There is nothing constitutional about birthright citizenship

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“birthright Citizenship” as it is known is a lie created in the 1960’s (primarily by a push from Teddy Kennedy but mainly by immigration bureaucracy).  The intention was to facilitate changing the population as Teddy Kennedy knew they could not maintain the majority without adding new voters to the roles.  This began our long slide toward where we are going crazy on this issue – and shows why the democrats are so against the wall and for open borders.

 

People may not run across the border pop out a kid and declare it a citizen.  Citizenship must be granted by consent of the citizens.  The history below explains exactly how the constitution defends that right.

 

The key clause is known as the “Citizenship Clause” of the 14th amendment.  The first sentence is what must be understood.  It is “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.”

 

If there was any question on the meaning of the 14th amendment, here is directly from the congressional record.  The author of the citizenship clause explaining what it means on the floor of the U.S. Senate in 1866-

Mr. HOWARD: I now move to take up House joint resolution No. 127.

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

 

This was even more specifically added to by congress –

 

Under Sec. 1992 of U.S. Revised Statutes, the same Congress who
adopted, the 14th amendment added "ALL PERSONS BORN IN THE UNITED STATES AND NOT SUBJECT TO ANY FOREIGN POWER, EXCLUDING INDIANS NOT TAXED, ARE DECLARED TO BE CITIZENS OF THE UNITED STATES".

 

 

Later “Subject to the jurisdiction thereof” was even further legally defined

 

http://www.federalistblog.Us/2007/09/revisiting_subject_to_the_jurisdiction/

In the year 1873 the United States Attorney General ruled the word
“jurisdiction” under the Fourteenth Amendment to mean, which Justice
Gray would recognize in Elk v. Wilkins years later:

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

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

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

 

The original intent of the 14th amendment is absolutely clear.  It was solely intended to make sure that freed black slaves were treated as equal citizens under state and federal law.  It was never intended in any way to include any kind of foreign national legal or otherwise.

 

In 1898, the Supreme Court ruled in the Wong Kim Ark case that children of LEGAL foreign residents where citizens.  While some consider this the “landmark” case, I believe this was an incorrect ruling based on original intent as defined above and should be overturned as well.  The Amendment never intended ANY foreign national child to be granted citizenship.

 

Section 5 of the 14th Amendment states “The congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 

 

Congress has never made any law that specifies the legality of foreign nationals getting citizenship automatically.  Therefore, there should be no citizenship granted on children of foreign nationals legal or illegal.

 

Trump’s executive order is not changing the constitution at all.  IT is simply reinforcing what it says and forcing the legislature and the courts to recognize this and end the current practice. 

 

This action by itself has practically halted the caravan of invaders in its tracks.  Many are already going home or applying for citizenship in Mexico.

 

 

 

 

Comments

Ken Added Oct 31, 2018 - 3:22pm
Not meant to undermine your article Rusty, I just had worked to prepare a constitutional argument for it already and drilled more into the weeds
Liberal1 Added Oct 31, 2018 - 3:33pm
 
Argue with James Madison,
 
"that as they [aliens], owe, on the one hand, a temporary obedience, they are entitled, in return, to their [constitutional] protection and advantage."
Ken Added Oct 31, 2018 - 3:35pm
how about you give the entire quote, in context, where and when it was said, and not altering part of the text?
Liberal1 Added Oct 31, 2018 - 3:36pm
the U.S. Supreme Court ruled in Zadvydas v. Davis (2001) that "due process" of the 14th Amendment applies to all aliens in the United States whose presence maybe or is "unlawful, involuntary or transitory."
Yes, illegal aliens have constitutional rights
 
If part of the 14th Amendment applies to undocumented immigrants, then all of it does.
Ken Added Oct 31, 2018 - 3:51pm
illegal aliens DID NOT EVEN EXIST in 1866.  it wasn't until 9 years later in 1875 that immigration even became illegal under law.   It could not have applied to them.
Ken Added Oct 31, 2018 - 3:59pm
that the fact that aliens and foreign nationals have rights, doesn't grant them citizenship simply by virtue of being in America.  Neither the article nor the court decision were about the citizenship clause, they were simply determining whether rights in general apply to aliens.
Bill H. Added Oct 31, 2018 - 4:31pm
 
Ken - In reality, Christopher Columbus was an "illegal alien".
You know my stance on immigration along with my views on overpopulation.
Ken Added Oct 31, 2018 - 5:08pm
Actually Columbus wasn't - not only did he not try to settle here, but there was no COUNTRY at the time.  Not to mention, as I noted in my article, illigal immigration was not defined until 1875.
 
You would have to ask the Cherokee Nation what their immigration policy was, if they had one - but then, he never actually even came to America either.  He stayed in the caribbean and only touched the north american continent as he breifly traveled up the central american coast
FacePalm Added Oct 31, 2018 - 5:09pm
From what i've read recently, after the (new) 13th Amendment was ratified without objection(ended slavery or involuntary servitude unless convicted of a crime), it came to the attention of Northern legislators that Southern ones had NO intent to grant Citizenship to the freed slaves, or amend their Constitutions to authorize it.
 
