and Explosives programs called Project Gunrunner and Fast and Furious that walked guns across the Mexican border. Some of those guns were found at the scene of a shootout where Border Patrol Agent Brian Terry was killed.
Congressman Eliot Engel writes a letter to the editor of the New York Times titled, “Banning Gun Imports.” He was prompted to write because of an editorial in the Times titled “Hypocrisy, Locked and Loaded,” but I’ll address that one later. Here is how Congressman Engel sees it. There is a tremendous illegal drug business in Mexico. It has gotten so big and contentious and violent that thousands are killed every year. His solution to the problem in Mexico? Ban the importation of guns into the U.S.
We all know by now Tim Bishop’s position on outsourcing. Rather than being a response to conditions of full employment and poor quality work, it can only be described as despicable. One problem with his view is that he voted to bail out GM who turned around and outsourced good manufacturing jobs to their overseas plants increasing production there by 50%, once the bailout was approved. You don’t hear Mr. Bishop talking about that vote very much. He also doesn’t like to talk about his vote on TARP that sent billions of dollars to French and German banks. He only wants to talk about outsourcing. Not the outsourcing that he has done but only about his opponent.
httpvh://www.youtube.com/watch?v=3DB-hJVLVh0&hd=1
Kirsten Gillibrand and Joe DioGuardi battle it out in a televised debate. Here are some of the highlights.
Kirsten Gillibrand was elected to Congress as a relatively conservative Democrat. She received a grade of “A” from the National Rifle Association and she was counted among the Blue Dog Democrats. After Hillary Clinton became Secretary of State, Gillibrand was appointed to Clinton’s vacant senate seat. Since joining the senate she has changed her positions 180 degrees. The National Rifle Association now gives her a grade of “F”. She now votes lockstep with Harry Reid.
Joe DioGuardi is a Certified Public Accountant who has previously served in Congress. His position is focused on the fiscal issues we currently face and his objective is to go to Washington and approach it like an accountant to get their fiscal house in order.
Here are their key positions:
Senator Gillibrand is running from her record as fast as her legs will carry her. Although she does deserve credit for admitting she supported ObamaCare although she would be hard pressed to deny it. She thinks that ObamaCare is just swell, though, and the only thing to continue working on is those big, bad, insurance companies that have the temerity to raise premiums, something that conservatives said would happen from the beginning.
It was the rally we were all waiting for. The left was going to show Glenn Beck a thing or two about how union and community organizers could make things happen. And organize they did; some 300-400 organizations sponsored the rally. While the New York Times said tens of thousands attended the rally they later in the article compared it to the August 28th rally held by Glenn Beck, describing the crowds at Beck’s event as enormous.
Though they hoped to draw an even larger crowd than Mr. Beck, the Times wrote, “Significant areas of the National Mall that had been filled during Mr. Beck’s rally were empty.” Mr. Beck in a broadcast the Thursday prior criticized the rally saying that his supporters paid their own way to attend while for Saturday’s rally the unions and the 300-400 organizations chartered busses to ferry the people to the event, and still they fell short.
The irony was lost on some who attended.
First it was that Bush spent all eight years of his presidency (and was reelected after four of those years) destroying the economy and so we need to give Obama, what, eight years to fix it? Then it was blame Boehner. That didn’t work, because not many people know who John Boehner is. Then it was “the Republicans want to go back to the same old ways that got us into this mess.” Tell that to Arlen Specter, Lisa Murkowski, Mike Castle, Bob Bennett, Charlie Crist, Trey Grayson. Same old, same old? I don’t think so.
Now it is time to go negative. No, I don’t mean campaign ads. That was to be expected as the Democrats do not, repeat, do not want to run on their record, lest it get as ugly on November 2 as a town hall meeting. No, they are going negative on their base. The Democrat heavies are coming out and mocking their base to shame them into coming out and voting for them. Consider some of these gems.
President Obama met with leading Hispanic legislators Robert Menendez, Nydia Velázquez, and Luis Guitierrez. It is believed they were there to discuss language being added to a Pentagon policy bill at the behest of Harry Reid, who is desperately trying to hold on to his seat by energizing the Hispanic vote to come out for him on November 2. The language would provide a path to citizenship to any illegal alien who came to this country before the age of sixteen, stayed here five years, complete high school and either served two years in the military or completed two years of college.
