Fighting to Preserve Liberty in America
In the presidential debate on January, 7, in New Hampshire, ABC’s panel pressed hard to have the candidates say whether they believed states had a right to make contraceptives illegal and whether there was a Constitutional right to privacy. Romney, sidestepped it like a skilled matador, Ron Paul fumbled it.
While we remember those who gave their lives for our freedom this Memorial Day weekend, let us not ignore the efforts of our own government to take away our rights under the Second Amendment.
Department of Agriculture1—elevated to Cabinet level at a time when agricultural employment in this country was 70–80 percent of the population. In 2008, agricultural employment was about 2–3 percent of the population. Why do we still need it? –Liberty’s Lifeline
The haggling over the 2011 fiscal year budget is reaching a climax. Later this week House Budget Chairman Paul Ryan will present his budget plan for FY 2012. It promises to be extraordinary and you can expect fireworks to soon follow.
The Tea Party has some major accomplishments to their credit that will be on display this week. The first is a reading of the Constitution in the House of Representatives to open the 112th Congress, the second is the change to rules that require any bill to state where in the Constitution Congress has the authority to enact that legislation.
The Federal Communications Commission (FCC) made a power grab to control the Internet and there is a raging debate on both sides. Rather than take a position to rollback the FCC action or let it stand, I offer a third alternative. Shutdown the FCC.
Whether you call it an iceberg or a torpedo, ObamaCare just struck something or vice versa and it doesn’t look good. The ship is taking on water and you can hear the orchestra tuning up as they rearrange the deck chairs.
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)
If you have been following the Obama administration closely it’s hard to be surprised by some of the things that they do but… never say never. Yesterday, Michael Posner whose title is, are you ready for this, Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor brought up in discussions with China, the recent law passed in Arizona to control the number of illegals flooding into that state. This is a law that was passed to address this and the previous administration’s miserable failure to control the border.
The Chinese had counterpunched in response to a report on Human Rights issued by the State Department, as required by U.S. law, that was particularly critical of China, North Korea, and Iran and their restrictions on the Internet, other communications means and their treatment of minorities in their respective countries. This is what the Chinese said:
“The United States not only has a terrible domestic human rights record, it is also the main source of many human rights disasters worldwide,” the Chinese report said, according to the official Xinhua news agency.
“Especially a time when the world is suffering serious human rights disasters caused by the global financial crisis sparked by the U.S. sub-prime crisis, the U.S. government has ignored its own grave human rights problems and reveled in accusing other countries.”
So, after being required by law since 1976 to issue an annual report on Human Rights and not wanting to be excoriated by Congress if they made it a puff piece, our socialist leaning administration felt it necessary to walk it back in meetings with the Chinese by bringing up the new law in Arizona, “early and often”.
The Chinese must have been stunned with their good fortune. Here was the Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor, going out of his way to point to a new immigration law passed in Arizona to say America might be encouraging discrimination. Here is the question from a reporter and Secretary Posner’s response:
QUESTION: Did the recently passed Arizona immigration law come up? And, if so, did they bring it up or did you bring it up?
ASSISTANT SECRETARY POSNER: We brought it up early and often. It was mentioned in the first session, and as a troubling trend in our society and an indication that we have to deal with issues of discrimination or potential discrimination, and that these are issues very much being debated in our own society.
The Chinese, who under Mao killed millions of their own citizens, force families to have abortions after their first and only child is born, forcefully relocated peasants to Beijing to build the Olympic facilities and them sent them back to their farms, refuse to let information flow to their citizens over the Internet, completely dominate and subjugate Tibet, and we are criticizing our own behavior to them for passing a law in Arizona?
In testimony before Congress after publicly making remarks that the new Arizona law is discriminatory and may trigger a lawsuit from the federal government Attorney General Eric Holder admitted that he had not read the Arizona law. The Arizona law takes up all of ten pages and the Attorney General has not found the time to read it, but somehow knows the law is discriminatory.
In testimony before Congress Secretary of Homeland Security, Janet Napolitano also admitted that she had not read the bill. The speedy Secretary, who was quick to point out that things were running swell at the Department of Homeland Security after a Muslim extremist in an Army uniform killed thirteen at Fort Hood and that the Times Square bomber was a “lone wolf” before investigators found numerous international ties, wasn’t quick enough to read the ten page law before testifying to Congress.
This is an administration and Congress that can crank out thousands of pages of laws that will change the landscape of liberty in America and then rams them through without reading them and cannot read a ten page law before declaring it discriminatory. It makes you wonder if anyone in this administration knows how to read, which would explain a lot about their ignorance of the Constitution and the Declaration of Independence.