This is when the northern legislators came up with a plan to make them Federal citizens(note the difference in capitalization), and as opposed to WHITE Citizens, would not have unalienable, God-given Rights, but exchange them for "privileges and immunities," instead.
 
Later, it apparently occurred to various legislators that this whole Federal citizen thing was a Good Idea, so they began to trick Americans into giving up their birthrights for the "privileges and immunities," to wit:
 
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
Sec. 552a. Records maintained on individuals
-STATUTE-
(a) Definitions. - For purposes of this section –
(13) the term ''Federal personnel'' means officers and employees of the Government of the United States, members of the uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits).


i've found a VERY good case for the 14th having NEVER been lawfully ratified, as well.
 
Here's a link to it.  Be advised - it is a quite long article, well-documented, annotated, and referenced.  It may have been intended as a legal brief, but AFAIK, no one has dared take up the Constitutionality question with SCOTUS, and they'd probably decline to hear it unless COMPELLED to do so - for they've built an amazingly Unconstitutional body of "law" based on that Unconstitutional foundation - so if they happen to honestly investigate and conform themselves to the Truth, they'll have to dismantle a HELLUVA LOTTA "laws," so they'd be unlikely to rule IAW the Truth, just "the law" as they've Unconstitutionally "interpreted" it.  (An arrogated power, btw; if one reads Article 3, they'll find the world "interpret" not among SCOTUS' delegated powers, and IAW the Preamble to the Bill of Rights, the taking of powers not delegated is usurpation(implied); the actual relevant wording is "In order to prevent misconstruction or abuse of it's powers..." etc.)
 
SCOTUS has been "misconstruing" their powers since nearly the foundation of the country.
Ken Added Oct 31, 2018 - 5:25pm
Marbury v. Madison where John Marshall basically proclaimed that the supreme court was the final arbiter of US law was the first (and one of the worst) overreaches of the SCOTUS.
FacePalm Added Oct 31, 2018 - 7:31pm
Yes, because SCOTUS uses an Unconstitutional measure, "precedent," as a basis for future decisions.
 
Here's how at least one of the F&F felt about that:
 
"It is proper to take alarm at the first experiment on our liberties.  We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution.  The freeman of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents.  They saw all the consequences in the principle, and they avoided the consequences by denying the principle."
-- James Madison(1751-1836), Father of the Constitution for the USA, 4th US President
Source: "A Memorial and Remonstrance", 1785: Works 1:163
 
Then, too, there's the pernicious and also Unconstitutional doctrine of "implied" powers, expressly forbidden them by the plain language of the Preamble to the Bill of Rights, which i think i've mentioned already..."misconstruction or abuse of it's powers" might help someone find it, should i be in error in that regard.
 
Nowadays, they also have employed another Unconstitutional measure of deciding cases: "Public Policy." 
 
Gee, i can't find the words "precedent," "implied powers" OR "Public Policy" anywhere in the Constitution - could it be, then, that they're *gasp* Unconstitutional?  T'would seem obvious, to me.
Cullen Kehoe Added Oct 31, 2018 - 8:06pm
Implied powers (and general welfare clause) became blank checks to the federal government to do anything under FDR.
 
He threatened to destroy the Supreme Court (by changing the constitution to allow him to add limitless judges) if they struck down some of his new federal agencies. And the Supreme Court suddenly found that the constitution did grant the federal government power to anything it wanted to do. ("switch in time that saved nine")
Cullen Kehoe Added Oct 31, 2018 - 8:09pm
Judicial Procedures Reform Bill of 1937 
 
FDR wanted to be able to add 6 more justices to the Supreme Court who were all loyal to him and would approve whatever he wanted to do. 
Ken Added Oct 31, 2018 - 8:23pm


 


Implied powers (and general welfare clause) became blank checks to the federal government to do anything under FDR.
 
There is no "general welfare" clause in the constitution.  That is simply mentioned in the preamble.  The preamble has no legal basis.  It is simply an overview of the specifics to come that will define the "theme" presented in the preamble.  The only "general welfare" that the federal government may actually promote is what is specifically enumerated in the articles.  That is why most of what FDR did including the big entitlement programs was unconstitutional.
 
He threatened to destroy the Supreme Court (by changing the constitution to allow him to add limitless judges) if they struck down some of his new federal agencies. And the Supreme Court suddenly found that the constitution did grant the federal government power to anything it wanted to do. ("switch in time that saved nine")
 
As you noted in the second half, he tried to pass a law.  He didn't need to change the constitution.  The constitution grants congress the right to set the federal judiciary however they want.  They can add or remove district courts, appellate courts, or the supreme court, they can change district jurisdictions, they can define the number of judges (Obama couldn't flip DC - District 6 - so congress added judges in a bill to the court to give it the democrat majority)
 
As much as FDR tried to do, it is extremely fortunate that congress didn't take that extra step to stack the supreme court or we would likely be an progressive democrat autocracy at this point, and not still fighting for our values.  In 4 terms, FDR still managed to pack it with progressive activist judges that waved through many of his programs and actions, not the least of which was somehow finding a way to find Koramatsu (putting people in concentration camps for no other reason than racial makeup) constitutional.
 