Of the twelve or so million illegal immigrants in this country now, I wonder, how many either meet these qualifications or are very near to doing so? This won’t get them to the voting booth on November 2, but it is meant to appeal to all others who support amnesty. At the same time, if this passes those who benefit from the bill will be reminded constantly that it was those wonderful Democrats who pulled this stunt off and expect to be repaid with their votes in all future elections.
A recent article in the Wall Street Journal, newly elected Republican Congressman from Hawaii Charles Djou called Birthright Citizenship a GOP Achievement. And to think I was happy to hear Mr. Djou was elected in an unusual special election where he ran against two Democrats simultaneously. They split the vote and he won. Birthright Citizenship is not a GOP achievement it is an accomplishment of judicial activism, pure and simple. Mr. Djou says, “The Citizenship Clause of the Constitution’s 14th Amendment provides that a person born in the United States is automatically a citizen, regardless of the race, ethnicity or citizenship of his parents.” Where the hell does it say that?
The Amendment actually reads, “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.” These, so called conservatives, like the first part of the clause but seem to go ignorant or blind at the second part. If you are a Constitutional Originalist, you look to the meaning of the Constitution first in the actual text, then to any information that you can glean from what was discussed at the time of its passing. This is a case where that information could not be any clearer.
Senator Jacob Howard of Ohio was the author of the citizenship clause of the 14th Amendment. He said:
“[E]very person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not [emphasis added] , 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, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are not citizens of the United States. “
How much clearer could “not include aliens” be? Aliens are outside the jurisdiction of the United States and are subject to their home country.
Linda Chavez, who presents as her conservative credentials that she served in the Reagan and Bush administrations, points to English Common Law as the basis of the Birthright Citizenship. Since under Common Law you are immediately and forever a citizen of the place of your birth. However, with the Declaration of Independence we did away with that custom of English Common Law. Under Common Law, you could not renounce your citizenship, and if we are still under that law, we are still all Englishmen. It was also one of the causes of the War of 1812. The British did not recognize our process of Naturalization. They were stopping our merchant ships and taking off sailors they deemed to still be English citizens and pressed them into service in the Royal Navy. The concept that Ms. Chavez is arguing supports Birthright Citizenship is from feudalism, where the serfs belonged to the land. They received the lord’s protection and in return gave their lord a lifetime of service.
At the time of passage of the 14th Amendment, whose purpose was to grant citizenship to the freed slaves, the debate was whether it would also confer citizenship on the American Indians. Under Mr. Djou’s logic and Ms. Chavez’s they were born here, it was automatic. But it wasn’t. Not because of discrimination but because they were members of their tribes which were considered sovereign nations. The United States signed treaties with them. In the Supreme Court case Elk v Wilkins the court ruled:
“Indians, born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian Tribes, an alien though dependent power, although in a geographical sense born in the United States, are no more born in the United States and ‘subject to the jurisdiction thereof’ …than the children of subjects of any foreign government born within the domain of that government, or the children, born within the United States, of ambassadors or other public ministers of foreign Nations.”
That was the law until 1898 in the Supreme Court case United States v Wong Kim Ark, where the majority used the Common Law argument to ignore what was written in the text of the Amendment, what was discussed at the time of the Amendment by the author of the Amendment and its supporters and the prior Supreme Court case. This is judicial activism at its baldest. In the dissenting opinion by Chief Justice Fuller he made it clear:
“when the sovereignty of the Crown was thrown off and independent government established, every rule of the common law and every statute of England obtaining in the colonies, in derogation of the principles on which the new government was founded, was abrogated.”
The American Revolution did away with that definition of Birthright Citizenship under the Common Law.
So along comes Lindsey Graham, who can’t decide if he is for open borders or against them, so his suggestion to amend the Constitution to end Birthright Citizenship sounds somewhat hollow. It is also irrelevant. Article I, Section 8 of the Constitution clearly grants the Congress the power “To establish an (sic) uniform Rule of Naturalization..” This does not require an amendment, just a simple clarifying law that Birthright Citizenship does not exist in the United States.
