How they get by with it?

I really need to collect my thoughts on this issue, but I think I can manage to get the point across.

As I've written time and time again, the federal government uses (or, misuses) the citizenship and equal protection provisions of the first section of the fourteenth amendment to establish an absolute federal tyranny over these States. We see the results of this work of their hands in Judge Susan Bolton's recent ruling per Arizona's immigration law; in the Tenth Circuit's rulings concerning Oklahoma's immigration law, in the removal of Ten Commandments monument in Stigler Ok.; in the Supreme Court's ruling in Kelo vs. New London a few years ago, and we could go on and on and on. But how do they get away with it?

Well, the simple answer is that we let them get away with it. The longer version involves something that many people are not aware of. It is called the federal "enrollment at birth program" sponsored by the Social Security Administration.

The fourteenth Amendment states that 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. Notice that there are two conditions to establishing U.S. citizenship -- born or naturalized AND subject to U.S. jurisdiction.

The Senate debates in the 39th Congress cover these aspects of the amendment pretty thoroughly, and the intent of the framers of the fourteenth amendment comes through loud and clear. But the issue at hand is that through this illegitimate practice of enrolling children into Social Security at birth the federal government meets the second of these two conditions, particularly with respect to children of parents subject to a foreign jurisdiction.

Mothers who have recently given birth inside an American hospital have some understanding of how this works. Hospital nursing staff ask the mother to fill out several forms, one of which contains a question about enrolling your baby in Social Security. Mothers may answer "yes" or "no" to this question, then sign their initials beside their answer. However, standard practice, I've learned both the hard way and through investigation into the matter, is for the nurses to answer "yes" for the mother in the case that she refuses to fill the paperwork out in the hospital, or, if she answers "no," and then to initial the question for her. This really does happen! I've seen it with my own two eyes. My wife refused to fill this paperwork out for one of our children in the hospital, and what I've just described to you happened, not once, not twice, but three separate times. All of which paperwork was ultimately destroyed. Their final approach was to threaten to not release the baby to our custody when my wife was released from the hospital, until she completed the application. To which I asked: "where is the law or statute that gives you this authority?" They answered that "well, it isn't a law, it's hospital policy." Then I asked whether I needed, therefore, to bring the sheriff with me when I came to pick them up? They said that wouldn't be necessary. Thought not.

Anyway, as bad as all of this is (and it is bad!), the point is that through the enrollment at birth program, the federal government subjects newborns to its jurisdiction, and immediately begins to apply the equal protection and due process clauses of the fourteenth amendment to such child. Whether the child's parents are aliens (legal or illegal) subject to a foreign jurisdiction is, at that point, no longer an issue. The child himself is subject to U.S. jurisdiction via enrollment at birth. Hence, all State and local laws affecting him are, thereby, subject to federal review, and/or, revision. Even before they take actual effect. Thus, if the federal government determines that a State law has the mere potential to inconvenience a certain group of persons subject to U.S. jurisdiction, it may strike out those provisions in the law. That's how the feds gutted Oklahoma's law of its most effective provisions. And it is the way it will ultimately gut Arizona's law. Popular monuments will continue to disappear from State and local government properties, religious emblems will continue to be removed from emergency vehicles, private property will be taken more easily "for public use," and on and on and on.

We have a serious constitutional crisis on our hands, folks. And we'd better start coming up with ways to solve it.

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On the methods, purposes and legitimacy of corrective Constitutional Amendments

Constitutional Scholar, Professor Rob Natelson, has written an interesting article posted at the Tenth Amendment Center concerning State initiated amendments to the U.S. Constitution.

By the way, the italicized descriptive I used in the previous sentence I sort of coined several years back when I discovered the procedure while reading the Constitution and the Federalist Papers. Natelson's descriptive is a bit different than my own, whereas it is denominated in his article the state-application-and-convention method -- a minor piece of trivia that only matters if someone is interested in searching the archives of this blog for my own posts on the topic of State initiated amendment proposals. Anyway,...

Below is a relevant excerpt from Natelson's article.