It caused incredible damage to our republic as did his "New Deal" by blowing the size and scope of the federal government so out of proportion with what it was constitutionally permitted to do.

FacePalm Added Oct 31, 2018 - 10:12pm
Ken-
You're in error on this point.
See Article I, Section 8, clause 1, which reads:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
 
That said, and despite the large-type opening of the Preamble, "We the People," multiple courts have ruled that the People are not parties to the Constitution.
The States are.
And the general welfare clause was meant to apply to THEM, not to any American Citizen.
 
Hence the problems i have with the arrogation of powers not delegated, aka "Usurpation," the aforementioned High Crime.
 
Did you ever read "Davy Crockett Gets a Constitutional Lesson"?  i've posted the link 3x, iirc, so far - but could again.
 
The short story is that when Davy was stumping for re-election, he met a man named Horatio Bunce who said he wouldn't vote for Davy again, because he'd voted in favor of helping out some people whose homes had burned down by donating out of the Treasury, when that Power was never delegated...as well as his subsequent realization and repeated speeches voting against any such appropriations in future.
 
If you're interested, i'll post the link again; IMO, every American should read and comprehend it, then agree with it...but...
 
"Can the real Constitution be restored? Probably not.  Too many Americans depend on government money under programs the Constitution doesn't authorize, and money talks with an eloquence Shakespeare could only envy.  Ignorant people don't understand The Federalist Papers, but they understand government checks with their names on them."
-- Joseph Sobran(1946- ) Columnist
 
Ken Added Oct 31, 2018 - 10:45pm
FP - thanks for the correction, I get so focused on those who look at "general welfare" from the preamble i forget about the other time it is mentioned, but it is still only what is enumerated, it is not one of those ambiguous catch all "good and plenty" type clauses that give government authority to do whatever they feel is for the "general welfare".  That is implicitly tied to "general defense" as that clause is specifically about what the taxes should be used for.  Since it is specifically enumerating how the military provides the "general welfare", I often forget about that other mention.
Ken Added Oct 31, 2018 - 10:53pm
I know much of the story of Davy, but I haven't read that particular piece.
 
It isn't that so many people depend on federal monies, it is that so many people are no longer even taught basic civics.  I spent hours last night trying to convince 3-4 trolls that the specific intent/original intent of the first sentence of the first sentence of the first sentence of the citizenship clause of the 14th amendment was relevant, and that there was no need to put it in specific writing in the sentence because it was clearly understood EXACTLY what it meant at the time.
 
It is frustrating that some people are so stuck in their opinions, they don't care at all about the facts.
 
That is why I built this article brick by brick showing intent.
 
I am not sure it is one of the most coherent articles I have written because I tried to put it together with facts fairly quickly and it probably doesn't flow well from point to point, but hopefully it points out exactly what was intended with the 14th amendment.
 
L1 seemed to have issues at first, but since I pointed out his argument didn't cover the very first sentence and missed the entire point he has left the discussion - could just be busy, or could have realized that his argument holds no weight.  We shall see.
 
Maybe I got too much into the weeds with this one (or people are still reading and digesting) because there hasn't been much discussion about the facts and points I made.
 
It will be interesting to see where it goes.
FacePalm Added Oct 31, 2018 - 11:55pm
Ken-
i appreciate both your humility and your frustration, having experienced much of the latter, myself, esp. in re: the absolutely clear meaning of "natural born" AT THE TIME (and prior to the ratification of the Constitution, and subsequent, and at repeated intervals both pre-and-post 14th Amendment via SCOTUS decisions).
 
But at the risk of redundancy, i'll post the link again; you may glean some insights from it.
 
Davy Crockett Gets a Constitutional Lesson
 
But as to the specific wording of the first sentence of the 14th, if indeed the 14th was never lawfully(Constitutionally) ratified IAW the provisions of Article 5, it would be entirely moot/irrelevant, as the whole thing was Unconstitutional ab initio.
 
But IME, simply mentioning that the 14th may not have been ratified by 3/4's of the States at the time often triggers quite emotional, not rational, responses. 
 
What happened(short story) was that when the Southern legislatures refused to ratify the 14th, having realized that it would create a whole new class of citizens, that Congress, under the Reconstruction Acts, simply REMOVED all the sitting legislatures of those Southern States, then Unconstitutionally APPOINTED legislators to take their places who WOULD vote in favor.   When some of the Northern States heard what had been done to the Southern Legislatures, they WITHDREW their ratifications - only to have that Congress "not recognize" the withdrawals of those State's ratifications - and even after ALL THIS SKULLDUGGERY, they STILL didn't meet the 3/4's threshold, so it was just "pronounced" as being passed, by fiat, thus making the 14th not in compliance with Article 5, thus making it Unconstitutional(but this is the REALLY short story).
Ken Added Nov 1, 2018 - 12:14am
FP - you really should stop cutting corners, posting stuff that must may have no idea what you are saying.  I and probably most others have no idea what you mean be IAW - I am aware? IME?  and F&F for founding fathers is huh?  Only learning by virtue of many posts, you assume folks know your shorthand that isn't remotely standard.  If you are going to post lengthy posts that are descriptive, what are a few more characters to be clear?
 
