Arizona Republicans to deny birth certificates to "anchor babies"!

[Fear_Itself]

@Captain_Amazing

What if the license is from a state that doesn’t require proof of legal residency?

You tell me. If I offer my out of state license, what recourse does the cop have?

[magellan01]

A similar bill has also been in Congress: H.R.1868.IH

As you can see here, for example, the intent of the law was to NOT grant citizenship to foreigners here illegally.

Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.

In Steel Co. v. Citizens for a Better Environment (1998) the court said “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather then assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provides the answer, with Trumbull declaring:

The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’” Sen. Jacob Howard agreed:

• concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

What Sen. Howard is saying here is citizenship by birth is established by the sovereign jurisdiction the United States already has over the parents of the child, and that required that they owe allegiance exclusively to the United States - just as is required to become a naturalized citizen. Therefore, while both national and the constitutional amendment made no distinction between who can be a citizen (Indian, Chinese, African, German, etc.) both required an exclusive allegiance to this country and that mean not owing any other other government allegiance.

It does not require a leap of faith to understand what persons, other than citizens themselves, under the Fourteenth Amendment are citizens of the United States by birth: Those aliens who have come with the intent to become U.S. citizens, who had first complied with the laws of naturalization in declaring their intent and renounce all prior allegiances.

Sen. Trumbull further restates the the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens…” Note that Trumbull does not say temporarily within our jurisdiction, but completely within our jurisdiction.

He of course is talking about the laws of naturalization and consent to expatriation by the immigrant in order for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation. Without this full and complete jurisdiction, any foreign government can intervene on behalf of their own citizens while they visit or reside within the United States - just as the United States is known to do on behalf of U.S. citizens within other countries.

On July 18, 1868 Sen. Howard explained expatriation to mean “the emigration of the foreigner from his native land to some other land non animo revertendi; that is, with the intention of changing his domicile and making his permanent home in the country to which he emigrates.” Sen. Howard explained that expatriation could only be complete through law alone, and not through any act of the immigrant acting on his own outside of the law - and certainly not by any act of birth.

Any citizen owes the same quality of allegiance to their nation of origin as does their country’s ambassador or foreign ministers while within the limits of another nation unless they freely decide to renounce their allegiance in accordance to law. In other words, it would be preposterous to consider under the meaning given to “subject to the jurisdiction thereof” that a French subject visiting the United States was not a subject of France, but a complete subject (politically) of the United States while within the limits of the nation without first consenting to expatriation.

The United States has always, as a matter of law, considered new arrivals subjects of the country from which they owed their allegiance. As a matter of law, new arrivals were recognized as bearing the allegiance of the country of their origin, and the only way that could change is through the voluntarily act of expatriation. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:

James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk’s office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.

Those who were not qualified under naturalization laws of the United States to become citizens of the United States would be unable to renounce their prior allegiances and consent to the full jurisdiction of the United States as needed to become a citizen. This is how children born to Indian’s and Asians were prevented from becoming citizens themselves under the language chosen.

What changed after the adoption of the Fourteenth Amendment? Not much really. States adopted laws that excluded either “transient aliens” or those not resident of the State. New York by 1857 had already a code that read, “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls, etc.” This code overturned the court ruling in Lynch v. Clarke (1844) where the court was forced to consider the English common law rule in regards to children born of aliens because New York had no laws on the subject.

After the adoption of the Fourteenth Amendment, California, Montana and South Dakota adopted identical language as New York. States could enact such laws because “transient aliens” could not be considered “subject to the jurisdiction” of the United States. Now, citizens of the United States who were born in any State would be “subject to the jurisdiction” of the United States (Hint: newly freed slaves who were now citizens themselves).

The State of Connecticut adopted a law that read, “All persons born in this State … except aliens, paupers, and fugitives from justice or service, are and shall be deemed to be citizens of this State, owing it allegiance and entitled to receive its protection, until they shall have voluntarily withdrawn from its limits and become incorporated into some other State or sovereignty as members thereof.”

Overwhelming evidence against the interpretation of “subject to the jurisdiction thereof,” or “not subject to any foreign power” as reaffirming the common law doctrine of citizenship by birth to aliens can be found following the adoption of the Fourteenth Amendment. In 1867 George Helm Yeaman, United States Minister to Denmark, in his well received treatise on allegiance and citizenship, which was presented to Secretary of State William H. Seward, said: “But the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.”

In the year 1873 the United States Attorney General ruled the word “jurisdiction” under the Fourteenth Amendment to mean:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)

House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful’ alone to our government.” There is no way in the world anyone can claim “subject to the jurisdiction thereof” affirms the feudal common law doctrine of birth citizenship to aliens because such doctrine by operation creates a “double allegiance” between separate nations.

