Chief

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 14^th 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 14^th 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 14^th 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 14^th 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 14^th 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?