We can continue to ignore the intent to clarify what constitutes being a citizen or ..

We continue to have a problem.

The people who violate our sovereignty are here.  The children of immigrants are assumed to be a way to maintain an illegal presence in our country by these invaders from foreign lands.  In that process, the constitution is used to serve excuses for the law breaking.  Michigan attorney Jim Fuscaldo clarifies a few things in “A Citizen’s Primer on the Citizenship Clause of the Fourteenth Amendment.”

By James J. Fuscaldo

Introduction

James Madison said, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”

Congress is debating the need for comprehensive immigration reform. The reason is to deal with illegal immigration; manage the growing number of illegal immigrants in the United States, and create an equitable path to permanent residency and citizenship for all illegal immigrants and their families in the United States.

An essential part of United States immigration policy is based on the executive branch’s current practice of granting birthright citizenship to children born in the United States whose parents are either illegal aliens; a temporary nonresident alien (guest worker) living in the United States, or aliens lawfully in the country for a limited time and purpose.

Birthright citizenship is not authorized by the Constitution or congressional legislation. It has not been validated by any Supreme Court or Appellate Court decision. Constitutional scholars and eminent jurists have studied the historical record; the congressional debate before its adoption; the case law pertaining to the Citizenship Clause of the Fourteenth Amendment, and its association with our English Common Law heritage.  They have concluded that granting birthright citizenship to children born in the United States whose parents are either illegal aliens or temporary nonresident aliens (guest workers) living in the United States, or aliens lawfully in the country for a limited time and purpose is not supported by the Citizenship Clause of the Fourteenth Amendment.

Before analyzing the historical significance and meaning of the Fourteenth Amendment it is incumbent on us to first consider a review of the Thirteenth Amendment and the Civil Rights Act of 1866 as evolutionary precedents for the Fourteenth Amendment.

The History of the Thirteenth Amendment

The Thirteenth Amendment, ratified in 1865, abolished slavery by prohibiting individuals, acting in their private capacities, from keeping slaves. The Thirteenth Amendment had no effect in ensuring the fundamental right of personal liberty to slaves. Consequently, states retained the power under the Tenth Amendment of the Constitution to enact Black Codes. These Codes restricted the civil liberties of freed slaves. Except for the federal prohibition of slavery, states had the authority to regulate the civil rights of persons within their jurisdiction. Under state law and the Constitution private individuals retained the personal right of freedom of association. This included the right to discriminate as they pleased in private, commercial and social interactions.

Why did the Thirteenth Amendment fail to protect the civil rights of the freed slaves?

To avoid a contentious debate over the abolition of slavery the framers of the Thirteenth Amendment refrained from writing specific civil right guarantees into the text of the Amendment. To limit objections and debate on the Amendment the framers adopted the antislavery language that was used in the Northwest Ordinance of 1787. This language was debated and used to prevent slavery from being introduced in the Northwest Territory. Therefore it was considered acceptable for Thirteenth Amendment purposes.

Consequently, to ensure the freed slaves their rights and to limit the power of the states to enact and enforce the Black Codes under the Tenth Amendment, Congress enacted the Civil Rights Act of 1866.

The Civil Rights Act

The Civil Rights Act of 1866 was enacted to provide blacks with civil rights protection against the Black Codes that were enacted by the reconstructed state governments that were part of the Confederate States of America. Why was the Civil Rights Act necessary?
The Civil Rights Act declared, “That all persons born in the United States and not subject to any foreign power (i.e.aliens), excluding Indians not taxed (the Indian tribes retained their tribal sovereignty), are hereby declared to be citizens of the United States”.

Under the Act all citizens, regardless of race, color, or previous condition of servitude, were granted the same right as free whites to make and enforce contracts; to sue, be sued, and give evidence in court; to inherit, lease or own property; and to have the full and equal benefit of all laws for the security of persons and property. The Act authorized the courts to protect persons denied these enumerated rights because of their race against anyone acting under the power of state authority.

