Simple Truth of Immigration Law, viz. Immigration Reform Act

There are only two political conditions in which the national allegiance of a father has no bearing on the allegiance or citizenship of the child at birth:

  1. Feudal Monarchy
  2. Slaveholder’s property rights over the issue of his slaves

I want you to think about this as you read further, because the condition of property and subjection is clearly apparent in the above. One would think rights of the father predominate in free societies, especially a constitutional republic in which the government is crafted to be ‘subject’ to the citizens, not the other way around.

As I’ve posted previously, the ratio of illegal to legal immigrants is approximately 10-to-1. For some reason, lawless behavior is the status quo and the result is a broken INS.

Therefore, the so-called Immigration Reform Act is not so much reform but utter ‘liberalization,’ including sections hidden within its one-thousand pages pledging millions in ‘pork’ to activist organizations such as La Raza. Indeed, the cowardice of our congress to control the borders and deport illegal aliens is the cause for ‘liberalization,’ i.e., reform, which in reality is the abrogation of existing law to avoid its constitutional obligations.

Here is an interesting quote from an excellent Wikipedia article, cited by the Boston Bar in their article on Jus Soli (‘right of soil’). http://www.bostonbar.org/sections/international-law/news-archive/2011/11/22/jus-soli

In the 1898 case United States v. Wong Kim Ark 169 U.S.649 (1898), the U.S. Supreme Court held that the “subject to the jurisdiction thereof” restriction applied only to two additional categories: children born to foreign diplomats and children born to enemy forces engaged in hostile occupation of the country’s territory. The Court also rejected the government’s attempt to limit Section 1 of the 14th Amendment by arguing it was intended solely to allow former slaves and their descendants to become citizens.

Actually, the latter part of the quote rejecting ‘the government’s attempt to limit’ is the key to understanding our current immigration crisis. The ‘government’ this article refers to was the U.S. Attorney in his brief [http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA] before the Wong Kim Ark. Unfortunately, only two out of nine justices of that court, including the Chief Justice, dissented, and vigorously. (Search ‘Chief Justice Fuller Wong Kim Ark Dissent’)

Indeed, the law as it stood from our nation’s beginnings, from the first Naturalization Act to its last intact revision in 1855 required a U.S. citizen Father for a child, as a minor or at birth, to be a U.S. citizen. There was no ‘right’ of soil, i.e., jus soli.

Therefore, the ‘government’ in Wong Kim Ark was correct; the 7:2 SCOTUS majority was wrong. However, many congressmen and jurists are stuck with the idea that Calvin’s Case (1608) is a common law principle adopted by the states, which just isn’t true! In fact, the English law most valuable as controlling law is the 1772 British Nationality Act, which is jus sanguinis, not jus soli.

Indeed, the 14th Amendment, a summary of the Reconstruction Acts after the Civil War, specifically the 1866 Civil Rights Act, was to protect the rights of slaves, and to remove their ‘stateless’ condition.

In fact, that stateless condition as property resulted in no nationality passed on to their children, revealing that jus sanguinis (blood of the father) was the law of the land (pun intended) and jus soli had to be conjured up, resurrected so to speak, from Gothic laws from two centuries previous, from a case called Calvin’s Case (1608). How awkward and inappropriate to cite ancient law, and foreign law too.

Some jurists say that jus soli is part of our common law tradition, inherited from English common law. Two things bely that judicial notice: 1) The 1772 British Nationality Act invoked jus sanguinis as its primary principle toward the recognition of natural born subjects, and 2) English common law was, in our earliest case law, denied stare decisis status, unless that cited law was specifically approved in the state’s highest court. [citations omitted]

As you may see now, the ‘birthright’ soil citizenship conjured up by the Wong Kim Ark majority is what created our out of control immigration problem, and must be ended. The Boston Bar suggests that Wong Kim Ark, even if in error, has been on the books so long only a constitutional amendment can change it. However, Art 1, Sec 8 gives congress plenary power over Naturalization law, and it can correct the Ark court’s misinterpretation of the 14th Amendment’s ‘born in the United States and subject to the jurisdiction thereof’ as being derived from the 1866 Civil Rights Act’s similar preamble, ‘born in the United States and not subject to any foreign power.’

Of course, activists will take that revision/addition/clarification to 8 USC 1401 to the Supreme Court, but I feel the legislature would prevail.

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6 Responses to “Simple Truth of Immigration Law, viz. Immigration Reform Act”

  1. arnash Says:

    John William Griggs
    Forty-Third Attorney General He resigned the Governorship to accept President McKinley’s appointment of Attorney General of the United States, and served in that position from January 25, 1898 until March 29, 1901. He was one of the first members appointed to the Permanent Court of Arbitration at The Hague, and served from 1901 to 1912.]

  2. paraleaglenm Says:

    re: U.S. Attorney Griggs
    Legislated Act versus Common Law

    The U.S. was represented by Conrad Holmes, Solicitor-General. The Secretary of State is usually the defendant, e.g., Rumsfeld. vs Hamdan, Rogers vs Bellei . . .
    In addition, Ark was a 6-2 decision, only Fuller and Harlan dissenting.

    The controversy is constitutional legislated act versus common law.

