[Introductory note: The essay which follows was written in response to the growing and seemingly pervasive tendency in our nation to ignore the fundamental principles of our governing constitution and all laws made in pursuance thereof, or, the Supreme Law of the Land.
Article VI of our Constitution states that only laws made pursuant to the constitution are supreme, meaning that U.S. laws not made in pursuance of the constitution are, by virtue of this stipulation, not supreme, and actually null and void. That, of course, doesn't prevent their being adopted and enforced, but the constitution says what it says in any event, and in spite of the variety of ways it is misconstrued and misapplied. Additionally the tenth amendment was added to the constitution as a more explicit statement of this fundamental governing principle, declaring that powers not delegated to the U.S. by the constitution, nor prohibited by it to the States, are reserved to the States or to the People. Hence, federal law does not necessarily “trump” State and local laws, and immigration is not an exclusively federal issue, contrary to popular opinion on both counts.
No single constitutional provision has been more abused pursuant to the exchange of blatant falsehoods for fundamental constitutional principles than that containing the citizenship provisions of the fourteenth amendment. If the collective mind of the American People can be successfully persuaded that all persons born in the United States are, and of right ought to be U.S. citizens, regardless of the status of their parents at the time of birth and in spite of the actual provisions established by the fourteenth amendment, then persuading it, by inference, that virtually everything preceding the citizenship provisions of the fourteenth amendment is, for all intents and purposes, null and void, is not that difficult a task to accomplish. Under such circumstances, Congress may simply, as certain elements within our society assert with the backing of various federal courts, “occupy a field and intend a complete ouster” in order to establish federal supremacy over State and local governments and the powers reserved to them by Article VI and amendment X of the constitution. Meaning simply that the People and their State and local governments are slaves to the whims of the federal government, a condition of servitude which is unacceptable to a free People. It is, after all, a foundational principle of our venerable form of government that by the consent of the governed governments are formed deriving from them their just powers. Everything to the contrary notwithstanding.
Therefore, the purpose of the following essay is to establish that the citizenship provisions of the fourteenth amendment, contrary to what seems to have become the general consensus in our nation, were written, approved and ratified with the understanding that as a complete procedure it was intended to exclude all persons born in the United States who are subject to a foreign jurisdiction, legal and illegal “immigrants” excluded alike. Until we correct the record on this important issue and restore in our people a regard for the sacred obligation imposed by the constitution as written, we will continue to see the erosion of our constitution and its fundamental principles, and the final establishment of an absolute federal tyranny over these States.]
An Essay concerning the citizenship provisions of the Fourteenth Amendment: why the subject to the jurisdiction thereof stipulation prohibits admission to the rights of citizenship of three distinct classes of persons born in the United States.
by Terry Morris
Is it now true, or has it ever been true, that our governing constitution declares that “all persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside?” That seems to be the general consensus among a certain element of modern American society, both as to the principle of the matter and as to fact, and one which certain 'scholarly' members of this faction within our society attempt to perpetrate upon the rest of us with the admission of very few, if any, exceptions to the rule. Consider the following case in point.
Within the first paragraphs of his August, 2010 column written for Bloomberg News laughably titled “Born in the U.S.A.: A history lesson,” Columbia University professor of history, Eric Foner, offers his enlightened view of the citizenship provisions of the fourteenth amendment, to wit:
...the amendment establishes the principle of birthright citizenship. With minor exceptions, all those born in this country are American citizens, whatever the status of their parents. (italics added)
Thus begins our veritable 'history lesson' with the establishment of nothing short of a false premise almost at the very outset. Namely, that with minor exceptions to the rule, the principle of 'birthright citizenship' applies to all persons born in the United States.
It is a sad state of affairs, indeed, which has brought us to this ungrateful place in our history as a nation; a place in which we are constantly bombarded with this kind of revisionist history, both in the electronic and the print media. But were we to read no further into professor Foner's “history lesson,” we could rest comfortably in the assurance that virtually every conclusion which follows the excerpted passage above is invalid (with minor exceptions, of course), based on the principle that the establishment of a false premise usually results in the formation thereupon of a false conclusion. Nonetheless, inquiring minds want to know what, to Professor Foner's mind, constitute the 'minor exceptions' to birthright U.S. citizenship he alludes to above.
Foner is predictably eager to explain:
In a sense the 14th Amendment wrote into the constitution the results of the Union's triumph and the destruction of slavery. It begins by defining as citizens all persons born or naturalized in the U.S. “and subject to the jurisdiction thereof” -- language meant to exclude Indians, deemed to be citizens of their respective tribes, and American-born children of foreign diplomats. (emphasis added)
Foner's explanation I've emphasized in italics is, of course, referring to the language he puts in quotes. His conclusion as to the meaning of this language per the intent of the framers thereof brings several questions immediately to mind:
In general, what about the phrase “and subject to the jurisdiction thereof” does Professor Foner not understand? More particularly, what exactly about this stipulation's inextricable connection to the first does he not understand?
How on earth could an accredited Professor of History employed by a renown American University possibly come to the conclusion that this language was meant to exclude the two classes of persons he mentions above and none other? Is it really possible that someone whose primary business is “scholarship” somehow fails to understand the fundamental meaning of the term and the importance of this term's fundamental meaning to his profession in particular? Moreover, why would someone with his credentials say something like that in a syndicated newspaper article read by millions of people all over the United States unless he is (1) supremely confident that his view of the subject is the historically accurate one, or (2) he is supremely confident that his view of the subject will be accepted by the general readership as the historically accurate one? Does he not understand as well that he ruins any credibility his status confers on him by assigning too narrow a meaning to this stipulation in disregard of all evidences of its intended broad application? Does he even care? Or might his simply be a case of “easy come-easy go,” whereby people tend to grossly underestimate the value of things they have not actually earned?
It is said that “a text taken out of context is a pretext.” By attributing to the subject to U.S. jurisdiction clause of the fourteenth amendment the extremely limited meaning he's assigned it as the intent of its authors bequeathed to posterity, Professor Foner wrenches the phrase out of historical and written context, thus establishing a pretext. It has also been truthfully said that “there is nothing so absurd than when you repeat something often enough, people begin to believe it.” Let us not fall victim to this absurdity of believing a thing based on its having been oft-repeated to us.
