Misconceptions about the 14th Amendment and Native Birth
In a National Review commentary, Edward J. Erler stated:
A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship.
Although he is a senior fellow at the Claremont Institute, he was raised like the four generations before him (us) to believe things that are simply not historically accurate. Because of our estranged modern ignorance, he made four mistakes in that one simple sentence. They are not as important as what he got right, but they are nevertheless still important in understanding reality.
The first error is in stating that Congress was given “constitutional power” to define who is within the “jurisdiction of the United States”. It is absurd to state that the exercise of authority is “ample proof” that that authority is constitutional. If that were true then all authority exercised could be deemed constitutional by its mere exercise.
Second, the source of authority that he was actually referring to, (the 14th Amendment) contains absolutely no mention of Congress having power to define who is “within” US jurisdiction.
Understand this: “within” means inside, and inside refers to position or location within a specified area, -in this case the area or jurisdiction defined by US borders. That is reference to the territorial meaning of the word. That meaning is not found in nor related to the citizenship clause of the 14th Amendment.
What is found is reference to “SUBJECTION TO the jurisdiction”. The difference is gigantic. That reference is to political authority, not territoriality and boundaries.
The amendment states:
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 one was not born to a foreign father subject to the full political authority of the State government of residence, along with the Federal government, then one was not born subject since “subject” means fully subject. That in turn means subject to the obligation to defend one’s own home, homeland, county, state, and nation.
Those who have that natural responsibility are those who are national members, members of American society, legal members, -members who are legally obligated to answer the call of duty when or if it ever comes.
Illegal aliens and foreign visitors or guests are not under any such obligation or potential duty because America is not their home and they have no obligation to defend it. They are exempt, just like foreign ambassadors. Therefore, any child born to them cannot be subject to an authority of adulthood which they did not inherit from their father. They therefore were not born as citizens of the United States since they were not born subject.
Third, the wording: “power to define who is within the ‘jurisdiction of the United States'” is faulty since no such wording is found anywhere in the amendment, making the use of quotation marks a definite mistake.
Finally, is it false to state that by providing American Natives with citizenship, Congress was exercising proven constitutional authority when just the opposite is the case.
Congress had no authority at all to extend citizenship to anyone, including Native Americans. The only authority given to Congress was to author a nation-wide uniform rule for the States to adopt for their naturalization proceedings so that there was only a single standard across all of the States (which also retained authority over immigration).
So Congress could not constitutionally define who was or was not a citizen and that was why there was such confusion between State citizenship and national citizenship. Both levels of government had incontestable authority over their own determination of citizenship. The States could make citizens of anyone as they so chose, but if the national standard was not adhered to then such a State citizen would not be a citizen of the nation, meaning the national government, -even if other states choose to recognize citizenship that was not congressionally approved. But I digress…
To give US citizenship to Native Americans required the consent of We, the People since such a recognition and inclusion was not a part of the compact of the States when the Constitution was ratified. It could only be made fully legitimate via a constitutional amendment. But Congress was too full of itself to even consider that its power was limited.
“Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship.”
This statement employs a term that is completely misused and misapplied; “birthright citizenship”. A birthright is a right with which one is born, such as the firstborn of a royal family. It is his birthright to inherit the throne. That right is by birth because he was born first and of royal blood. It has nothing whatsoever to do with where he was born.
An accurate replacement would be a more awkward expression but it would not include the word “right” because that which is via permission of the host is NOT a right. It might need to be “native-birth naturalized citizenship”.
“It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the 14th Amendment.”
It is not nit-picking to point out that what entered the Constitution was NOT a “definition” but a description. Descriptions do not define, they describe. Those so described are citizens. They are not “defined” as the only citizens because they were the rare minority of citizens (born of ex-slaves or aliens), with the vast majority being undescribed anywhere in the Constitution other than by the English language term of “natural born citizen” (the 97%).
Jurisdiction understood as allegiance,… -owing exclusive political allegiance to the U.S.”
