Fighting to Preserve Liberty in America
Photo by Luke M. Schierholz
In a recent interview on Piers Morgan Tonight, Academy Award winning actor Morgan Freeman, once again, laid down the charge that has no proof, that the Tea Party is racist. I like Morgan Freeman. I think he is a great actor. But with this display, I also think that he needs to get out of the Hollywood bubble that includes such deep thinkers as Michael Moore and Janeane Garofolo, and actually visit a Tea Party gathering, (they are very safe places to go to). Here is his thinking. The Tea Party is opposed to Barack Obama, therefore the Tea Party is racist. Game. Set. Match. Gee, that was easy. Does Morgan Freeman know who Herman Cain is? How does he explain that one?
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)
a “wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.” — Thomas Jefferson, First Inaugural Address
“It’s not that I want to punish your success. I want to make sure that everybody who is behind you, that they’ve got a chance for success, too. My attitude is that if the economy’s good for folks from the bottom up, it’s gonna be good for everybody. I think when you spread the wealth around, it’s good for everybody.” — Barack Obama speaking to Joe “The Plumber” Wurtzelbacher and explaining the virtue of taxing successful businessmen and women more.
“We want to take money and put it back in the pocket of middle-class people.” “It’s time to be patriotic … time to jump in, time to be part of the deal, time to help get America out of the rut.” — Joe Biden in an interview during the presidential campaign [emphasis added].
Now, tell me, which of the three quotations above move you? Which of them speaks to you of the greatness of America?
Thomas Jefferson
Thomas Jefferson, author of the Declaration of Independence speaks eloquently about freedom. While recognizing the need for government he believed that that which governs least governs best. Government’s main purpose is to “restrain men from injuring one another.” So we need some basic laws for to protect freedoms of the minority while recognizing the right of the majority to govern. For that we have the Bill of Rights. We need some basic laws to be able to create and enforce contracts. We need national defense to protect us from enemies foreign and domestic. Some pretty basic things. Other than that which is spelled out in the Constitution, stand back and let each man and woman live in freedom to pursue their own happiness.
Barack Obama
Obey
Contrast that to Barack Obama’s conversation with Joe Wurzelberger. Joe asked him why, as he works 10 to 12 hour days with no guarantee of success or income to build his business and create jobs, candidate Obama, should he become president, would want to take more from Joe in taxes. Obama says, it’s not that he wants to punish Joe, but he needs to take the fruit of Joe’s labor and give it to someone else so that they can be successful too. He doesn’t ask Joe for the secret of his success. He doesn’t ask him how he can keep going for 10 to 12 hours per day. He basically says, this is going to be a new America and you keep working, Joe, but remember part of what you make, I take, and I give it to whom I decide needs it more than you do, because we won.
Joe Biden
Joe “Buck a Day” Biden, doesn’t even try to spin what they plan on doing. He basically gets in your face and says he is going to take money from those who are successful and put it in the pocket of the middle class and then tries to shame the audience by saying it would be un-patriotic to object. This comes from a millionaire who gives about $1 per day to charity from his own pocket. He doesn’t define who the middle class is, that is for the political class and his cronies to decide, most likely based on where the most votes are to keep them in power.
The Decline of America
When you consider the heights of principle from which this country was founded, with ideals enshrined in the Declaration of Independence and the Constitution, to the depths we have sunk today, with little more than bag men going around shaking down legitimate businesses and citizens to pay for a massive expansion of government and control over our lives, with the smug, pompous politicians in Washington directing the smallest detail of our lives. It is truly sad.
Lady Liberty weeps.
Our once proud automobile industry
The government institutes regulations such as CAFE that force the automobile companies to build many cars they can’t sell at a profit for each car they can. The unions negotiate contracts that pay people who have been let go 90% of their salary and give retirees extremely generous packages. The automobile companies stagger under this load to the brink of bankruptcy and what happens? The CEO of GM gets booted out and the government and the unions end up owning the car companies. In the case of Chrysler the UAW will end up owning 55% of the company if the government’s plan is approved.
Had the automobile companies gone into bankruptcy before the bailout, as this author advocated, the union contracts could have been voided and a new workable deal struck. But the government said bankruptcy was bad. The government said we had to give the car companies billions of our tax dollars. The government said, if you automobiles companies don’t accept our deal, you will be forced into bankruptcy. Huh?
So tell us again, Mr. Obama, how this is not socialism.