The purpose of the following paragraphs is to correct the record on this vitally important subject by helping those not as yet familiar with the citizenship provisions of the fourteenth amendment, and the intent of the framers thereof, to familiarize themselves with both, thus becoming armed with historical and logical fact with which to refute the false assertions of persons such as Professor Foner and others, and to expose them for the frauds and impostors that they truly are. Were professor Foner a serious historian truly dedicated to preserving the integrity of his work, he would not engage in the business of purposely misleading people as to the history of the citizenship provisions of the fourteenth amendment. Nor would he do so were he a serious American dedicated to the preservation of the U.S. Constitution and its focus of securing the blessings of liberty to ourselves and our posterity.
The irrationality of complicating a simple matter
As to the issue of deductive reasoning, one of the very first questions that occurs to candid minds upon reading Professor Foner's explanation of the language in question is, “then why on earth didn't the framers of the fourteenth amendment simply state it that way within the provision itself before they approved it and sent it to the States for ratification?” Are we to assume that it never occurred to them that the subject to the jurisdiction thereof language might possibly be used to exclude more classes of persons than they themselves intended by it? Why would they risk a broader application of the principle by future generations if their intention, for once and for all time, was to formally make it the Supreme Law of the Land that all persons born in the United States, excepting two classes of persons only, are citizens? Certainly “all persons born in the United States, excluding tribal Indians and children of foreign diplomats,” is much more easily understood by all persons in all times to say what Professor Foner attributes to the language as written. Keep in mind that it is Professor Foner who is saying this, not me, and as we shall discover, certainly not the framers of the fourteenth amendment.
Foner's mention of the provision's application to Indians in particular implies that he's aware of the debate that occurred between Senators in the 39th Congress upon the question of whether to add the words “excluding Indians not taxed” to the language originally presented, although he seems not to have understood the perspective the overall contents of this debate furnishes to the provision in question. Ultimately, of course, this particular motion was rejected and it was decided to leave the second provision exactly as it was offered and as we see it now, a fact which itself disproves Foner's theory and all arguments he has crafted, or shall ever craft, to support it.
Working upon the assumption that the framers of the fourteenth amendment were not collective or individual morons, we may further assume that the language in question was chosen with the broad idea in mind of excluding several classes of persons Professor Foner thinks should be included. While the persons Professor Foner thinks should be included is not in question, mere assumptions will not suffice to prove our point as to the framers of the fourteenth, anymore than his opinion on the matter will to prove Foner's. Therefore, let us investigate the matter, putting our respective theories to a more reliable test. And let the best theory win.
What was to be the scope of the “subject to the jurisdiction thereof” stipulation?
According to Professor Foner's thesis, the scope of the provision as intended by the framers is, or was, extremely narrow, meant only to exclude tribal Indians and the children of foreign diplomats from admission to U.S. citizenship. Meanwhile, the scope of the all persons born or naturalized provision was, according to Professor Foner, meant to be extremely broad, including virtually all children born in the U.S. regardless of the citizenship status of their parents, or, the political jurisdiction to which they are subject. Here we have a theory, consistent in all its parts and conditions, accrediting to the citizenship provisions of the fourteenth amendment a virtual all-inclusive ideology.
This is what Foner means in his statement declaring that “with minor exceptions, all persons born in the United States are citizens, etc.” In other words, Professor Foner's perspective on the matter is extreme and utterly imbalanced, whereas he attributes virtually all relevancy or importance to the first stipulation, while leaving very little room for application of the second, with the “minor exceptions” he cites of course. This sort of imbalanced perspective is analogous to purposely over-inflating by eighty percent of the manufacturer's suggested pressure the left-front tire on one's vehicle while simultaneously under-inflating its opposite by the same amount, then taking it onto the open highway and driving it thirty mph over the speed limit. In addition to being stupid and self-destructive, this sort of procedure is also dangerous and illegal, as well as immoral.
Foner's view of the subject is as blatantly incorrect in the issue, in light of both the provision itself as written and the Senate debates upon the question of its inclusion to head the fourteenth amendment, as it is plainly stupid and dangerous to drive a vehicle on a public roadway following our analogy above, ignoring both the plain recommendations stamped on the tire itself and the poor handling of the vehicle in question as a result. In either case those of us who choose to engage in this kind of behavior incur the same basic problem, destruction of ourselves and our posterity.
While the Senate debate itself does support Foner's claims as far as his claims go, we must understand that the language “and subject to the jurisdiction thereof” cannot possibly have meant to the framers of the fourteenth amendment that it was to exclude tribal Indians and the families of foreign diplomats only, for the content of the debate also reveals, and much more importantly, that in general the scope of the second provision was to be more broadly applied than Mr. Foner suggests or wants to admit; it was not intended to exclude those classes of persons only, in other words, but to encompass within its scope of exclusion all classes of persons subject to a foreign jurisdiction, to include “immigrants” to the United States (legal or illegal) and their American-born children.
Missing the point of the debate over “Indians not taxed.”
We've established that Professor Foner at least knows something of the Senate debate in question, but it appears by Foner's argument that he places too much significance on the debate's treatment of Indians, as though the conclusion he's formed upon it is that since the discussion was initiated and pursued upon this specific question of the provision's probable affects on tribal Indians as a distinctive class, that this necessarily means that the second provision was included in the language to deal with that question in particular but did not touch on any sort of general disqualification. Which, and as we shall show, is a very erroneous view.