The irony is that the 14th Amendment was created to make it more difficult for future Congresses to repeal the Civil Rights Act of 1866, which said pretty much the same thing as the 14th Amendment and it was changed with the stroke of the pen of an activist Supreme Court. Perhaps we need to consider the idea of Mark Levin in that perhaps we need to have a legislative veto of Supreme Court decisions. If the role of the Supreme Court is to interpret laws written by Congress, why not let Congress with a two-thirds vote, explain what the Supreme Court misinterpreted?
“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.” — XIV Amendment of the Constitution of the United States
Well that’s a pretty bold statement. Who am I to say that children of Illegal Aliens are not Citizens upon birth? I say that because of the part of the Fourteenth Amendment that most people choose to ignore. It is a two part statement. The first part concerns being born or naturalized in the United States and the second part states that you must be subject to the jurisdiction thereof. It’s not either or, the requirement is that both conditions must be met.
We have in the news talk about Lindsey Graham introducing a new Constitutional Amendment to bar children of illegal aliens becoming citizens upon birth. I don’t think that step is necessary.
Let’s look at the history. The infamous Dred Scott decision said that no black of African descent could be a citizen of the United States, even if they were freed blacks. After the Civil War Congress passed the Civil Rights Act of 1866 which stated:
“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.”
Prior to the passage of this law, citizenship was conferred on individuals by the states and U.S. citizenship flowed from that. This law reversed the process. Why? Because some southern states could have prevented blacks from becoming U.S. citizens by blocking state citizenship. By turning it around, they were U.S. citizens first and then citizens of the states in which they lived. Similar language was included in the Fourteenth Amendment to prevent subsequent Congresses from repealing the 1866 Act. In the Fourteenth Amendment, the language regarding Indians was dropped. There were some concerns raised that this would automatically confer citizenship upon Indians, who also had allegiance to their tribes. Senator Jacob Howard who was the author of the Citizenship clause said this:
“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 Trumbell, who was Chairman of the Senate Judiciary Committee agreed, “subject to the jurisdiction thereof {meant} not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians were not subject to the jurisdiction of the United States because they owed allegiance, even if only partly, to their tribes.
So if an illegal immigrant comes to the United States and has a child, is that child automatically a United States citizen? Does this action comply with the Fourteenth Amendment? To the first part yes, they are born here; but to the second part, no. The mother is a citizen of her home country and is thus subject to the jurisdiction of that country, not the United States. Secondly, she is here illegally so she is exempting herself from rather than subjecting herself to, our immigration laws. As for the child, a newborn can hardly swear allegiance to any country, so in all cases it fails the second part of the Citizenship Clause. Consider diplomats who may be assigned to the United States. If the French Ambassodor’s wife has a baby while posted here, is her child not French?
Let’s take another look at the history. In Elk v Wilkins (1884), the Supreme Court held that a “native Indian who had renounced allegiance to his tribe did not become ‘subject to the jurisdiction’ of the United States by virtue of the renunciation.” It went on to state, “The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States.” So that would mean an illegal alien could not come to the United States and declare in the delivery room, “I renounce my allegiance to [fill in country here],” and then her child would be a citizen. “Neither the ‘Indian Tribes’ nor ‘individual members of those tribes,’ no more than ‘other foreigners’ can ‘become citizens of their own will.” In other words there has to be a treaty or other legislation that allows the renunciation. Congress began extending citizenship to various Indian tribes beginning in 1870.
In a later Supreme Court decision United States v Wong Kim Ark “conferred birthright citizenship to legal residents of the United States.” It appears that the language of the majority opinion is broad enough to allow interpretation that this also extends to children of illegal aliens, but it should only take a Supreme Court challenge or legislation to clarify the meaning of the Citizenship Clause to do what the authors of that clause originally intended. There is no need for the arduous process of a Constitutional Amendment. With the will of the American people as strong as it is for regaining control of the immigration situation, this could be done with a new Congress in January.
Reference: The Heritage Guide to the Constitution, Regnery (Washington, 2005)
