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« on: August 27, 2010, 04:39:14 PM » |
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The Patriot Post - Alexander's Essay 8-26-2010
From The Federalist Patriot
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Birthright Citizenship?
By Mark Alexander · Thursday, August 26, 2010
Only if your mother was "subject to the jurisdiction thereof" (Ciudadanía por Nacimiento -- sólo si su madre estaba sujeta a su jurisdicción)
"The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment." --George Washington
Given the far-reaching implications of illegal immigration, and more recently the Left's objections to enforcing immigration law in border states like Arizona, the 14th Amendment1 of our Constitution is receiving some long-overdue attention.
Like every contemporary political debate, the questions raised concerning the meaning of the 14th Amendment are, essentially, about whether we are a nation subject to Rule of Law2 codified in our Constitution, or we are subjects under the rule of men, subject to a "living constitution3" amended primarily by judicial diktat and legislative mischief, rather than amended by the people, as prescribed in Article V.
Does the 14th Amendment mean what its framers intended and the states ratified, or does it mean whatever the courts and Congress have construed it to mean today?
Section 1 of the 14th Amendment, which pertains to immigration and naturalization, reads, "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."
To discern the authentic meaning of this amendment as originally intended by its framers, we must first start with its plain language, and then further examine the context under which it was proposed and passed. Any debate about the authority of our Constitution must begin with First Principles4, original intent.
"All persons born or naturalized in the United States..."
This language is plain and easily understood.
"And subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
This language, too, is plain and easily understood, unless there is a contemporary Leftist political agenda, which does not comport with that understanding, in which case benefactors and beneficiaries of that agenda will interpret (read: misconstrue) it to fit their purposes.
So, what does "subject to the jurisdiction thereof5" actually mean? Beyond the apparent plain language definition, a factual interpretation is supported by the context in which this amendment was framed and ratified.
After the War Between the States, freedmen (former slaves) may have been liberated by Abraham Lincoln's6 1863 Emancipation Proclamation, but they didn't enjoy the same rights as those who freed them. Though slaves were in the United States legally, and thus, "subject to the jurisdiction thereof," they had no assurance of equal rights.
The Civil Rights Act of 1866 was designed to rectify this injustice by noting in part, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
The first definition of "citizenship" in legal references is "nationality or legal status of citizenship."
The 1866 act defined "persons within the jurisdiction of the United States" as all persons at the time of its passage, born in the United States, including all slaves and their offspring.
However, concern that the Act might be overturned by a future Congress motivated its sponsors to make it more resistant to the arbitrary rule of men, so they proposed the 14th Amendment to our Constitution, which upon ratification, would protect the provision of the 1866 Act from legislatures and the courts. |