What the debate actually reveals, in point of fact, is that this provision was included as a generally applicable disqualification; that the question of its pertinence to Indians arose as an afterthought in the body of the Senate because a few Senators thought that the language could be misconstrued to subject tribal Indians to U.S. jurisdiction, thus having an effect opposite their intentions per this class of persons, with whom the United States were under treaty obligations. This general disqualification is the part of the fourteenth amendment that the Eric Foners of the world reject or simply dismiss because it doesn't align with their liberal/progressive world view and everything that flows therefrom. After all, if they're liberals or progressives themselves, then everyone else ought to be or should have been, right? While somewhat beside the point, we must understand that the fundamental nature of progressivism is that it is oppressive. Nonetheless, Senator Howard of Michigan initially explained the language of these provisions in the following, unambiguous terms:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every 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. (italics added)
For the sake of argument, and only for the sake of argument, one may grant the remote possibility that this first portion of Senator Howard's more expansive opening remarks introducing this language could be read, in and of itself, to define the citizenship provisions as Foner suggests they were intended to be defined. One may not read this opening portion of the statement, however, outside the context of his entire introductory statement, nor of the entirety of the debate which ensued, without incurring the censure of attempting to establish a pretext.
Senator Howard continues his introductory remarks:
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of embassadors (sic) or foreign ministers accredited to the government of the United States, but will include every other class of persons....(italics added)
But of course!
While Senator Howard does not specifically mention tribal Indians “not taxed” in these statements, the ensuing debate quickly reveals that his intention and that of his colleagues was to exclude them as a distinctive class of persons not subject to U.S. jurisdiction. But that's really beside the point as it relates to our discussion, and one suspects that Professor Foner knows that it's beside the point in spite of his making it a central point per the second stipulation.
Here we have Senator Howard establishing the proper context in which to read the subject to U.S. jurisdiction provision of the clause in question, which is that in addition to its excluding at least three distinct and broad classes of persons according to Senator Howard, it is inextricably connected to the first provision, forming with the first a two-part procedure. Unless the phrase “with minor exceptions” means all American-born foreigners, all American-born aliens, and all American-born persons belonging to families of ambassadors or foreign ministers accredited to the United States (which seems rather “major,” not “minor”), then we seem to have confined the second provision's language to too narrow a scope according to Senator Howard's explanation above.
According to Prof. Foner, though, this provision was only meant to apply to tribal Indians and American-born children of foreign diplomats. As we can see in Senator Howard's statements introducing this language, however, and as we shall see in the statements of other Senate members of the 39th Congress, it was intended to exclude many more than those comprising these two classes of persons Foner mentions.
Indeed, the contents of this debate reveals that had the body of the Senate understood the scope of the provision in question in the very limited, idiotic sense that Prof. Foner interprets and demands it should be applied, they would have rejected it out of hand and opted for a broader version excluding those classes of persons aforementioned. Are we to take Foner's explanation over the explanation of the very person who originally proposed that the citizenship provisions be added to section one of the fourteenth amendment and the body that approved it? Certainly not. We are authorized to conclude the following, however, based on the entirety of Senator Howard's statements above.
First, Senator Howard's statement that “this will not include persons born in the United States who are foreigners, aliens, etc.,” obviously meant to him that it excludes these persons, for the opposite of include is exclude and the term “not include” is another way of saying exclude. To say otherwise is to violate all three elemental laws of rational thinking, I.e., the law of non-contradiction, the law of identity, and the law of excluded middle. At the risk of belaboring the point, saying that a thing will not include x,y,z, is to say that it excludes x,y,z. Most any third grader understands this simple concept, and Senator Howard certainly understood it.
Second, Senator Howard's choice of words otherwise is instructive in its own right. Note that he makes a distinction between those he calls “foreigners” and those he deems to be “aliens” in the second sentence. Note also that his word “aliens” is disconnected from persons he describes as “belonging to families of ambassadors or foreign ministers” by the insertion of a comma between the two classes. So that his stated intention by this language was to exclude from the rights of citizenship, until such disabilities are lawfully removed, three distinct classes of persons. According to Senator Howard the classes of persons to be excluded by the provision in question are as follows:
(1) American-born foreigners,
(2) American-born aliens and,
(3) American-born persons belonging to Ambassadors, etc.
So that his words in this sentence might just as well read: “This will not include persons born in the United States who are foreigners; this will not include persons born in the United States who are aliens; and this will not include persons born in the U.S. who belong to families of ambassadors,” etc. Or, if it be our preference, “this will exclude persons born in the United States who are foreigners; this will exclude persons born in the United States who are aliens; and this will exclude persons born in the U.S. who belong to families of ambassadors, etc.” Senator Howard simply shortened these phrases as a matter of brevity, but either way we state it conveys the exact same exclusionary message.
(Tribal Indians born in the United States would in general fall under the second class of persons as we've listed them, while a few of them would fall under both the second and third classes of persons to be excluded by these provisions.)
Of particular note is that in each of the above instances a distinct class of persons born in the United States is excluded by the provision according to Senator Howard. In other words, and according to Senator Howard, simply having been born in the United States, or within its limits, is insufficient qualification for admission to U.S. citizenship; in addition to U.S. birth one must also be subject to the jurisdiction thereof, just as the provision plainly states.
We may safely assume that Senator Howard and others anticipated that many persons besides tribal Indians and those belonging to foreign diplomats would in future be born in the United States, who were not, by virtue of their birthplace alone, subject to U.S. jurisdiction. This being the case, the 39th Congress deemed it necessary to exempt such persons, whomever they were and from whence ever they came, from becoming automatic shareholders in the rights and duties of U.S. citizenship.
Did Senator Howard wrongly distinguish between foreigners and aliens?
It may be necessary to better understanding Mr. Howard's distinction between the terms “foreigner” and “alien” -words we sometimes use interchangeably- to exercise the first element of scholarship and research the proper definitions of these terms as he himself probably understood them in 1866. Webster's 1828 American Dictionary of the English Language defines the word “alien” thusly:
1. Foreign; not belonging to the same country, land or government.
2. Estranged; foreign; not allied; adverse to; as, principles alien from our religion
Alien: A foreigner; one born in, or belonging to, another country; one who is not a denizen, or entitled to the privileges of a citizen.
Whereas the 1828 defines the word “foreigner” in these particular terms:
Foreigner: A person born in a foreign country, or without the country or jurisdiction of which one speaks. A Spaniard is a foreigner in France and England. All men not born in the United States are to them foreigners, and they are aliens till naturalized. A naturalized person is a citizen; but we still call him a foreigner by birth.