It probably would not be a stretch to say Congress shared the same sentiments being expressed in the United Kingdom at the time in terms of conflicts arising from “double allegiances” from alien births. The Report of the Royal Commissioners in 1868 on Naturalization and Allegiance recommend the following changes to British law: “Children born within the realm of alien fathers who have been themselves born abroad, shall be deemed aliens. But such children shall become British subjects (1) upon the naturalization of their fathers, or (2) upon their being themselves naturalized either by their fathers during their minority or by themselves at full age.”

If there is one inescapable truth to the text and debates, it is this: When Congress decided to require potential citizens to first be subject to the complete jurisdiction of the United States they by default excluded all citizens of other nations temporarily residing in the U.S. who had no intention of becoming citizens themselves or, disqualified of doing so under naturalization laws. This was no oversight because it was too simple to declare the common law rule of jus soli if indeed that was truly the desired goal by these very competent lawyers (both Howard and Trumbull were lawyers).

Aaron Sargent, a Representative from California during the Naturalization Act of 1870 debates said the Fourteenth Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. No one came forward to dispute this conclusion.

[Fear_Itself]

@magellan01

A similar bill has also been in Congress: H.R.1868.IH

How can you change the Fourteenth Amendment with legislation?

As you can see here, for example, the intent of the law was to NOT grant citizenship to foreigners here illegally.

SCOTUS has already ruled otherwise. This is settled law. If they want to change the Constitution, it will require an amendment and ratification by the states.

That law will never make it out of committee anyway.

[Polycarp]

Magellan is partially right – the intent of the Great 14th was to ensure that the newly freed blacks were treated as American citizens, and it employed some very broad language to do so. Please note that last clause – that broad language, not what might or might not have been in individual Senators’, Congressmen’s, and state legislators’ minds, is what is operative – that, and what modern sensibilities understand that language to mean. With no sarcasm whatosever intended, if Magellan can put together a maority of five originalists who agree with him on the intent, his interpretation will hold. Until then, some compromise between textualists and Living Constitutionalists will decide what that broad language is to be construed to mean.

And the language in this particular question could not be plainer – people born here and subject to the laws are U.S. citizens, and no state has the power or right to decide otherwise. Regardless of what State Sen. Pearse thinks.

Silenus: I think the issue is that no state wants to be encumbered with having to support its share of those 400,000 anchor babies – they’d rather have the parents pay out that kind of money.

[ruadh]

@kaylasdad99

Confusing to me, though is this, from the article: Both sides expect the anchor baby bill to end up before the U.S. Supreme Court before it is enacted. How does that work, exactly? Isn’t SCOTUS historically reluctant to hear cases that are still in the hypothetical?

Maybe they mean “as soon as it’s enacted but before it’s ever enforced”?

[ruadh]

@silenus

Legal question: Since children don’t have the rights of adults, what specifically is keeping us from deporting the parents anyway?

Nothing. They often are deported, with or without their citizen kids. This is another reason the whole “anchor babies” controversy is ridiculous. These children don’t have the ability to sponsor their parents for residency until they’re 21, and the process usually takes a good few years even after that. The idea that you can just have a baby in the US and presto, green card, is patently false.

[Sampiro]

I can understand why some wish to modify the 14th Amendment to stop it from offering citizenship to anchor babies. It was designed specifically to give citizenship to former slaves- BUT it’s my understanding at least that UNTIL IT’S CHANGED choosing to honor it or not honor it is not an option. Since Arizona ratified the Constitution prior to statehood wouldn’t going against the 14th amendment be the same as if they decided everybody must be Christian (or Muslim for that matter) or that chattel slavery is legal again? And do the elected officials simply not understand this or are they pandering?

Has McCain weighed in yet?

Thank God for Arizona and South Carolina filling in to give my own state of Alabama a well earned break from the “Most Dumbass Political Decisions and Statements to Make Front Pages” for a while. Though it’s only a respite- we’ll be back.

[kaylasdad99]

@Sampiro

And do the elected officials simply not understand this or are they pandering?

Is this a trick question?

[magellan01]

I have a question. Here is the 14th:

@Amendment 14 of the U.S. Constitution

1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

How does that differ from this edited version, which omits just six words?

@Hypothetical Edited Amendment 14 of the U.S. Constitution

1. All persons born or naturalized in the United State are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In other words, why did they feel the need to add " and subject to the jurisdiction thereof,"?

[Boyo_Jim]

Diplomats and royalty from other countries who are here on behalf of their nation’s business and have some form of immunity. In many cases they don’t even technically live on American soil since their embassies and residences are considered their own sovereign territory. But they do set foot on American soil on occasion to transact their business.

[Camus]

@Fear_Itself

The example Camus gave was a pedestrian on the street. Drivers are required to show their operator’s license anyway, so the status question is unnecessary. Care to have another swing at the ball that Camus pitched?