Who ever mentioned that ratifying the 14th amendment wasn't legitimate and ratified by 3/4 of states?  I don't understand that argument at all.  I certainly never did. 
 
Your argument has absolutely no basis in fact.  It was part of the requirement for the southern states to re-enter the union - including abolishing slavery with the 13th amendment.
 
Either way, whether it is valid or not, which you are the first person who I have ever heard state that it is unconstitutional and should not be an amendment, my point by point argument states how it exactly is all about ex-slaves equality and nothing about immigration based on their own words.
 
That said, on to your post.  I will try and look at that link tomorrow.  Likely a story I have heard, but it isn't ringing an immediate bell.
FacePalm Added Nov 1, 2018 - 12:35am
Sorry: IAW=In Accordance With; iirc= If I Recall Correctly; IME=In My Experience; FMO=From My Observation; F&F= Founders and Framers.  i'll modify my posting style for the sake of clarity.
 
And you're in error in re: the 14th being conditional to re-enter the Union, as well.  Lincoln formally welcomed all the former States into the Union at the conclusion of hostilities, and they all ratified the 13th long prior(relatively) to the 14th, didn't they, which they could hardly have done had they NOT been States in the Union.  This is all well-explained in the link to the article about the Unconstitutionality of the 14th, but as noted in the post with the link, it's a LONG article.
Ken Added Nov 1, 2018 - 11:43am
You are right the 13th was conditional re-enter the union not the 14th,  I got ahead of myself
FacePalm Added Nov 1, 2018 - 12:29pm
IIRC, the "Reconstruction Acts" were sandwiched between the passage of the 13th(lawful) and the "passage" of the 14th(unlawful), as well - which Acts were a defacto occupation of Southern states by Northern troops.  Totally unconstitutional, but the likely origin of "damn yankees," especially after Sherman's "burn, steal and rape" March to the Sea campaign during the war...for even after those criminal acts, the military occupation subsequent to the South's re-admittance to the Union(which happened prior to the 13th, otherwise they couldn't have voted on it) was very much resented and hated.
 
Just wanted to let you know that i replied to you on the deletin' dog's comments section, to inform you that it takes a 2/3'rds vote to get a Constitutional Amendment in the pipes, but it takes 3/4's of State legislatures to lawfully ratify it, as written in Article 5.  i also informed the OP that i wasn't talking to him, and to "delete away, you petty tyrant."  Whaddaya wanna bet that it's gone w/in an hour - yours, too.
Bob Added Nov 1, 2018 - 12:30pm
I agree with your intent on the 14th amendment. So going forward, what is the proposal on how to alleviate this situation? I'm interested in hearing alternatives to birthright standards. 
Ken Added Nov 1, 2018 - 1:11pm
Bob - while it is unrealistic (unfortunately) to revoke citizenship already granted, no citizenship should be granted to foreign nationals (legal or illegal) just because they are born in the US.  They are citizens of the country their parents are citizens of
Leroy Added Nov 1, 2018 - 1:50pm
Thanks for clearing that up for me, Ken.  Does it apply to green card holders?
Ken Added Nov 1, 2018 - 2:09pm
The Supreme court ruled in 1898 Wong Kim Ark case that children of legal residents should receive citizenship, but I believe this is a faulty interpretation and that precedent should be overturned.  The original intent of the amendment clearly states that no foreigners or aliens are to be included in the citizenship clause.
 
Unless they are natural citizens or naturalized, their children should not become citizens.  There is nothing in the constitution that defines that.  There is also nothing that specifically prevents it, but that is what section 5 is for.  It gives congress the authority to pass a law authorizing it or not.  To date, congress has not passed any law stating such citizenship rights, therefore none should be granted.
Dino Manalis Added Nov 1, 2018 - 2:32pm
 Instead of debating constitutionality, which is controversial, Trump should focus on the importance of legal residency in America for immigrants to move up in the U.S., including become citizens if they wish, citizenship is a personal choice for immigrants.
Gerrilea Added Nov 1, 2018 - 2:34pm
Ken--- Great article and clarifications.  We all need a little refresher course now and again.
 
You've established the intent and interpretations up until the 1998 decision.  That decision, as it stands, quite literally shreds everything previously.  With the majority now on the SC, the case should be revisited, pronto.
 
Ken Added Nov 1, 2018 - 2:45pm
1898, not 1998, but yes, Gerri, I agree.  I wish this had happened decades ago once the bureaucracy started granting birthright citizenship with no authority to do so.  It wasn't as much of a problem at that time as there wasn't the flood there is today.  Reagan was noted as saying after his presidency that granting amnesty was the worst thing he did as president and he never should have agreed to it.  The reason CA is a one party state can literally be traced to that decision.  Tip O'Neal GUARANTEED a wall in return for amnesty - but as always, the same promise never fulfilled.
 