And how does the 1828 define a citizen as to the United States?:
In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.
Regarding U.S. citizenship, recall that Senator Howard declared in his opening address to the Senate body above-recorded that “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every 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.
We see that Mr. Webster too makes a distinction between a foreigner and an alien in his phrase “and they (foreigners) are aliens till naturalized.” According to Webster's 1828, then, a foreigner as to the United States is simply someone born outside the geographical or political boundaries of the United States. That is, it is a matter of physical or actual birthplace which determines whether he is a foreigner or a native. Whereas an alien is someone who may be born here or elsewhere (one born in, or belonging to, another country), yet is subject to a foreign jurisdiction. That is, it is a matter of personal allegiance which establishes political jurisdiction as to himself. According to these definitions, all foreigners (or persons born in a foreign country) who have not been naturalized are aliens. All aliens (or persons subject to a foreign jurisdiction) are not, however, foreigners. Some persons are both foreigners and aliens, which is to say that they are born somewhere other than within the political or geographical boundaries of the United States and are subject to the jurisdiction of a foreign government. Such are our own “illegal immigrants,” so called.
The distinction to be made between the terms foreigner and alien is in one sense comparable to that to be made between the terms immigration and naturalization. Whereas in the latter case we sometimes mistake the federal government's constitutional authority to establish an uniform rule of naturalization with control or regulation of immigration to this country. By comparison to the former case, we sometimes exchange the term “foreign” and its derivatives, with the term “alien,” and vice versa. But these terms, as we've shown, have distinctive meanings which apply to themselves exclusive to all others. And this is the reason that Senator Howard used the terms foreigners and aliens separately, to signify different things, or identify distinct classes of persons to be excluded from citizenship, in the same sentence.
Additionally, it is important to understand that the United States cannot simply subject persons to its jurisdiction whenever it decides to do so without authority to do so and without the consent of the persons supposedly subjected. That's a matter of individual choice on the one hand, and of constitutional authority on the other. Only totalitarian regimes exercise this kind of illegitimate authority over those persons it unilaterally deems to be its 'subjects'. And the United States as a totalitarian regime is no different than any other totalitarian regime. Doing so is also tantamount to declaring war on the foreign governments whose legitimate jurisdiction these persons are actually under, whether it is by their own choice or that of the government whose jurisdiction they're under. In any event, it isn't any better for the United States to unilaterally subject someone to its authority than it is for their own government to do the same. In fact, it's arguably worse. Being subject to the jurisdiction of the United States is by no means an unqualified good, contrary to what a certain thoughtless, dependent element of our society seems to believe.
So we see that there is no mistake; no misplaced comma in Senator Howard's statement above. While some may be tempted, at first glance, to combine the two latter classes of persons Senator Howard describes into a single class by reading his words thusly: “aliens belonging to the families of ambassadors, etc.,” this is not the way it is recorded in the Congressional Globe, nor the way he intended it. He properly makes a distinction between foreigners and aliens, and between those classes of persons and persons belonging to Ambassadors or Foreign ministers accredited to the United States. Which is to say that he was identifying three distinct classes of persons to be exempted by the second of the citizenship provisions of the fourteenth amendment, as shown above.
Yet Mr. Foner's column declares that since in 1866,
...just about anyone who wished to enter the U.S. was free to do so.
this necessarily means that the framers of the fourteenth amendment could not have intended by its second provision to exclude that class of persons we call today “illegal immigrants,” or, at least, not their American-born children (a non-sequitur if there ever was one). Which, besides ranking among the most absurd arguments I've ever seen or heard, falls flat in the face of Senator Howard's own words above-cited. Clearly Senator Howard intended by this language to exclude the children of immigrants to the United States, legal and illegal 'immigrants' alike. If people like Professor Foner could read such provisions aside from the mind-numbing influence of their leftist ideological bent and their modern-centric view points, it would be abundantly clear to them that far from including virtually everyone within the scope of its citizenship requirements, the fourteenth amendment, as recorded, excludes several classes of U.S. residents, legal and illegal alike.
Besides, Foner fails to add perspective to his assertion stating that “just about anyone who wished to enter the U.S. was free to do so” during the era in question. “Free to do so” in what sense? Once again, Foner makes the inadmissible mistake of applying an irrelevant circumstance as though there is some relevance in the fact to the establishment of fourteenth amendment U.S. citizenship. Did the central government consider, at the time, control or regulation of immigration to this country an exclusively federal issue as it seems to consider it now? Certainly not. Moreover, did the fourteenth amendment formally transfer authority to control or regulate immigration from the State governments to the central governing authority? Did it remotely touch on the subject of immigration to this country?
But as Noah Webster once stated concerning man's faculty of reason, “but reason, without revelation, and without cultivation, is a miserable guide. It often errs from ignorance, and more often from the impulse of passion.” We may also here invoke the principles of the adage which states that “it is hard to reason someone out of that which they have not reasoned themselves into to begin with.” I very much doubt that the fault of Professor Foner's erroneous judgment on these issues can be attributed primarily to ignorance on his part, but to his attachment to, and investment in, the principles of open-borders multiculturalism and the passionate impulses this policy and its opponents excite within him. He does, however, personify a very great, societal-wide problem in modern America.
As a generation, we moderns tend to place far too much significance on the “legal” vs. “illegal” status of U.S. residents subject to a foreign jurisdiction. Simply being in the United States “legally” does not necessarily mean that the person or persons in question are subject to the full jurisdiction of the United States. Indeed, the whole idea of legal immigration to the United States implies that the persons thus denominated are not, per their legal immigrant status, under the complete jurisdiction of the United States, else they wouldn't be deemed “immigrants,” “temporary workers,” or whatever one likes to call them. Thus, these persons cannot, as such, be citizens by virtue of the express provisions of the fourteenth amendment and in spite of what the Prof. Foners of the world assert to the contrary. This is so obvious a point that our even feeling the necessity of mentioning it is an assault on our very beings. But it gets even worse.