    The U.S. Brief is cited and linked in the text above. It is well written and as accurate a representation of the law as the Chief Justice Fuller Dissent.
    Therefore, your criticism of AG Griggs is curious; Griggs did have the correct position and interpretation of the law.
    Another good resource is the Statement of the Case, a required filing in appeal. Two judges cited supporting Ark’s citizenship were Justice Field and Morrow, J. (1896).
    The problem in the holdings for Wong Kim Ark in the lower courts were the misinterpretation of the 14th Amendment.
    Misinterpretation is different than amendment. Indeed, how many times have we called the misinterpretation of Article II’s ‘natural born citizen’ clause an unconstitutional amendment?
    Therefore, congress can revise through definition of terms and citation of legislative history existing law, e.g., 8 USC 1401, to reflect not a change, but revealing the true legislative intent.
    The court only had constitutional power over: 1) Treaty, and 2) Cases and Controversies. The Ark court blew it on both counts.
    Congress, indeed, has constitutional power over its own law.
    Now, advocates of existing interpretation, including the Justice Department under Holder, can raise bloody hell and file an injunction in the Supreme Court . . . that, however, is part of the process and the checks and balances our framers gave us.
    The controversy is common law vs legislated act. The constitution in Art 1 Sec 8 gives a clear plenary power to congress, not the judiciary. Yet, the judiciary claims common law the ruling principle.
    Look at the 1772 British Nationality Act, and you see jus soli is not the principle, but the father being a subject himself.
    Here is the decision in Lynch, a lower court with no jurisdiction over the subject (Cf. Ankeny, Liakakos):
    Lynch v. Clarke, 3 N.Y.Leg.Obs. at 250. “Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen…. I am bound to say that the general understanding … is that birth in this country does of itself constitute citizenship…. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen…. The universality of the public sentiment in this instance … indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.”

    I have debated, by mail, this subject with a couple congressmen and the problem is clearly evident. Congressmen no longer represent state interests in the Senate, and are educated as lawyers mostly. Therefore, they have an unreasonable ‘fear’ of judges . . . instead of acting as ‘lawmakers,’ they look to judges as a superior intellect and power of government. No . . . they are co-equal, and in the case of Naturalization and Nationality, superior having plenary power.
    That is the problem . . . not the Supreme Court’s decision final over what the 14th Amendment means.

  3. arnash Says:

    Why did you block the remarks that you are responding to? That is very impolite.
    You wrote:
    “Therefore, congress can revise through definition of terms and citation of legislative history existing law, e.g., 8 USC 1401,” and
    “The controversy is common law vs legislated act.”

    That view does not express the current situation. Yes, Congress can more clearly define its own legislation, but it is a much more tricky proposition to re-define a Constitutional Amendment. The meaning of ambiguous amendments is a gigantic problem which may lead to our national disintegration.
    But the problem isn’t the 14th Amendment, nor its misinterpretation by the high court. Instead it is the mis-interpretation of the high court’s opinion by the office of the Attorney General that was a second and greater bastardization of U.S. policy and tradition.
    It was an insignificant error back when it was made because illegal immigration as a problem was non-existent. And the number of babies born to visiting foreigners was about zero. That is no longer the case.
    The State Dept. follows the legal opinion dispensed by the Attorney General, so its change in policy must be laid at his feet.
    Not having read the case you cited, I can’t comment on what Griggs wrote. All I know is that in 1901, the policy of the U.S. government was that all children born on U.S. soil were Americans, except for those of diplomats. So jus soli for foreigners was in effect at that time. Blaming Griggs is only incorrect if in the same year that he left, the next A.G. changed the policy to what it has been ever since.
    If you could determine exactly what the position was before 1901, then Griggs might be shown to be innocent. It sounds like he held the correct position, so the possibility exists that the blame may fall on his successor who served 9 of the months of 1901.
    If that’s true, then I have many expositions that I’ll have to correct. I’d sure like to get the facts straight before I publish everything.

  4. paraleaglenm Says:

    1) I edited because of length, and because most of it was just agreement with the post. I do not expect comments to be longer than the original post.

    2) The Solicitor-General representing the United States, including the Sec of State, did not agree with the courts adopting jus soli. Read the linked Brief and Fuller’s Dissent. The lower court based its incorrect holding on the Lynch case.

    3) Congress has plenary power over Naturalization Law. The Judiciary has power over Cases and Controversy. However, the court cannot decide a case in such a way that its holding is in conflict or contrary with legislated act.

    I repeat, the legislative history from Naturalization legislation, 1790 to 1855, was purely jus sanguinis. In addition, the 1866 Act identified the foreign national subjection of the father to determine the citizenship of a child born in the United States, and that Act was the direct precursor to the 14th Amendment.

    The courts gave judicial notice (a conclusion or stated fact without citation or proof) that U.S. nationality law was based on English common law, citing the 1608 Calvin’s Case. This was ERROR.

    English law recognized jus sanguinis not only in its 1772 British Nationality Act, but the right of alien denizens/habitants, to deny any jus soli citizenship on children born in the king’s dominion. In addition, most state case law and constitutions denied British common law as having power of stare decisis.

    Therefore, Congress, by revising 8 USC 1401 to conform to the legislative history of the 14th Amendment is not amending the constitution, but tossing an erroneous decision, Wong Kim Ark, back in the face of the Judiciary.

  5. Adrien Nash Says:

    If Congress were to clarify the meaning of “subject to the jurisdiction thereof” according to its original meaning, then it would be overturning the Wong opinion. That would result in a constitutional face-off which would provide the high court no constitutional basis to overturn the vote of Congress since Congress wrote the 14th Amendment and passed it with a particular understanding of what it meant.
    The court has no basis to tell Congress what Congress meant and would have to swallow the abrogation of the Wong opinion, accepting either that it was in error or that the constitutional authority of Congress supersedes their own authority to alter the meaning of what Congress has legislated.

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