I can find absolutely no justification in the ruling for why they ruled as they did as the congressional record on original intent is crystal clear.  Imagine if they had ruled the opposite where we would be today with immigration questions....
 
I hope Trump actually creates this executive order he has been tossing around (he hasn't actually done it, he was just asked about it and responded that he is "considering" it.  It will be challenged instantaneously and force a supreme court ruling, likely through a fast track appeal.
Lindsay Wheeler Added Nov 1, 2018 - 3:34pm
FacePalm, I may have been too harsh on you on another thread but a quick read of your link on the unconstitutionality of the 14th seems to be plausible. (Later on, I will read it more carefully.)
 
To help your case FacePalm on the unconstitutionality of actions after the Civil War, let us remember that Abraham Lincoln was an avid reader of Karl Marx. The NY Herald Newspaper published some 400 articles by Marx and Engels and many more not signed!  Abraham Lincoln was part of Red Republican movement that created the Republican Party. The name "Republican" had nothing to do with American repubicanism---but with the Radical revolutionaries in Europe that called themselves Red republicans! Lincoln met and talked with some German ex-revolutionaries from the failed Marxist upheaval of 1848. 
 
The Abolitionist movement was/is Gnostic. They were heretical Christians. Not orthodox Christians. They had a great hatred of the South. That means their laws are not legal. What they forced on the South was illegitimate. Abolitionism married with Red Republicanism was also a subversion of America. Lincoln fundamentally changed America. 
 
 
John Minehan Added Nov 1, 2018 - 6:10pm
"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
 
It looks like the phrase "aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States" is a parenthetical used to define the word "foreigner."
 
On one hand, if this were ambiguous, then there would be room for a legitimate Executive Order to clarify this for the Executive Branch.
 
On the other hand, If there is legislation defining this, it would have to be changed by legislation rather than an Executive Order that can only define, clarify and set enforcement priorities for existing legislation rather than make new law or repeal existing law. 
John Minehan Added Nov 1, 2018 - 6:19pm
"The Supreme court ruled in 1898 Wong Kim Ark (sic) case that children of legal residents should receive citizenship, but I believe this is a faulty interpretation and that precedent should be overturned."
 
Actually, the Wong Kim Ark holding does not conflict with your view.
 
Chinese contract laborers were present in the US under labor contracts and subject to treaties between the USG and the then-Empire of China and subject to US legislation (the Chinese Exclusion Act) that made Chinese laborers subject to the Law of the US but specifically barred the laborers themselves (but not their US born children) from citizenship,   
John Minehan Added Nov 1, 2018 - 6:33pm
I think the concept of children of  foreign nationals here on a transient basis having birthright citizenship was the common understanding long before Ted Kennedy.  I first came across the concept in a 1956 Science Fiction story I read in 1976.
 
If it is something that is a function of a statute, I think it will need to be changed by a statute. 
 
Another thing I am not sure of (without doing a lot of research no one is paying me for) is if such a proposed  interpretation would not be a violation of the Ex Post Facto Clause in the Constitution, making something criminal after the fact. At minimum, it creates issues with people's reasonable reliance on the current state of the law.
 
Finally, a good argument for Pres. Trump's position (which originalists will hate, even though it supports their position) is that what Trump is proposing is the general trend both in international law generally and is common law jurisdictions (England and Wales, specifically).  Only about 30 nations out of about 194 have birthright citizenship like the US . . . and that number is decreasing.
 
 
Thomas Sutrina Added Nov 1, 2018 - 6:41pm
Ken, what I remember about Wong Kim Ark was that they were not illegal aliens.   I looked up the case in Wikipedia. "United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a United States Supreme Court case in which the Court ruled 6–2 that a child born in the United States, of parents of Chinese nationality, who at the time had a permanent domicile and residence in the United States and were carrying on business there but not as employees of the Chinese government, automatically became a U.S. citizen."   Your opening article define is in error.   Thus Ken the standing precedent case laws is the Elk v. Wilkins, 112 U.S. 94 (1884),  which states, (ref wikipedia) "Thus, born a member of an Indian tribe, even on American soil, Elk could not meet the allegiance test of the jurisdictional phrase because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, and not to the United States. The Court held Elk was not “subject to the jurisdiction” of the United States at birth. “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”     Congress has the power to regulate immigration and thus citizenship.  Since American Indians had not actual functioning government, army or local law enforcement without permission of the Federal Government  the allegiance to the tribe is hollow.  Thus congress recognized this with the Indian Citizenship Act of 1924. 
 
Illegal aliens have functioning native governments which they are recognized and have by choice of by force allegiance to.  The marchers present the native nations flag as symbols of this allegiance.  Thus like Elk they are not completely subject to the jurisdiction of the United States. 
 
Ken Added Nov 1, 2018 - 6:53pm
Chinese contract laborers were present in the US under labor contracts and subject to treaties between the USG and the then-Empire of China and subject to US legislation (the Chinese Exclusion Act) that made Chinese laborers subject to the Law of the US but specifically barred the laborers themselves (but not their US born children) from citizenship,   
 
Interesting, I was unaware of that fact, thanks.  That explains what seemed like a completely upside-down ruling
 
I think the concept of children of  foreign nationals here on a transient basis having birthright citizenship was the common understanding long before Ted Kennedy.
 