From the ridiculous to the absurd, and beyond
But to give credit where credit is due, and in spite of the ridiculousness of his denying its being of any relevance beyond the extent of those specific cases he cites, Professor Foner at least acknowledges the existence of the second of the two citizenship requirements of the fourteenth amendment. In the case of certain other writers, however, they do not merely discount the importance of the second provision, they omit it altogether as though it does not, nor ever did, exist. Consider USA Today's DeWayne Wickham in his more recent syndicated column disparagingly titled: “Tea Party is today's 'know nothing' movement.”
Mr. Wickham writes:
Never mind that the Constitution says “all persons born or naturalized in the United States” are citizens. They [Tea Party candidates] want to undo that constitutional provision.
The Constitution says thus and thus, and Tea Party candidates want to “undo” the born or naturalized stipulation of the fourteenth amendment? I beg to differ on both points. In addition to the establishment of yet another false premise, we seem to have here a classic case of “the pot calling the kettle black,” to wit:
The first and obvious question one familiar with the citizenship provisions of the fourteenth amendment should ask Mr. Wickham is why he has omitted any mention of the second part of the provision in his column? By contrast to Professor Foner who denies its applicability in most cases, Wickham does not as much as offer a hint of its existence in his piece, as if to say, without actually saying it, that it doesn't exist. But, of course, were he to say anything about it, it would clue some people into the fact of its actual existence, which he fears, of course, would defeat his apparent purposes. People like this do not want us reading the actual words of the constitution, they want us to read what they say the constitution says and to take them at their word. But these people are no more authorities on the constitution than the Pope is the Vicar of Christ.
The second question is, of course, in what way precisely do Tea Party candidates want to “undo” the first requirement according to Mr. Wickham? In other words, saying that a specific group of persons (political candidates in this case) want to undo something is one thing; showing evidence that they want to undo it is quite another. As we all know all too well, anyone can say anything and get away with it a lot of the time depending, but what evidence does Wickham show to support his claim against Tea Party political candidates? The answer is none. Wickham seems to be of the high-minded persuasion that his opinion on the matter is evidence enough of the fact, but it's quite impossible to undo that which isn't done in the first place. As we've shown, the constitution does not say that “all persons born or naturalized in the U.S. are citizens.” Hence, this having not been done, it cannot possibly be undone.
The answer to the second question is that they don't want to undo the all persons born or naturalized stipulation, anymore than I want to undo it. Besides the fact of my clear understanding of what they're trying to undo in actuality, the evidence itself suggests that what they do want to undo is this practice of the federal government of ignoring the relevance of the second of these provisions as inextricably connected to the first, and the impact that this long-established habitual practice has had upon our society, both materially and psychologically.
Persons like myself rail about the fourteenth amendment's citizenship provisions, not because we wish to “undo” them, but because we've come to understand that virtually all of us have been conditioned to place all significance on the all persons born or naturalized provision at the expense of the and subject to the jurisdiction thereof stipulation. We've further learned that these stipulations form a pair; a matching set, as it were, the one no more or less important than the other.
But since Wickham raised this question of a certain class of persons wanting to undo constitutional provisions, what more evidence do we need than the omission of one part of an inseparably connected two-part procedure to show that the person who commits the act of omitting it seeks to undo the entirety of the procedure, if not the whole constitution? Before we know it, “all persons are citizens” will be the cry of these enemies of the constitution and representative Republicanism. Indeed, that is the cry of a certain element of our society already whereas some assert that the term “illegal alien” is a wholly illegitimate term, incompatible with what they term “Americanism” and the U.S. Constitution. Nothing, of course, could be further from the truth or common sense.
Parts 1 and 2 of a two-part procedure are both essential to the completion of a process:
As mentioned above, the first sentence of the fourteenth amendment inscribes a two-part procedure. All Persons are declared to be citizens therein who are (1) born or naturalized in the United States and (2) subject to the jurisdiction thereof. In other words, one must accomplish or adhere to both of these procedures to qualify for U.S. citizenship and the entitlements of U.S. citizens. We can know this, among other ways, by the inclusion of the conjunction “and” inseparably connecting the necessary procedures, which is to say, in a manner of speaking, that they work hand-in-glove. Consider:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens, etc. (italics added)
The provision does not say “or,” nor does it say “and/or” (both of which is absurd in this context), but it says “and.” Consider the absurdity imposed on these provisions as separated or disconnected by the word “or.” The provision would then read:
All persons born or naturalized in the United States, or subject to the jurisdiction thereof, etc.
(“And/or” imposes the exact same absurdity upon these provisions.)
The absurdity of this rendition obviously consists in its making citizens of persons not subject to U.S. jurisdiction equally with those who are. So that persons may or may not be subject to U.S. jurisdiction and still be citizens entitled to the privileges and immunities of citizens so long as they successfully meet the requirement of the first provision, or, they're simply born in the United States. Which, of course, is absurd. Meaning, of course, that Mr. Wickham's assertion above, and Mr. Wickham himself, therefore, is absurd.
Certainly persons born in the United States to alien parents subject to a foreign jurisdiction are themselves, at least in part, subject to a foreign jurisdiction, thus aliens, thus ineligible for U.S. citizenship until their status changes by some authentic act such as naturalization. Since naturalization procedures do not apply to minor children, those born in the United States to alien parents subject to a foreign jurisdiction cannot be naturalized citizens. Nor do they qualify for birthright citizenship. Thus, they cannot be citizens per the fourteenth amendment.
Not to insult the intelligence of the reader, but do you make it a habit of walking around in public with one shoe on and one shoe off? That is precisely what the Wickhams and Foners of the world would have us do regarding the citizenship provisions of the fourteenth amendment.
A simple illustration
We've established in the preceding section that United States citizenship, according to the fourteenth amendment which formally establishes and defines it, involves a two-part procedure, the two parts or ingredients being inextricably connected. This is to say that non-compliance with one or the other, or both of these procedures, means that the person or persons to which they apply are not qualified to be United States citizens. This is easily illustrated by way of the following example.
Some time back I received a notification letter in the mail from the U.S. Census Bureau. This notification was sent to inform me that, within a few days, my residence would be receiving a “very important survey” called the “American Community Survey” as part of the 2010 U.S. Census program. The notification further instructed me that,
When your questionnaire arrives, please fill it out and mail it back promptly.