My imagination is pretty limited, but just to extrapolate some details - if there were an area that an officer had extensive experience as a place where illegal immigrants congregated looking for day labor, the officer observed several vans picking up other individuals and observed one individual in particular who had been waiting there for some time with the others, and when the officer approached the individual, the individual could only speak Spanish - in that instance I would wager that the officer then would have reasonable suspicion that the individual was in the country illegally and, under SB 1070, could inquire as to the individual’s immigration status.

Just due to its nature, and that many police officers do not likely join local or state-wide law enforcement agencies with a burning passion to be immigration police at the expense of enforcing all other laws, SB 1070 (if it goes into effect) is likely to come into play when an individual has already been stopped for another reason and circumstances arise that give an officer some reasonable suspicion of the individual’s immigration status. The fear and the desire to prevent local and state police agencies from getting bogged down in immigration law at the expense of their other duties are feelings that even the police chiefs of several Arizona law enforcement agencies, including Phoenix PD, have expressed to the Justice Department.

@BoyoJim

In many cases they don’t even technically live on American soil since their embassies and residences are considered their own sovereign territory.

That’s a myth. Embassies and consulates are governed by the Vienna Convention on Diplomatic Relations, but are still considered the territory of the state in which they are located. The embassies and consulates are afforded certain privileges and protections, like the diplomats and staff themselves, but no territory changes hands.

[Camus]

Just to clarify my previous post, in the day laborer situation, the officer would likely have the reasonable suspicion necessary to legally detain the individual to check the individual’s immigration status. Officers can always initiate a consensual encounter with an individual and ask about their immigration status (though it may be against their department policy to do so) and the individual is perfectly entitled to walk away.

[Bricker]

@Fear_Itself

The example Camus gave was a pedestrian on the street. Drivers are required to show their operator’s license anyway, so the status question is unnecessary. Care to have another swing at the ball that Camus pitched?

Sorry, I should have jumped back and read the context of the question; my bad.

Under SB 1070, if an officer stopped someone on the street because they had reasonable, articulable suspicion that the person was in the country illegally, then so long as the basis for this suspicion was not the person’s race, color, or national origin, the officer can detain the person for a reasonable period of time while attempting to verify the person’s immigration status with the feds (usually through an ICE or DHS database).

Under the current state of the law, an officer CANNOT “[stop] someone on the street because they had reasonable, articulable suspicion that the person was in the country illegally…” The law requires that a person reasonably detained for another offense must be asked about their immigration status if the officer reasonably suspects an immigration violation. In other words, the law does not permit an officer to detain for immigration suspicion; he must have already detained for another reason, and THEN reasonablysuspect immigration violationin order to be required to ask.

As I have suggested in other threads, this means that the safest implementation is to ask EVERYONE detained for any reason what their immigration status is.

So:

OFFICER: (To pedestrian) Sir, the woman you just told you’d pay for a date is actually an undercover police officer. That’s soliciting for prostitution. Do you have any ID?

SUSPECT: No.

OFFICER: OK, give me your name, and what’s your immigration status? Are you a citizen or a legal resident?

SUSPECT: Legal resident.

OFFICER: But you don’t have any ID? No green card?

SUSPECT: I left it at home.

Boom. Reasonable suspicion.

[Polycarp]

Question for you, Magellan,why, exactly, is it that they are “illegal aliens” in the first place? (It is relevant to what you asked; I’mnot playing games.)

[Camus]

@Bricker

Under the current state of the law, an officer CANNOT “[stop] someone on the street because they had reasonable, articulable suspicion that the person was in the country illegally…” The law requires that a person reasonably detained for another offense must be asked about their immigration status if the officer reasonably suspects an immigration violation.

This is correct. I remembered the text wrong.

[Damuri_Ajashi]

@Fear_Itself

Could you give an example of a reasonable, articulable suspicion of illegal immigration that is not racial profiling?

You catch a man crossing the border in the middle of the night?

A woman is wearing a sign that says “Hire me to be your nanny, I won’t cause any trouble because I am an illegal immigrant”

A child tells the first lady that her parents are illegal immigrants.

They have brown skin.

One of those might involve a little racial profiling if you are being really strict with the definition of racial profiling.

[Damuri_Ajashi]

@Little_Nemo

“When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…”

Because that’s the only way this will work.

Sure if you want to see a bunch of illegal Arizonans standing outside the home Depot in California, Arizona, Colorado, Nevada, and Utah.

[Damuri_Ajashi]

@magellan01

In other words, why did they feel the need to add " and subject to the jurisdiction thereof,"?

The children of foreign diplomats are usually born in hospitals that are not located in their embassy.

[Damuri_Ajashi]

@Bricker

As I have suggested in other threads, this means that the safest implementation is to ask EVERYONE detained for any reason what their immigration status is.

Or ask noone.

[boytyperanma]

@Damuri_Ajashi

Or ask noone.

The AZ law allows for the police to be sued for not enforcing that law. Asking everyone is the safest way.