Friday, June 08, 2007

The 14th Amendment, Interpreted Poorly

A good deal of the national (and State) wealth is devoted to health and education of children who are citizens of the USA.

Thus, when the definition of "citizen" comes up in connection with "anchor babies," the usual suspects haul out the 14th Amendment (and SCOTUS decisions about its meaning) and make it perfectly clear that we are simply required to do what we do--after all, the babies were born in the USA.

Well, maybe.

Section 1 of the 14th Amendment (as proposed in 1866 and ratified in 1868) reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It explicitly referred to children born to U.S. citizens and those born to aliens lawfully in the U.S.

Why did the amendment’s sponsors insist on adding, “and subject to the jurisdiction thereof”?
For insight, consider the words of Sen. Jacob Howard, co-author of the amendment’s citizenship clause. In 1866, he wrote that the amendment “will not, of course, include persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States...”

By extension, then, it is fair to conclude that, in addition to the children of those legally in the U.S. under the above exclusion, this would apply to the children of those illegally in the U.S. —until the Supreme Court took up the question of the rights of illegal aliens to taxpayer services in 1982. In Plyler v. Doe, the
judicial activists concluded that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

But Plyler v. Doe is historically and legally inaccurate. In the context of
original intent, children born to those who have entered the U.S. illegally—those who are not citizens—are not “subject to the jurisdiction thereof.” One would hope, in the course of the current debate about immigration, that Congress and the courts would actually pay homage to the plain language of our Constitution.

Not much chance of that, though, especially when it’s not politically expedient.

Meanwhile, 12-20 million illegal aliens in the U.S. have hundreds of thousands of children, who are extended birthright citizenship—at an annual cost to taxpayers of between six and ten billion dollars.

On top of that, the “economic benefit” argument for “guest workers” is suffering a significant trade deficit. On average, the households of illegal aliens are paying about $9,000 in various taxes, and receiving about $30,000 in benefits—direct benefits, social services, public services and population based services like education.

For what it's worth, the Usual Suspects discount the language of Sen. Howard, because he was writing at the time of the "Yellow Peril" and was (by some accounts) covering his political ass. In addition, the Usual Suspects argue that the "subject to" phrase means to include all State jurisdictions--that is, that one cannot claim citizenship in (say) Nevada, and commit a crime in Florida, and use the Nevada citizenship to escape prosecution. (Or something like that.)

Well, OK.

But the phrase "subject to the jurisdiction thereof" can just as easily mean just what it says, and to conclude that a newborn infant is "subject" while his/her parents are flagrantly violating the Immigration Law is a bit of a stretch. It also implies that the infant can consciously make the decision to "be subject" to the jurisdiction thereof.

Not likely that's the case, either.

Of course, since I'm not versed in Legal Art -ification, what is obvious from common sense and plain language is not necessarily a "good" interpretation. After all, the Supremes are....smarter, no?

HT: Patriot Post email even date.


M.Z. Forrest said...

It may not be a good interpretation, but it is an authoritative interpretation. I won't get into a long winded debate over the language of the ammendment. I believe the language is poor. Personally, I would like the Constitution amended to reflect how you, and I, believe citizenship should be interpreted.

Dad29 said...

Well, that's not likely to happen.

It is possible, however, that another case will be brought which will remedy the defective "authority" presented by the Warren (or whoever) SCOTUS.

illusory tenant said...

In Plyler v. Doe, the judicial activists concluded that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

Far from being the "conclusion" of "judicial activists," the statement appears at the end of a footnote, and is credited to a treatise written in 1912.

The rest of the footnote deals with the "predominantly geographical sense" of "jurisdiction" as it appears in the Citizenship Clause, supported by other, 19th century Supreme Court precedent.

The footnote itself is appended to a discussion of an alleged tension between the Equal Protection and Due Process Clauses, a tension that the Plyler majority rejects.

[T]he Usual Suspects discount the language of Sen. Howard ...

If anyone is about to discount the extra-textual language of Jacob Howard, it would be conservative hero Justice Scalia, who abhors reliance on such commentary as a guide to interpretation.

Incidentally, those who still adhere to the position that the 14th Amendment does not make the Bill of Rights apply to the States would do well to steer clear of the contemporaneous statements of Sen. Howard.

Dad29 said...

Well, Atty. Illusory, (or F J Haydn, if you prefer,) the interpretation of plain English given in the decision is crap.

And frankly, it matters not that it was written by Illustrious Politicians With Degrees in Law.

It's crap.

I note that you did not bother to address the plain English of the 14th--and not even the decision itself.

I don't blame you. It's indefensible, except in the somewhat twisty minds of the Usual Suspects.

illusory tenant said...

It's crap. ... It's indefensible, except in the somewhat twisty minds of the Usual Suspects.

Then your judicial activist/Usual Suspect analysis applies to the entire Court, since the question of whether the schoolchildren were "within the jurisdiction" for the purposes of the Equal Protection Clause was not at issue in Plyler.

And in fact the dissenters (Burger, White, Rehnquist, and O'Connor) expressly conceded the point.

The disagreement was over the burden of proof imposed on Texas to demonstrate that its policy of denying a certain class of children access to public education comported with the requirements of the Equal Protection Clause.

In other words, everyone agreed that the children were "within the jurisdiction." But that isn't what Plyler was about.

Finally, Plyler was not a Citizenship Clause case, and your man Alexander is mistaking Jacob Howard's comments about "jurisdiction" in that Clause for the reference in the Equal Protection Clause.

Read Sec. 1 again and you'll see that the word appears twice, once in each of the two separate sentences.

The moral of the story? Treat The Conservative Journal of Record's legal commentaries with an especially heightened scrutiny (as did the Plyler majority treat the Texas policy).

Dad29 said...

If the 14th actually means that anyone born in this country is automatically a citizen thereof, it was poorly drafted.

But of course, then it ALSO means that children born to NON-citizens (e.g., French Embassy employees) are also citizens of the US, regardless of the wishes or intentions of either the parents or the child.

A sane interpretation is what P.P. argues for. That 'sanity' also happens to coincide with the plain English--that some persons born within the borders are NOT "subject to the jurisdiction thereof," because they are NOT born to citizens (or even citizen-track persons) thereof.

illusory tenant said...

[S]ome persons born within the borders are NOT "subject to the jurisdiction thereof."

How are you going to deport them then?

Dad29 said...

There are only a few thousand babies born-to-illegals in the US every year; I suspect that simply removing them and their mothers to their country of origin (after recovery from the birth) will suffice as a hint--the numbers will diminish rapidly over time.

That handles the newborns. As to the remainder, they should be covered by the Pence plan:

illusory tenant said...

I mean how are you going to deport them if they aren't "subject to the jurisdiction thereof"? Let's face it, you're not going to get from "all" to "some" without exempting the balance from the jurisdiction thereof.

So, how can you deport them if they're not subject to the jurisdiction? Plain English and all that.

Dad29 said...


When you grow up, stop back.

Dad29 said...

By the way, Illusory, I await your response to my observation that IF the Constitution and the Bill of Rights was written for the benefit of American citizens, then... can the 14th be interpreted to the detriment (at least financially) of those very same citizens?

If you can answer that one, perhaps a few beers ARE in order.