Outside of the military, allegiance is a concept unrelated to the civilian life of the self-governed. What they owe is obedience to their duty, to their obligation or responsibility toward their own, -their own home and country and people. They are co-members like the crew of a lifeboat. They do not owe allegiance to the lifeboat but to each other and their mutual survival.
“-there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship.
In the case of Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment.
The error in these sentences is one of focus. He couches the subject as one between illegal and legal aliens when it is beyond that simply dichotomy. It is one of residence vs non-residence first and foremost. Were the parents immigrants or non-immigrants?
Non-immigrants cannot give birth to US citizens.
Are illegal “immigrants” really and truly immigrants according to the recognition of the US government or are they invaders, colonizers, usurpers of American space? Whatever the answer is, if they are not legal immigrants, then they are not fully subject to the full jurisdiction of the US government, and would not have registered for the Selective Service as is required of all male citizens and legal immigrants between 18 and 25.
It is the male class of legal permanent residents and citizens of the United States which is the only class fully subject to the full political jurisdiction of the nation. It is their blood that is the price of remaining free in a world that is not all totalitarian. A child born to one of them, or those of their class, (male) is most definitely born subject to the same authority as the father (if that child is male).
Remember, when the amendment was written, women were only quasi-citizens, demi-citizens, like minor children who were the property of their husband. Foreign women could not become naturalized citizens. That was their husband’s responsibility. They became citizens through him. Their proof of citizenship was their marriage certificate and their husband’s naturalization papers. They had no citizenship of their own.
“Congress used its legislative authority under Section Five of the 14th Amendment to determine who was within the jurisdiction of the U.S.”
That is false on multiple fronts. The section Five enactment authority clause was not used to determine “who was within the jurisdiction” because that ambiguous language implies determining who is inside the US., -with “jurisdiction” referring to territory instead of referring to who is “under” or “subject to” the jurisdictional political authority of the government.
Congress had already determined who was subject by writing conscription law during the Civil War that used language which failed to exempt male immigrants who were not citizens but were permanent residents. They, although still technically subject to their foreign monarch, were forced to submit to military service because they also were members of American society just like male citizens.
Children born to them in the US were viewed by their State government as common law State citizens even if not recognized as such by the administration in power in Washington. But after the US v Wong Kim Ark supreme court opinion in 1898, such alien-born children were recognized as citizens of the nation.
But children born in the US were not so recognized by the court if born of non-immigrant aliens. The father of Barack Obama was such a non-immigrant which means Jr. was not born as a 14th Amendment US citizen.
Even if born “within” the jurisdiction, he was not born “subject to” the jurisdiction that was political or civic in nature. So if he was not born as even a “birthright citizen”, then how could he possibly be viewed as “a natural born citizen” as the Constitution requires of all Presidents??
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The purpose of this exposition is not to diminish the excellent and vital points made by Edward J. Erler, which are essential to understanding the subject of citizenship, but simply to clarify the few areas of misunderstanding which are standard in this era of misconceptions.
We were all raised to believe things that were not true, -to believe things that we were not taught, but which we were not taught were wrong either. Education by silence is no education at all, and so everyone was raised uneducated, -as uneducated as the educators, and their educators,… going back to the 19th century when the bastardization began big-time.
And so grew the national myth that we are all citizens by being born within US borders, when that has never been true except for those native-born of foreigners. They, by the British convention of common law, were deemed to be subjects of the Crown, and later citizens of the State or Commonwealth of their birth which was one of the American republics.
But those born of Americans were Americans for that very reason, -not because of where their mother happened to be when they were ready to exit her womb.
Natural citizenship is a natural right of belonging which is passed on from generation to generation, continuing the populating of the nation by reproduction, -not by a gift of national law bestowed by god-like government to only those lucky souls fortunate enough to have been born within the United States.
But that is exactly the actual origin of citizenship of those native-born of aliens. It is that common law gift of citizenship that made those like Marco Rubio United States citizens, and nothing else. They, without American parents, was not and could never be one born as a natural citizen and therefore eligible to serve as the President of the United States
by Adrien R. Nash August 2015 obama–nation.com