That is the earliest it has been able to be documented as actually being used in the US
 
Another thing I am not sure of (without doing a lot of research no one is paying me for) is if such a proposed  interpretation would not be a violation of the Ex Post Facto Clause in the Constitution, making something criminal after the fact.
 
That is why, while I think it should be revoked, I don't believe it is practical to make it retroactive - especially as there is no constitutional mechanism for revoking citizenship.  It certainly can be said from date of signing the EO on no one born in the U.S. without at least one citizen parent shall be a citizen unless they are legally naturalized.
 
Or whatever language is legally making that point.
 
Thanks for your thoughts, John, always nice when the lawyer tells me I am interpreting reasonably.
Ken Added Nov 1, 2018 - 6:59pm
TS - I specifically stated in my article that Wong was a legal immigrant and also cited Elk prior explaining how it fit in.
 
According to the authors of the amendment, whether here legally or illegally, however foreign nationals are not eligible for the citizenship clause
Thomas Sutrina Added Nov 1, 2018 - 7:00pm
Ken I scanned the article and didn't find absolute proof that the family was in America with permission of the government.  That is came to America to work and that the government gave permission,  thus the phase "had a permanent domicile and residence in the United States."   The family did not have a defined period in which they were to leave.  Such as a job to build a section of the rail road and then the employer would no longer need them so they were required to return to the native country.
 
 A person that enters the country illegally and has illegal document that he uses to get work.  Or the employers knowingly employs him dos not meet the residence requirement.  Also a person visiting the country is assumed to leave after the reason given for being here.  Permanent means no end time specified.  Thus they could live out the rest of there lives, my grandmother had such permission, was a permanent resident.
Ken Added Nov 1, 2018 - 7:05pm
the 14th amendment was created solely and wholly to guarantee that freed slaves received all the rights any other "citizen" of that state or nationally would get
Ken Added Nov 1, 2018 - 7:47pm
TS - I stated The Supreme court ruled in 1898 Wong Kim Ark case that children of legal residents should receive citizenship
 
I guess I assumed that it would be inferred that Wong was a legal resident as the decision was in his favor.
 
Aside from the treaty I was unaware of that JM pointed out, I still believe that the 14th amendment specifically was intended to prevent foreigners, permanent residents or otherwise.  There was no such thing as illegal immigration in 1866, that didn't come about until 1875.  In 1898 Wong would have had a differential to come in legally or illegally, in 1866 there was no distinction.  That is important, however, I believe it is irrelevant.
 
The clear intention of the amendment is solely to assist ex-slaves and specifically excludes foreigners, no matter what kind of residency they are allowed.
FacePalm Added Nov 1, 2018 - 8:28pm
John Minehan-
As an aside, does the ex post facto law work the other way, as well?  That is, if an individual or entity committed a crime at date X, can a law be made at later date Y to retroactively clear them of what was a crime at the time?
 
(i'm thinking of private corporations that illegally turned client info over to the Shrub's maladministration.)
FacePalm Added Nov 1, 2018 - 8:29pm
Lindsay-
i think i've already gone too far off-topic for Ken's thread, so i'll let your statements go unremarked-upon here.
Ken Added Nov 1, 2018 - 8:58pm
FP - lol, I remarked to Lindsay as well, then decided to delete  it for similar reasons...What could I really add to that one?
 
As far as your question for JM - I am fairly certain you can't make a law that retroactively harms someone.  You can grandfather someone in to a law that makes them not required to meet it if certain preconditions are met - such as banning guns unless you already own gun as of date x/x/xx
 
If that were the case, Dems when they had full control of congress and the presidency could have made brutal laws affecting any who had opposed them....
 
Jeff Jackson Added Nov 1, 2018 - 10:28pm
The Constitution recognizes slaves as four fifths of a person. The 14th Amendment granted them full citizenship. The intention was clear given the context of the amendment, which was just after the Civil War and was the correction to the four fifths declaration. Additionally, at that time, the U.S. was looking to expand its population. Changing the amendment would be difficult, especially with all the Dems wanting more voters for themselves.
FacePalm Added Nov 1, 2018 - 10:49pm
JJ_
3/5's of a person.
14th created Federal citizens w/o the Unalienable Rights America was founded upon(see DoI).  14th Amendment citizens have "privileges and immunities."
 
The discussion is about whether or not the "subject to the jurisdiction of" portion of the 14th can invalidate "anchor babies," e.g. pregnant Chinese women who come here "on vacation" for a month or so, give birth to a 14th Amendment citizen, then take the child home to be indoctrinated fully as a 5th columnist, then come back to the US and not only vote, but be the key link in an "immigration chain" to bring God knows HOW many relatives over.
 
Or any country, for that matter, but China is by far the greatest danger to America's Constitutional Republic, IMO.
Ken Added Nov 1, 2018 - 10:49pm
Jeff - let me help your civics understanding and constitutional understanding.  You post simply doesn't understand that entire piece of the constitution.
 
