Musings on Immigration

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A Discussion on Fox News - Atlanta About Immigration

You know, when you appear on Fox News that the questions are going to be tough. That is what I love about this discussion--Tough questions, Tough answers:



Russ and I spoke both before and after this segment about Immigration and Immigration Reform. What I admire about him, is that he get both sides of the debate and understands that we are all going to have to settle somewhere in the middle.

The Next Goal--Eviscerating the 14th Amendment

I originally posted this at the AILA Leadership Blog.

The next goal of the anti-immigration crowd is to eliminate what some call “birthright” citizenship. This is a derogatory way of saying the following: If you are born in the United States, you are a citizen by right of birth in the United States. This was not always the case in America, at least as it applied to African Americans or Native Americans. It took the Civil War, and the 14th Amendment, to ensure that anyone born in the United States “and subject to the jurisdiction thereof” is a United States Citizen. Have no doubt about it, despite what you will read below, the anti-immigrant movement, including folks like new Arizona Senate President Russell Pearce, and new Kansas Secretary of State Kris Kobach have plans in the works to try to destroy this fundamental and well settled constitutional issue. For folks like Pearce and Kobach (see the picture above from his campaign website) the overriding concern is not the rule of law (if it were they would follow the law), rather, their concern is purging the United States of immigrants and if that means trying to overturn 130 years of Supreme Court precedent, so be it.

Since at least 1994, when Congressman Bob Stump (R-AZ) filed H.R. 3862 calling for, among other things, an end to “birthright” citizenship, the anti-immigration crowd has been championing the idea that the 14th Amendment does not mean what it says. The “anti-birthers” argue that somehow, a U.S. born child is born of a mother or a father who was NOT “legally” in the United States is therefore not a citizen because their parents are somehow “not subject to the jurisdiction” of the United States. Some of these anti-birthers go so far as to claim that the Supreme Court has only on one occasion, and that in footnote, discussed the meaning of “subject to the jurisdiction thereof.” The problem with a lie (among other issues) is that if you tell it often enough some folks will believe it is the truth. That is the reason that websites like www.snopes.com exist, to try to dispel myth and rumor from factual and supportable truth.

Well to help you out (and possibly steer some of our Congressman and Senators from the precipice of irrationality on this issue) let’s look at what the “subject to the jurisdiction thereof” means in the context of the 14th Amendment to the United States Constitution.

First, a little history lesson. One of the first acts of Congress, after the adoption of the Constitution, was the passage and signing into law of the Naturalization Act of 1790, a copy of which is framed in my lobby. As noted in Wikipedia:

This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus, left outindentured servants, slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father.

In order to address one’s “good moral character,” the law required two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When those requirements were met, an immigrant could file a Petition for Naturalization with “any common law court of record” having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court would administer an oath of allegiance to support the Constitution of the United States. The clerk of court was to make a record of these proceedings, and “thereupon such person shall be considered as a citizen of the United States.

The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization, “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens.

So, prior to the Civil War, white people of good moral character were considered citizens of the United States. Beyond that rules on U.S. citizenship were, at best, haphazard.

Second, under universally accepted rules of statutory and constitutional construction, we must consider the “plain meaning” of the words used, when they were used. “[S]ubject to the jurisdiction thereof” meant, in 1866:

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. Calvin’s Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42.

See, U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)(citing Elk v. Wilkins, 112 U.S. 94 , 5 Sup. Ct. 41 (1884, and a LONG line of subsequent cases.

Quite clearly, the phrase “subject to the jurisdiction thereof” has long worked to exclude only the children of diplomats and native Americans who were members of sovereign nations. Everyone else born in the United States is a U.S. citizen by birth. Period. .

Third, and finally, the Supreme Court clearly and definitively ruled on the full and entire meaning of the 14th Amendment in U.S. v. Wong Kim Ark in 1898, over 110 years ago! In that case, the court considered whether:

a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.

For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). Mr. Ark, and the Supreme Court, have long ago resolved this question for us. Children born in the United States whose parents are not officially working on behalf of a foreign government are STILL United States Citizens.

The proverbial “Rule of Law” standard espoused by the anti-birther movement would seem to stop these folks in their tracks. But, the anti-immigration, anti-birther movement will not be stopped by law, logic or by fact. Nonetheless, besides being good public policy, it is good to know that the law is already crystal clear, and that no act of Congress is going to change what the Constitution says. As of yet, the anti-birther movement is still a small minority and does not have the power to adopt or pass the Constitutional Amendment necessary to strip citizenship away from U.S. born children. After all, and as noted by the Supreme Court in 1898, we fought a Civil War over this issue.

Purported Voter Fraud and the "Illegal" Bogeyman

Yikes--just when you thought this election season could not get any crazier. Last Wednesday, a Tea Party Congressional candidate from Arizona, Jesse Kelly, appeared on the Mark Levin show. Kelly stated that "rumors" were floating around that "Mexicans" were going to be bused in to vote against him in the election.

LEVIN: You’re gonna have to squeeze out every single vote there plus some because they’re gonna pull their dirty tricks like they always do, Jess.

KELLY: They already are down here. We’re already getting reports of voter fraud. Especially in one of the counties in my district there is actually rumors — people have video of them busing people across from our southern border. We’re a border district. They literally bus people across from Mexico to have them vote at the polls on election day, give them a meal, and then bus them back. So we’re really fighting against that down here.

You can listen to this segment here in case you cannot believe what you read:

The Arizona Secretary of State tried to quash this rumor by detailing the fact that such a thing has never happened nor is there any evidence it is going to happen. But, facts be damned--if I heard it on the radio, or saw it on the internet, or someone sent it to me in a forwarded chain email, it must be true.

Not to be dissuaded, Maricopa County Sheriff Joe Arpaio (he of the thousands of unserved warrants), is urging his "supporters" to become actively involved in rooting out voter fraud by being physically present at the polls across Arizona. Presumably, they are going to confront people they do not think may be authorized to vote. Here is what Sheriff Joe said:

STOP ILLEGALS FROM STEALING THE ELECTION! . . . Our grassroots army of VOTER FRAUD PREVENTION VOLUNTEERS will stand vigilant across the nation. We will be the first and strongest line of defense to ensure that only legal citizens vote on November 2nd. . . .(Emphasis in original)

While some might say there is nothing wrong with this call to ensure that only qualified voters register, there are some things to keep in mind. First, there is no evidence of any voter fraud of the kind imagined by Sheriff Joe. Second, this technique is oddly reminiscent of the efforts to stop black Americans from voting after the Civil War--from Answers.com:

QUESTION: Which of the following techniques was used to prevent blacks from voting in the south during the late 19th century?

ANSWER: The end of the Civil War, the period of Reconstruction, and the 15th Amendment to the United States Constitution were attempts to protect the rights, including voting, of the ex-slaves, especially in the states of the defeated Confederacy. The first attempt involved threats, violence, and scare tactics. . . .

So, you decide where the truth stops and the fabrications begin.

Sheriff Joe now says that he did not authorize this email. Well, he may or may not have authorized it, but it sure sounds like him!

For sure, we must remain vigilant against people that would bring the bogeyman back in whatever form. Inciting fear and hatred works. It is for good people everywhere to stand up and say--"No More." The failure of our Congress to fix our broken immigration system allows politicians like Sheriff Joe to demagogue this issue and use it to drive a wedge through our society. Wouldn't you like Congress to finally fix the system that causes and permits this divide to exist? Don't hold your breath. Politicians from both parties benefit too much from not fixing the immigration system.