Note that my instructions regarding my responsibility per the survey, precisely like the fourteenth amendment's citizenship clause, contained two requirements necessary to completion of the process joined by the connective word and. Meaning that I was to (1) answer the questions on the survey, AND (not “or,” not “and/or,” but and), (2) send the completed survey back to the Census Bureau. As an aside, I was also informed in my notification letter that “your response to both (the 2010 Census and the American Community Survey) is required by law,” and that “Title 13, as changed by Title 18, U.S. code, imposes a penalty for not responding.” The penalty to be imposed was not specified.
Quite obviously, failure on my part to follow either or both of these instructions results in non-fulfillment of the intended process. If I (1) fail to answer the questions on the survey, and/or, if I (2) fail to mail the completed form back, besides my being subject, therefore, to the imposition of an unspecified “penalty,” the process itself has been railroaded. While this particular process ought to be railroaded due to the invasive nature of the questions on the survey, having no connection to the purposes of a census, the point is that the process is incomplete by virtue of my failure to follow the instructions provided me; it is railroaded whenever one fails to follow both of the procedures required. And the very same principle applies in the case of U.S. citizenship under the provisions of the fourteenth amendment. Again, persons must be born or naturalized in and subject to U.S. jurisdiction to qualify for U.S. citizenship. There is no legitimate way of getting around this simple truth, though our own experiences bear witness to the fact that there are numbers of illegitimate ways of getting around it, not the least of which is general dissemination of false “facts” and half-truths like we've seen above.
Thomas Jefferson understood this concept very well. Upon his entrance to the office of the presidency, Jefferson discovered that his predecessor, John Adams, had signed and sealed a number of commissions for federal justices of the peace in Alexandria, and had left them on the desk of the department of state undelivered. Mr. Jefferson having forbade their delivery, Marbury, being named in one of them, applied to the Supreme Court to have them delivered by the Secretary of State (Madison). Recognizing that it had no constitutional jurisdiction in the case, the court took no legal notice of it. But the chief justice, John Marshall, went on to explain that the court would command the delivery had it jurisdiction. Which, of course, was an instruction to the lower courts having jurisdiction in the case should Marbury apply to them. In a letter to Justice William Johnson concerning these events, Jefferson laments:
Besides the impropriety of this gratuitous interference, could anything exceed the perversion of the law? For if there is any principle of law never yet contradicted, it is that delivery is one of the essentials to the validity of the deed. Although signed and sealed, yet as long as it remains in the hands of the party himself, it is in fieri only, it is not a deed, and can only be made so by its delivery. In the hands of a third person it may be made an escrow. But whatever is in the executive offices is certainly deemed to be in the hands of the President; and in this case, was actually in my hands, because, when I countermanded them, there was as yet no Secretary of State.
In other words, the appointment must be made (signed and sealed) and delivered before it becomes a deed. Both elements of the deed are essential to its becoming a deed, as with my instructions from the Census Bureau; as with the citizenship provisions of the fourteenth amendment.
In my particular case, the so called “American Community Survey” in my possession remains valueless to the Census Bureau as long as it remains in my possession, whether I've answered its questions and sealed it in its envelope or not. As long as the second requirement (delivery of the completed survey to the Census Bureau) is not fulfilled, the process is not completed. But in answer to Mr. Jefferson's question, yes, modern application of the fourteenth amendment's citizenship provisions exceeds the perversion of the law perpetrated by judge Marshall in the Marbury v. Madison case.
From whence do the citizenship provisions of the fourteenth amendment emanate
Getting back to Professor Foner's rendition of the clause in question, it was mentioned a number of times above that a lively Senate debate concerning whether to add the words “excluding Indians not taxed” within the citizenship clause of the fourteenth amendment, was initiated by Senator Howard's explanation to that body of whom the clause in question would include and exclude within the mantel of its protections. At one point in the debate, Senator Johnson of Maryland addressed the floor and read from the Civil Rights Bill from whence the citizenship provisions of the fourteenth amendment derive:
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens. (italics added)
Certainly immigrants in the United States, legal and illegal alike, are subject to some foreign power or other inasmuch as tribal Indians of the era were subject to the jurisdiction of their tribal governments exclusive to the United States.:
Mexican immigrants are subject to the jurisdiction of the government of Mexico;
Italian immigrants are subject to the jurisdiction of the government of Italy;
Chinese immigrants are subject to the jurisdiction of China and so on, so long as these persons retain the status of “immigrant” or “migrant” as it were.
Although an Italian or Mexican or Chinese immigrant in the United States is, by virtue thereof, partially subject to the jurisdictions of both his parent state and of the United States. But the provision in question requires that persons be subject to the full or complete jurisdiction of the United States. That is, not subject, in full or in part, to any foreign power. Senator Trumbull explains:
The provision is that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to complete jurisdiction thereof.”... What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. (emphasis added)
Not owing allegiance to anybody else. This certainly includes tribal Indians and immigrants, legal and illegal alike.
That is all it can mean because the mere fact of migration to this country, or to any other for that matter, does not serve, in and of itself, to completely release such persons from political subjection to the jurisdiction of their native countries. After all, and as it applies on an individual basis, a decent respect to the opinions of mankind requires that they (immigrants to the U.S.) should declare the causes which impel them to the separation (from their native State), when in the course of human events it becomes necessary for these persons to dissolve the political bands which have connected them to their native People.
Since this specific class of persons -- Indians not taxed -- did owe allegiance to someone else, namely their tribes and tribal governments, these persons were to be included within the general exclusion prescribed by the subject to the jurisdiction thereof stipulation. For neither were such persons in general born or naturalized in the political United States proper, nor subject to its jurisdiction. To paraphrase one Senator on this particular topic, “we make treaties with them (Indians); it would be absurd for us to make treaties with ourselves.” His point was simply that treaties are political agreements made between sovereign governments, each government acting in behalf (or supposedly so) of its own citizens subject to its jurisdiction.