The Constitution recognizes slaves as four fifths of a person.
 
 
You are actually thinking of the 3/5ths compromise, not 4/5.  And it didn't recognize them as 3/5ths of a person.  It was actually ANTI-Slavery.
 
The North knew that they must create a union or they would be picked off by foreign interests.  They also knew that the south would never abandon slavery.  They had to come up with a way to resolve this dilemma so they came up with the 3/5ths compromise.  This was "As far as census counting goes for representation in congress a slave will only count as 3/5ths of a person".  It was nothing dehumanizing or racist, but actually an attempt to limit the power of the south in the new federal congress.  The south wanted slaves to count as 1 person for census purposes, the North 0 - this was to determine how many members would serve in the house of representative.  Slaves could not vote and could not offer their opinion, yet the south wanted to count them for representation.
 
If they had done this, the south would have dominated the house of representatives in congress as by the time of the civil war there were about 1.2 million slaves (up from 300,000 or so at the time of signing the constitution - I have posted the numbers before, too lazy to look it up again now).  The compromise made the south willing to sign the Constitution and the union could be formed.
 
The 14th amendment had nothing to do with the 3/5 compromise, nor did it "correct" it.  It was wholly and entirely based on guaranteeing ex-slaves were not denied full rights as citizens of both the states and the nation.
 
If you read my article in its entirety, you will see there is no need to change the amendment as immigration had nothing to do with the amendment.  that is the entire point.
Ken Added Nov 1, 2018 - 11:24pm
If you want to know how the founders felt about slavery, just curious have you ever seen this?
 
he has waged cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the christian king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.
 
This was included in the first draft by Jefferson of the Declaration of Independence.  It was pulled out because they needed support of the southern states, and that would have been terribly received.
 
Of all the grievances against King George - all of which were a single sentence, the rant against forced slavery by the King on the colonies was a full paragraph.
 
The All Caps parts were not made by me - that is exactly how Jefferson wrote it.  They clearly wanted "All MAN created equal" - and no that wasn't gender specific as women voted in colonial times.
FacePalm Added Nov 1, 2018 - 11:57pm
Ken-
Thought you might enjoy this.  i found it on Trump's twitter feed, and it's entitled something like "Harry Reid before he went insane."  It IS on-point to this thread, and lasts less than a min.
 
Thanks for that citation of Jefferson's, and the explanation for why it was not adopted; even though Jefferson was a slave owner, this passage makes it clear that he opposed it.  Best i can recall, i never read it before, so i'll be saving it to my collection of citations soon.  Is there a typo in "might want no fact of distinguished die," or can you explain what he means here?
 
But for some - especially extremists on the left - the fact that he owned slaves would be enough to invalidate EVERYTHING ELSE he did, or said, or wrote, AND to obliterate not only his name, but everything associated with him, from American history. 
 
Personally, i think this "hate America" nonsense is the ChiCom's version of a "cultural revolution, American-style," where their useful idiot army tears down the foundations of our country, just like they did during Mao's revolution - then replace all that was "old" with the New Tyranny.  (but, off topic)
Mircea Negres Added Nov 2, 2018 - 1:46am

Must say I had no idea what the 14th Amendment was originally intended for, though I knew children born in the US were automatically given citizenship, as they are in South Africa. It would be interesting to find out if those who had US citizenship by virtue of birth in the country but resided somewhere else were ever drafted in the military for any conflict between WW1 and Vietnam- and whether they served or refused to do so. As for what's happening in the US, I think the problems caused by massive influx of illegal immigrants have gone on for too long and need to be addressed as a matter of urgency given the impact they have on US sovereignty, crime situation and national security, no matter how little I think Donald Trump is suited to the role of president. 
 
Thomas Sutrina Added Nov 2, 2018 - 8:00am
Ken, the reason for  "United States v. Wong Kim Ark, 169 U.S. 649 (1898), was the Chinese Exclusion Act of 1882(nickname), a famine was occurring in China at the time so the number of Chinese coming to America was exploding.  You are correct that up until the exclusion act all Chinese that came to America were accepted by the nation, legal residents.   American Indians were not defeated until after the Civil War.  Reservations is a clear indication that they were not considered legal residents.
 
The distinctions is significant.  Congress that controls immigration, sets the rule for being welcome, legal residents, thus there is a distinction.   "Illegal immigrants" is that distinction given a name.  
Ken Added Nov 2, 2018 - 12:28pm
FP - of all the times I have pointed out the original text, you are the first one that has picked up on that conundrum.  There has actually been a lot of discussion about what exactly that means, and if you think of die as a noun rather than a verb it makes more sense.  Here is a discussion of interpreting it that makes plausible sense
 
https://english.stackexchange.com/questions/335641/might-want-no-fact-of-distinguished-die-grammatical-deconstruction-and-meani
 
As far as Jefferson owning slaves, yes he did, and he was required to by Virginia state law as he was always in debt he could never do much with them.  In founding the country he famously is quoted “I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.”
 
