Posts Tagged ‘birthright citizenship’

Simple Truth of Immigration Law, viz. Immigration Reform Act

June 21, 2013

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.

Fax this Memo to your Congressman

February 24, 2011

The concept of birthright U.S. citizenship by native-birth alone is a carryover from English law as practiced by the American colonies, but superseded by the 1790 Uniform Naturalization Act that relied on the ‘Law of Nation’s’ § 212 description of “those born in the country, of parents who are citizens.”

The reason ‘native-born citizen’ is so terribly conflated in the American psyche as synonymous with ‘natural born citizen’ is because of over a century of the judiciary ignoring U.S. statute.

The Lynch case (1844) violated the 1790, 1795, 1798, 1802, and 1804 uniform naturalization acts through semantic gymnastics and false logic, implying law and intent that went beyond the clear language of the acts themselves.

Wong Kim Ark (1897) side-stepped the existing requirements of legislated Act by creating a special ‘constitutional’ citizenship-at-birth. Ark’s violation of jurisprudence (neglecting to address treaty and equity issues actually within the court’s jurisdiction) completely ignored the 1866 Civil Rights Act’s “not subject to any foreign power” as precursor to the 14th Amendment’s “under the jurisdiction thereof” clause. Ark continues in its effect to this day, causing the courts to ignore the conflicts of dual nationality at birth and, through Plyler vs. Doe (1982), forcing states to treat children of even illegal aliens as citizens.

The Judiciary versus Congress; Removing the Redundancy

The constitution, and case law cited in Wong Kim Ark, specifically enumerates congressional plenary power over uniform naturalization law. However, while Minor vs. Happersett (1874) commented in dicta [or Judicial Notice] that a ‘natural born citizen’ was without doubt a child born of U.S. citizens, the judge in Ark intentionally fabricated a ‘constitutional’ citizen out of reach of congressional Article I powers.

The judiciary’s reliance on English jus solis principles for citizenship at birth was belied by English law itself; that law relying on both ‘descent’ and ‘otherwise than by descent,’ i.e., of patrilineal inheritance, or just born within English dominion. The courts compounded their error by creating the ‘birthright’ native-born citizen, which has burdened the states by encouraging illegal immigration. [See also the Preamble to the 1772 British Nationality Act, defining children of British subjects born outside British territory, i.e., the United States from its first inception, natural born British subjects . . . therefore, under British law Obama was a natural born British subject.]

In addition, judicial error has created a constitutional crisis, for it has justified the son of a British subject, Barack Hussein Obama, to erroneously claim Article II eligibility to the presidency through native-birth alone. This is obviously something the framers never intended.

Congress has the power to correct over one-hundred years of judicial ‘legislation’ simply by clarifying Title 8, U.S.C. § 1401(a) with a definition that “under the jurisdiction thereof” is extended from the 1866 Civil Rights Act’s “not subject to any foreign power.” The legislative history supports this amendment to existing statute.

In addition, the current misinterpretation is a gross redundancy; a child ‘born in the United States’ is obviously within its territorial jurisdiction. Foreign political jurisdiction conferred through the law of nations is, as defined in the rest of the Aliens and Nationality Act, the effect of one alien or non-citizen parent who introduces alienage.

https://paraleaglenm.wordpress.com/2011/02/17/the-missing-link-confusing-english-law-with-natural-born-citizenship/

https://paraleaglenm.wordpress.com/2011/01/07/who-is-a-citizen-at-birth-or-a-natural-born-citizen/

https://paraleaglenm.wordpress.com/2011/10/18/the-transition-from-jus-soli-obama-not-a-natural-born-citizen/