After passage there was concern whether Congress had the authority under the Thirteenth Amendment to pass the Civil Rights Act, and whether the Act could withstand a constitutional challenge. There was concern that a different Congress would adversely amend or eliminate the Civil Rights Act.To resolve these concerns, and ensure the Civil Rights Act would protect freed slaves against the Black Codes enacted by the states, and to ensure no constitutional challenges or conflict with the Tenth Amendment (States Rights), the Fourteenth Amendment was passed.

The Citizenship Clause of the Fourteenth Amendment

The Fourteenth Amendment was ratified in 1868. Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857 the Dred Scott decision held that no black of African descent, even a freed black, could be a citizen of the United States. The Fourteenth Amendment made United States citizenship paramount and state citizenship secondary to remedy this inequity.  The primacy of federal citizenship over state citizenship made it impossible for states to prevent slaves from becoming United States citizens by withholding state citizenship.

The Citizenship Clause of the Fourteenth Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The citizenship clause of the Fourteenth Amendment does not contain the phrase “excluding Indians not taxed” that was inserted in the Civil Rights Act.

Why is this significant?

It was argued that this omission would make Indians citizens of the United States. Senator Jacob Howard, the author of the Citizenship Clause, defended the exclusion.  Howard argued, “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States”.

Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, agreed with Howard’s interpretation. Their comments and the acceptance of their explanation during the Congressional debate clearly established that the phrase “subject to the jurisdiction thereof” was based on national allegiance and loyalty to the United States.  Congress concluded that Indians were not “subject to the jurisdiction” of the United States because they owed allegiance and loyalty to their sovereign tribal nations.

The Indian tribes were sovereign nations within the United States. A nation within a nation.  The commerce clause provides evidence of the sovereignty of the Indian tribes. It states, “The Congress shall have Power… to regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes” (Article 1, Section 8 of the Constitution).

There are two constitutional requirements for United States citizenship. The first is “born or naturalized in the United States”. The second is “subject to the jurisdiction (allegiance and loyalty)” to the United States. The interpretation of two separate requirements is validated by use of the conjunction “and”. In legislative interpretation use of the conjunctive “and” in a list of requirements means that all the listed requirements must be satisfied. Whereas use of the disjunctive “or” means only one of the listed requirements need be satisfied.

The history of the debate pertaining to the Citizenship Clause of the Fourteenth Amendment is clear. Being born within the territorial limits of the United States did not make one automatically subject to the jurisdiction of the United States for purposes of citizenship status. The term “jurisdiction” in the Citizenship Clause did not mean simply subject to the laws of the United States, or subject to the jurisdiction of the courts because of a mere physical presence resulting from birth. Jurisdiction in the Citizenship Clause meant allegiance and loyalty to the United States and not to any foreign nation or Indian tribal nation.

Senator Howard further stated, “jurisdiction understood in the sense of allegiance will not, of course include persons born in the United States who are foreigners, aliens, (or) who belong to 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 what persons are or are not citizens of the United States.”

The Citizenship Clause of the Fourteenth Amendment is consistent with the legislative intent expressed in the citizenship declaration of the Civil Rights Act that preceded the adoption of the Fourteenth Amendment. Both exclude from birthright citizenship persons born in the United States when there is the existence of a competing claim of allegiance or loyalty to another nation or sovereign power.

The Civil Rights Act used the language “excluding persons subject to any foreign power”. The Fourteenth Amendment included only persons “subject to the jurisdiction” of the United States.   The Civil Rights Act used exclusionary language and the Citizenship Clause used inclusionary language to define citizenship. Both achieved the same definition for citizenship, but from different perspectives.

The essential element for citizenship in both cases is exclusive political allegiance and loyalty to the United States not soil of birth ( jus soli). We can conclude the phrase “subject to the jurisdiction thereof” in the Citizenship Clause of the Fourteenth Amendment does not mean subject to American laws or American courts as commonly believed.

Next: Part II in the series –   Executive / Administrative Policy on Birthright Citizenship

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