On the subject of the naturalization of Immigrants
There is, of course, a legal process which immigrants to the United States may apply for and pursue; a process which is mainly intended to establish full transferral of allegiance from their native country to the United States. That process is called “naturalization,” and involves several steps to complete. It is no more “racist” to require immigrants to conclude this process prior to being admitted to U.S. citizenship than it is racist to require Mr. Foner or anyone else to follow the necessary procedures to becoming an accredited professor of history at a renown University prior to his hiring. Then again, we have a legal process by which to transfer reserved powers from the States or the People to the United States, but its mere existence does not prevent the central government's usurping these powers nor the States or People tacitly surrendering them to that entity without a fight.
Professor Foner writes:
The amendment's authors didn't retreat in the face of blatant racism. When they wrote “all persons,” they meant it.
Not quite. “Blatant racism” aside for the moment, the overwhelming preponderance of the evidence clearly shows without a shadow of doubt that they meant all qualified persons, for the establishment of qualifications (as in the plural) directly follow the words “all persons.” We may read it thusly: “All persons who meet the following qualifications are citizens, that they be born or naturalized in the United States and subject to her jurisdiction.” For what possible purpose could it serve to add qualifications where no qualifications were meant to apply, or to add a second where one (birthplace alone) is sufficient? This provision does not say that all persons are citizens; it does not say that all persons born in the United States are citizens. The Professor Foners of the world may read the citizenship provisions of the fourteenth amendment any ol' way they wish to read them, that is their prerogative. But neither he nor anyone else is authorized to publicly and unilaterally assign to them any other meaning or application than the one assigned to them when they became, for all intents and purposes, the Supreme Law of the Land. If he and others wish to change the meaning of these provisions and the way they affect the body of the text of the U.S. Constitution, Article V of same prescribes a process by which this may be done legitimately.
But in any event, perhaps better would it have been had the framers of the fourteenth amendment carried the language of the Civil Rights Bill, word-for-word, over to the fourteenth amendment. Or, perhaps, they might have adopted Senator Trumbull's language above. Or even that of Senator Johnson:
Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power – for that, no doubt, is the meaning of the committee who have brought the matter before us – shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States. (emphasis added)
In other words, the children of immigrants were to be excluded by the second provision.
But, of course, it shouldn't be necessary to italicize the phrase above because that is what the actual language of the fourteenth amendment was understood to mean at the time it was adopted, and it is what any faithful reading of the provision reveals was its original meaning today.
And, of course, we may assert as well that these provisions have an opposite effect as regards non-citizens. Which is to say that a definition of U.S. citizenship, besides establishing what creates the character of citizen between himself and the United States, also establishes what creates the character of non-citizen between that person and the United States in the issue, and I know of no better way to distinguish between citizens and non-citizens than the fact of political subjection to a foreign jurisdiction regardless of one's actual place of birth. So that contrary to Professor Foner's assertion in his piece stating that,
There is no reason to believe the children of illegal immigrants are any different [insofar as they can be good citizens like anyone else].
there is every reason to believe that this class of persons can't be citizens, much less "good citizens," until the disability imposed upon them by the second provision of section one of the fourteenth amendment is removed by legitimate and legal process. Which is to say, until they become naturalized which precipitates admission to the rights of citizenship.
But one tires of this constant stating of personal opinion on a matter as though it were unmitigated fact. There is no reason to believe that the children of illegal immigrants can't be good citizens like everyone else? And how, pray tell, does Professor Foner draw that idiotic conclusion? Like many other “Americans” Professor Foner degrades the value of U.S. citizenship to virtual meaninglessness. While the U.S. dollar plummets in value due to hyper-inflation, so too does U.S. citizenship due to the advent of hyper-liberalism. But I suppose the adage holds true still that anything not earned is very often grossly undervalued by the person or persons possessing it.
But as is further revealed in the debate aforementioned, this section of the fourteenth amendment (the amendment to the amendment, as it were) having been taken directly from the Civil Rights Bill, was meant to mean precisely the same thing, though the language was altered in the former, per the committee that reported it:
I read now from the civil rights bill as it passed:
That all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens.
What did these words mean? They meant something; and their meaning as they are inserted in that act is the same meaning which will be given to them if they are inserted in the first section of this constitutional amendment.
Yes, one would certainly think that the meaning ascribed to these words in the civil rights bill would carry over with them to the fourteenth amendment, given that the language was taken from the civil rights bill itself. But we see, one hundred fifty years later, that that is no longer the case. The meaning generally assigned to these words now is laid down in the words of our scholarly professors and newspaper columnists across the fruited plain. And as long as we continue to allow them to assign their own meanings to the words which comprise these provisions, in spite of historical evidences contradicting them, they will continue to assert dogmatically that, in the words of Professor Foner, “when they said “all persons,” they meant it.” In actuality, of course, and as we've thoroughly established by now, what they meant was all qualified persons, or, persons not subject to a foreign jurisdiction, which excludes at least three distinct classes of persons comprising several millions of U.S. residents individually.
To whom, or to what classes of persons, then, does automatic birthright citizenship apply?
The fourteenth amendment establishes automatic birthright citizenship for the children of U.S. citizens, and onlyfor the children of U.S. citizens who are themselves subject to full U.S. jurisdiction, or, who owe their allegiances to none other than the United States. This includes non-alien persons, or foreigners by birth, who have completed the naturalization process, or, naturalized citizens.
This is because birth parents can only confer on their offspring that which they themselves possess at the time of giving birth. Namely, and in the case of immigrants, their subjection to the jurisdiction of a foreign government, or non-subjection to the jurisdiction of the United States, as it were. Whichever be the case, the key point to remember is that since immigrants (legal or illegal) are either subject to a foreign jurisdiction, and/or, not subject to full U.S. jurisdiction, they cannot automatically confer upon their offspring the second of these stipulations in spite of their having been born within the political and geographical boundaries of the United States.