Mr. Natelson writes:

The Founders created the state-application-and-convention process primarily as a way to rectify federal abuses of power. The Founders recognized that clarifying and corrective amendments might become necessary even when the proper reading of the document seemed clear. The Ninth, Tenth, and Eleventh Amendments all are examples of clarifying and corrective amendments.

Precisely! And I think it may be time for another known as the 28th. Which is Fourteen multiplied by two. Hmm. ;-)

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My conversation with Senator Coburn

Yesterday evening I was able to meet Senator Coburn at a local Town Hall gathering. We had a short one-on-one conversation in a hallway shortly after the meeting was over. Below is an email I sent Senator Coburn today which should serve to explain the content of our short conversation.

Dear Senator,

Amending the constitution is supposed to be the Peoples' last resort method of solving serious constitutional issues before they become crises. A constitutional crisis exists whenever any part of the government simply ignores its provisions or refuses to obey them. Federal law does not necessarily trump State and local law regardless of whether the Congress “occupies a field,” and “intends a complete ouster.” And tacit acquiescence only matters while States are willing to simply “go along.” That is, if the constitution still means anything outside modern interpretation of the fourteenth amendment.

I personally find only one thing in the fourteenth amendment objectionable to myself. Namely the phrase “subject to the jurisdiction thereof.” By this phrase every other constitutional principle preceding it is effectively declared null and void, with the possible exception of the thirteenth amendment. We still have the original constitution but its principles only mean something in context of the fourteenth amendment citizenship provisions. What portions of it that we still observe in American politics and outside that context are only done as a matter of convenience to the central government. If or whenever it decides to usurp State and local authority in those matters, it will do so through the federal courts via the fourteenth amendment citizenship clauses. Count on it. This is the way things are and have been done for many decades in American politics. And it will not change until an explicit and authentic act of the whole People alters the way the game is played because liberalism dominates our politics whether we like it or not.

Therefore, my idea for amending the constitution to clarify the intent of the fourteenth amendment is far from being the “stupid idea” you said it was when I mentioned it to you this past Thursday in McAlester. Closing the borders is all well and good and I certainly agree that that needs to be done. But has the loudness of our declamations resulted in sealing the borders? Has it stopped this talk about granting amnesty to the tens of millions of illegal immigrants already here? Has it forced attrition on any of them as yet? Has it done anything to solve this “birthright citizenship” for children of illegal immigrants issue? Keep in mind also that I'm not proposing repeal of the fourteenth amendment, only clarification of its intent for our generations.

But there's a much bigger underlying principle you seem to be missing in all of this debate over State immigration laws, and etc. Ultimately it's not about whether the federal government has neglected in the past, or will continue to neglect in the future, its responsibility to protect our borders. No; what this is all about at bottom is that the constitution reserves to the States and to the local governments power to control or regulate a host of items within their own borders, without federal intervention and at their own discretion. Immigration is one of these reserved powers. Several States, including Oklahoma and Arizona, have made worthy attempts in recent years at exercising their discretion in this immigration matter, but to no avail. Simply stated, their most effective efforts have been railroaded by the federal courts who invariably cite the fourteenth amendment citizenship and equal protection clauses as their just cause for usurping the rest of the constitution. This method cannot be allowed to continue much longer or our fate as a nation is already sealed. And if you think you can get the federal courts out of the business of doing this short of amending the constitution to prevent it, well, I think you're very naïve about the power of the federal courts and the ability of anyone to pressure them into anything they don't want to do. As long as the fourteenth amendment exists as the courts have interpreted it, and without clarification from the People, the federal judiciary is going to continue following this pathway of establishing an absolute federal tyranny over these States.

The personality that I am will not allow me to simply complain about a thing without offering a viable alternative to it. Below is my attempt at solving this veritable constitutional crisis before it gets out of hand (it may well already be out of hand) and we're forced into a situation that none of us wants:

A proposal to amend the U.S. Constitution to transform the meaning of the fourteenth amendment back to its original intent; to end government by judiciary; to reinvigorate the principles of the constitution as written; to reintroduce the doctrine of reserved powers and to end the practice of admitting to the rights of citizenship at birth persons born in the United States to foreigners illegally residing therein. We introduce this amendment proposal as a means to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, and to secure the blessings of liberty to ourselves and our posterity.:

Section 1: The fourteenth amendment to this constitution shall not be construed by the United States or by any State to admit to the rights of citizenship, or subject them to their jurisdiction, children born to immigrant parents illegally residing within the United States, or subject to a foreign state, at the time of their birth. Persons born in the United States to alien parents temporarily and legally residing therein shall be subject to all terms and conditions, privileges and immunities, expressly provided for in their parents' visas and the laws of the States wherein they reside. The United States retains the power to establish an uniform rule of naturalization, but no State shall be compelled by the United States to admit to the rights of citizenship, nor subject them to their jurisdiction, any person or persons involuntarily.

Section 2: No State shall be compelled to house, harbor, educate, provide food or medical services, grant safe passage to or otherwise assist immigrants illegally residing within its borders, nor to conform its laws affecting such residents to the laws of the United States except those made pursuant to the constitution and this article. The exercise of Powers reserved by the constitution to the States or to the People shall be left to their discretion. No reserved power shall transfer to the United States except by process of amendment, but the United States may exercise reserved powers upon application to and express consent of the legislature of the States wherein they propose to exercise them.

Section 3: The Congress is hereby suspended for the term of twenty years from further enacting laws affecting immigrants to the United States or to any State, and no form of amnesty for illegal immigrants shall be granted or recognized during the term of suspension. No State shall be compelled by existing U.S. law to receive immigrants of any race, color, nationality or kinship.

Section 4: Congress shall have power to enforce the terms of this article by appropriate legislation, but no construction of its provisions, or of the provisions of any other article of the constitution which shall be effective at the time of its adoption, shall ever be effective to establishing unconditional federal supremacy in law making, nor shall the provisions of this article affect the citizenship of persons born or naturalized within the United States prior to its adoption.

Section 5: The terms and conditions of this article are hereby exempted from judicial review.

While I certainly understand that issues will be raised with this proposal as written, it forms a good workable model for ending judicial and federal tyranny via the fourteenth amendment in our generation. We owe it to our children and grandchildren to leave them a free and balanced constitutional government to work with. What they do with it from there is, of course, up to them.

As I've barely skimmed the surface of how the federal government abuses the fourteenth amendment citizenship provisions to its own purposes, please engage me in further discussion on this matter at your convenience.

Respectfully,

Terry D. Morris Jr.
McAlester, OK

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We live in a world of constitutional illiterates

Over the last couple of months I've read several editorials by several different newspaper authors decrying Arizona's disregard for a "fundamental constitutional principle" in making their own immigration law.

What is the fundamental constitutional principle commonly cited by all of these writers? That "federal law trumps State law" of course. Yeah, and "immigration is a federal issue" too. Right.

One editorial writer, Mike Jones of the Tulsa World, cites Article VI, supremacy clause, and dogmatically asserts that this provision means that federal law trumps State law without condition or circumstance, thus obliterating the meaning of the provision. Another editorialist declares that Arizona's law must not stand because it violates the constitution by usurping federal power. Hmm., let's investigate the matter for ourselves:

First, Article VI, supremacy clause declares that federal laws made in pursuance of the constitution are supreme to State and local laws. Can we agree on that?

Second, the tenth amendment declares that the powers not delegated to the federal government by the constitution, nor prohibited by it to the States are reserved to the States, etc. Can we agree on that?

Third, Article I, Section 8 delegates to the federal Congress authority to make an uniform rule of naturalization. Surely we can agree on that.

Fourth, since naturalization is not immigration and vice versa (we can agree on that, can't we?), and since, therefore, the constitution neither delegates authority over immigration to the federal government, nor prohibits it to the States (uh oh, this one is liable to stick in someone's crawl), and since only federal laws made pursuant to the constitution are declared by the constitution to be supreme over State and local laws,

And,...

since Arizona's law in no way infringes upon the federal government's power to establish a uniform rule of naturalization,

Therefore, I can only conclude that not only is Arizona's immigration law completely constitutional, but that since it IS made in pursuance of the constitution as written, unlike federal immigration law, that Arizona's immigration law trumps federal immigration law, per Article VI, Supremacy clause and the Tenth Amendment.

Good day!

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