He was conflicted his entire life because he owned them but knew that it was wrong, and as you see by the first draft of the DoI, he was passionately against slavery.
Ken Added Nov 2, 2018 - 12:31pm
It would be interesting to find out if those who had US citizenship by virtue of birth in the country but resided somewhere else were ever drafted in the military for any conflict between WW1 and Vietnam- and whether they served or refused to do so.
 
As far as I know now and then, every citizen upon turning 18 is still required to sign up for selective service even though there is no draft in place currently. In WW1 or WW2 it would be a rarity to have a citizen born abroad, however, as travel was not like it is today.
John Minehan Added Nov 2, 2018 - 3:40pm


"In WW1 or WW2 it would be a rarity to have a citizen born abroad, however, as travel was not like it is today."
 
Interesting bit of trivia: Patrick McGoohan, of The Prisoner and Secret Agent/Danger Man fame, was born in Ireland in 1928 of US Citizen Parents. 
 
The fact that McGoohan lived in the US, Ireland and England growing up may be why his John Drake Character was sometimes described as an Irish American, and sometimes as an Irish (Eire) national and sometimes as a British Subject originally from Eire.  (It might also account for his somewhat unusual accent.)


 
John Minehan Added Nov 2, 2018 - 3:43pm
Also, even when US citizenship was hard to come by, it was not unusual for people to become US citizens and then go home.  McGoohan's parents are one example and at least one of the German "Enemy Combatant" Saboteurs is another.  
Thomas Sutrina Added Nov 2, 2018 - 7:43pm
Ken, the Virginia state changed the law after Washington use a loop hole to free his slaves at his death.   Thomas Jefferson could have sold his slaves.  The state prevented him from setting slaves free so long as he had debt.  the slave were collateral for those holding the debt notes.  The state I am sure prevented him from giving away his land or any other significant asset for the same reason.  
 
Jefferson was not that conflicted since he when against the precedent set in the Northwest territory from the Confederation. no slavery.  The majority of the Louisiana territory extended above the boundary line of the Northwest territory.  So climate was not an excuse.   Basically Jefferson needed the votes to complete the purchase and for that he allowed slavery.  Not that conflicted.
 
Ken, as a college student during the Vietnam war I absolutely know that people that were drafted went to Canada.  Also some people left before they were drafted.   Finally if you had a low draft number it was more likely to go to Canada.  So when your number came up they were on the list of their draft board.  I can not believe the notice was not sent to the residence listed.  
Ken Added Nov 2, 2018 - 10:58pm
TS - I specifically didn't mention Vietnam in my comment and never said people didn't flee the draft - I talked about people in WW1 or WW2 that were currently living abroad - as the question was posed.
 
Jefferson stated that since he couldn't free the slaves, he wouldn't sell them because he couldn't guarantee how they would be treated by another owner.  He actually treated them like family, taught them to read and write and educated them.  I believe I have read that they were with him on his death bed in appreciation for what he had done for them.
 
I have never delved into the specifics of the Louisiana Purchase, so I can't comment on motives or needs involved in what happened there without a good bit of research.
Thomas Sutrina Added Nov 3, 2018 - 7:33am
The attitude of those of draft age were different during WWI and WWII then Vietnam.  My guess is that like in Vietnam the draft board had no idea where a person resided.  So if they were registered in their district they received a letter.
 
One plus one is two, Louisiana Purchasing had to pass Congress so it makes sense that Jefferson needed more votes and opening the door to slavery is the way he could get the needed votes.  Logic.  He also passed a bill that prevented the importation of slaves.  But by then sufficient slaves were already in America to grow their own. 
Thomas Sutrina Added Nov 3, 2018 - 12:37pm
State earlier Wong Kim Ark and Elk  in these parts of this string (John Minehan Added Nov 1, 2018 - 6:19pm, me Nov 1, 2018 - 6:41pm,  Ken Added Nov 1, 2018 - 7:47pm,  me Nov 2, 2018 - 8:00am etc.)  Where US vs Wong Kim Ark is the supreme court case law often cited I believe by socialist, Democrats.  Which this article cited below shows doesn't apply.  On the other hand Elk vs Wilkins does apply to citizenship of a baby born to a person without permanent residence granted by Congress legislation.   Which this article cited below shows does apply.  
 
https://www.dailysignal.com/2018/10/30/birthright-citizenship-a-fundamental-misunderstanding-of-the-14th-amendment/
Ken Added Nov 5, 2018 - 11:45pm
On the other hand Elk vs Wilkins does apply to citizenship of a baby born to a person without permanent residence granted by Congress legislation.
 
And yet that had nothing to do with the 14th amendment, it had to do with a specific treaty that JM mentioned so it should NOT be considered precedent
Stone-Eater Added Nov 7, 2018 - 5:02am
In Switzerland it's as follows: When a Swiss person gets a child (with a foreigner), that child is automatically Swiss, no matter where it's born. So there is no birthright IN the country itself, since when two foreigners get a kid IN Switzerland, that child does not become Swiss but can be naturalized at the age of 18.