To meet the requirements of the second provision, or, to become subject to U.S. jurisdiction, immigrants who retain the status of immigrant must successfully complete the naturalization process, subjecting themselves to the full jurisdiction of the United States/undoing their subjection to a foreign Power. Then, and only then, may their children, born in the United States, qualify for automatic birthright citizenship established by the fourteenth amendment. That's not what I say, it is what the plain language of the fourteenth amendment says. It is what the Civil Rights Bill, passed by the 39th Congress says. It is what the Senate debate concerning this provision reveals as we've shown above.
But our illustrious newspaper columnists would have it another way. And they're not about to allow some obscure constitutional stipulation that virtually no one knows about or cares about (and they want to keep it that way), to get in the way of their achieving their ultimate aim, which is the final overthrow of the subject to the jurisdiction thereof stipulation, and any connection it has to establishing U.S. citizenship. Some of them dismiss its importance, others omit it altogether as though it doesn't exist, as we've seen above. Both methods are as invalid as they are self-destructive and stupid.
The conclusion of the matter is this, newspaper columnists and the publications which print them, who advocate birthright citizenship for all persons born in the United States without further qualification in direct contradiction of the entirety of section one of the fourteenth amendment and the Supreme Law of the Land, are absolutely untrustworthy and enemies of the constitution, as written. They ignore or omit key constitutional passages, as well as all historical evidences which do not align with what their philosophy teaches them the constitution ought to say. If it ever occurs to them at all, they ignore the importance of a formal, constitutional transferral of authority from the States or the People to the United States, or vice versa as the case may warrant. Likewise do they ignore the importance of a formal transferral of allegiance from a foreign jurisdiction to that of the United States, her governing constitution and her people. They are more or less disingenuous, more or less unfaithful, more or less scam artists perpetrating a scam on an unsuspecting public. They are as honest as other men, and not more so. They are, in fact, traitors to be trusted, therefore, about as far as you can throw them. Which, in most cases, isn't very far.
On the enrollment at birth program
Though it has little to do with the principles involved with the discussion above, “enrollment at birth” does bear on the importance of the issue of the second citizenship provision of the fourteenth amendment. We must understand that the federal government knows what the fourteenth amendment says in actuality, as opposed to what our imminent Professors of History and newspaper columnists propose that it says. To successfully avoid the subject to U.S. jurisdiction provision, or to make an end-run around it, so to speak, the federal government uses its “Social Security” Administration to effectively and procedurally sidestep the provision.
Under current United States policy, children born in the United States to alien parents subject to a foreign jurisdiction, while unqualified for birthright citizenship by virtue of their parents' non-citizen status, have no need of so called “automatic birthright citizenship” in any event because they have it in effect.
Regardless of citizenship status, birth mothers are asked by hospital staffers who receive their instructions from on high, to fill out a form requesting for their child a birth certificate and enrollment into the federal Social Security program. At the moment birth mothers consent to enrolling their newborns into Social Security, either tacitly or actively, that child becomes, as far as the federal government is concerned, subject to the full jurisdiction of the United States, thus satisfying, to the collective mind of the federal government, the requirement of the second citizenship provision of the fourteenth amendment.
This is not the same thing as automatic birthright citizenship, which, as we established above, is reserved for the children of United States citizens, but it effectively, and for all intents and purposes, accomplishes the same thing. Since alien birth mothers cannot automatically transfer to their newborns U.S. jurisdiction since they cannot confer on the child what they themselves do not possess at the time of giving birth, they can (and do on a regular basis) subject them to U.S. jurisdiction with the help of the federal government, hospital staffers and enrollment at birth.
Whether or not “enrollment at birth” is constitutional, is another question in itself. Since the federal government is authorized to establish uniform rules of naturalization, but not authorized to control or regulate immigration to any State in this union by the constitution, my own opinion is that enrollment at birth is an illegitimate and unconstitutional procedure. But then again, I personally do not believe that Social Security itself is constitutional since no amendment to the constitution has yet to transfer authority from the States or the People to the United States concerning the so called “social security” of U.S. citizens. I know we have the general welfare clause in Article I, section 8, but the establishment of a general “social security” is stretching it quite a bit:
On every question of construction, carry ourselves back to the time when the constitution [or its amendments] was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
But in any event,...
once enrollment at birth is accomplished, then the rest of section one of the fourteenth amendment is deemed by the federal authority to automatically apply to the child enrolled and to his immediate family by extension. Hence, States may not make or enforce any laws which abridge the privileges or immunities of these citizens, nor may States deprive them of life, liberty or property without due process of law. And the Congress has authority to enforce these provisions by appropriate legislation, whatever “appropriate legislation” as to these persons and the stipulations applied to them is deemed to mean.
Hence, all of this hand wringing concerning birthright citizenship for the children of illegal immigrants is really just a moot point on both sides of the question, unless and until the federal enrollment at birth program ceases to exist, and/or, States and local communities begin to treat as mere acts of federal usurpation of powers not granted, federal control or regulation of immigration to this country.:
But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. -Alexander Hamilton, Federalist no. 33
Until that time, and not before that time, children born to U.S. citizen parents stand to gain no citizenship advantage over children born to alien parents via the former's entitlement to automatic birthright citizenship. In other words, and as it now stands, automatic birthright citizenship may just as well apply to American-born children of alien parents subject to a foreign jurisdiction. By the same token, automatic birthright citizenship may as well not apply exclusively to children born to citizen parents subject to full U.S. jurisdiction.
Concerning the issue of “Indians not taxed” being excluded from U.S. citizenship:
I have personally met up with some resistance to this particular question whenever I explain that “Indians not taxed” were originally excluded from U.S. citizenship by the provisions of the fourteenth amendment. While I understand that certain persons would be offended by this particular exclusion based on their understanding of U.S.-Indian relations, I must point out that there is no reason to be offended by it unless one thinks that U.S. citizenship is somehow superior to tribal sovereignty and the citizenship derived therefrom. I personally do not believe that this is the case, and for any number of reasons which I'll discuss in another essay.
Saturday, October 2, 2010
[Introductory note: The essay which follows was written in response to the growing and seemingly pervasive tendency in our nation to ignore the fundamental principles of our governing constitution and all laws made in pursuance thereof, or, the Supreme Law of the Land.