A Peculiar Relation
September 29, 2011 1 Comment
“a peculiar relation to the national government
-UNKNOWN TO THE COMMON LAW”
“Quotes from the Supreme Court citizenship case of Wong Kim Ark, 1898 The courts remarks included:
The real object of the 14th amendment of the constitution [defining U.S. citizenship], in qualifying the words “all persons born in the United States” by the addition of “and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country…”
This paragraph includes a statement that is an invaluable aid to grasping a fact that is easily overlooked by those with a strict allegiance to the legal consensus status quo, and that is the fact that even assumed-to-be fundamental principles are not written in stone, but are molded to accommodate reality. The statement was written in regard to Native Americans, a group that didn’t fit into the accepted principles of assigning citizenship since they had a “peculiar relation to the national government, unknown to the common law”. It was a situation for which there was no “rule book” so they had to adjust and improvise to come-up with a workable position for the government. That was an unknown situation then, and unknown situations haven’t disappear over time, but have increased.
When the Constitution was written there was no such thing as motorized trans-border transportation or migration. There was no such thing as masses of foreign humans willing to sacrifice almost everything in order to cross the borders of the 13 States to be able to work in the new United States. There was no such thing as huge flying machines that can transport humans through the air and across a continent or an ocean, -carrying foreign humans who would be permitted to visit the United States is vast numbers. It’s safe to say that such situations were also “unknown to the common law”.
But now, instead of births to foreign invaders occupying our national territory standing out as “exceptions”, instead we have the totally unexpected and unknown situation of millions of people occupying our country illegally. Where is that situation in the common law with its fundamental rule of citizenship by birth within the country? Now there are vast numbers of occupants of our nation who have a “peculiar relation to the national government” instead of a relatively small number of cases. How does the historically blind government deal with these invaders? It declares their children to be U.S. citizens (!) because of the mistaken belief that “the fundamental rule of citizenship” demands it. This insane approach makes it possible that a firstborn child born across the border before the family is smuggled into the U.S. will have siblings just a year or two younger who are considered U.S. citizens while they are considered aliens. How does a government sanely deal with such a peculiar relationship when it confronts the task of deportation? It can’t because there is no solution.
This madness is purely the result of the aberrant, dysfunctional, and historically uncivilized practice of the principle of national status based on birth location, rather than parentage.
“This presumption is confirmed by the use of the word ‘jurisdiction,’ in the last clause of the same section of the fourteenth amendment, which forbids any state to ‘deny to any person within its jurisdiction the equal protection of the laws.’ It is impossible to construe the words ’subject to the jurisdiction thereof,’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ’subject to the jurisdiction of the United States.’”
This logic is totally pedantic and sophoristic logic. The word “within” relates to space and boundaries, while “subject” relates to relationships between two parties. Being within the jurisdiction or authority is not synonymous with being subject to the authority unless one is a programmed robot. Entities, including foreigners (and governments), have certain rights and their relationship is not solely a product of occupying a certain space claimed by the authority. Rather it is contingent on certain conditions, it’s conditional. If conditions are met then one may choose to be in rebellion instead of submission or subjection. Outlaws, bandits, invaders, rebels and enemy combatants may be within the King’s/the government’s territory but not be subject to the authority. This principle is shown by the existence of universally accepted exceptions. The exceptions are evidence that the government’s sovereignty is limited by certain principles and is not absolute. This is true either by necessity, or by necessity along with being the chosen policy of the government.
Foreign representatives, independent Native Americans and Aleuts, and visiting foreigners are not subject to the U.S. federal jurisdiction, and cannot be ordered to be conscripted into the military, nor forced to file income tax, nor buy health care insurance, nor to not visit Cuba, nor tried for treason. They are immune to the full political authority of the federal government all the while being subject to civil and criminal law (except as exempted by treaty). These days a child born to a visiting foreign woman is a child that can’t be presumed to have a future of growing up in America because, unlike the past, the mother/parents can simply drive or fly right out of the country on any chosen day. The paradigm has changed from rural to urban, from urban to suburban, from county to state, from state to national, from national to international. We live in a different world but our concepts of the principles of citizenship are frozen in the ignorant past, ossified and we are now the victims of that ignorance.
“It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher’s case in 1851, and since repeated by this court: ‘Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,—it is well known that by the public law an alien, or a foreign born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations.’” Executive Documents H. R. No. 10, 1st Sess. 32d Cong. p. 4; 6 Webster’s Works, 526; U. S. v. Carlisle, 16 Wall. 147, 155; Calvin’s Case, 7 Coke, 6a; Ellesmere, Postnati, 63; 1 Hale, P. C. 62; 4 Bl. Comm. 74, 92.
This is an amazing presumption that is based solely on fallacious impressions. What is stated is the policy of a dictatorship, not a free democratic republic. Its position is that anyone who visits the United States is subject to being drafted into the Army. The truth is the exact opposite of what is claimed. “It can hardly be denied…it is well known that…” These assertions are false and fly in the face of reason. They only have validity if the words “independently of ” are omitted, because they make the statement ridiculously erroneous. Subjection to political jurisdiction is totally dependent on any of the situations enumerated being true rather than not being true. It hinges on the meaning of the words “resides” and “continues”. Residence (domiciliation) is the opposite of transiency (visitation) and those two possible situations determine the government’s established view of whether or not one is subject to its jurisdiction.
“To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”
The 14th Amendment was written to guarantee citizenship to children born of U.S. immigrants. By it they are native born citizens. If their parents are naturalized to become U.S. citizens, the children subsequently born to them will be natural born citizens, -born to citizen parents. If the parents are not naturalized, nor even immigrants but only visitors, their children are ineligible to be the president of the United States because they would not be natural born citizens.
“So it is settled. Persons born here are fully and completely subject to our jurisdiction, and are citizens by birth [with exceptions]. All you need to finish the question of presidential eligibility is a dictionary.”
This statement reveals the magnitude of ignorance that is endemic in the country. Not only is it factually baseless, but it’s also logically baseless. Its assumption is that native birth confers eligibility. Or a more complex assumption is that native-birth citizenship is equivalent to natural born citizenship but that looks at only their similarity and ignores their difference. The similarity is the location of birth, the difference is to whom they are born; -citizens or not citizens, i.e; aliens.