June 30, 2009 1:28 PM
Immigration 101 tracks my course on Immigration Law at Hofstra University School of Law. It is designed to give you an understanding of the policies behind our often confusing and conflicted immigration laws.
During the mid-1990s I debated a California-based anti-immigrant activist named Ron Prince. Prince had the then novel idea that a child born in the United States was not a U.S. citizen if her parents were undocumented immigrants. His argument seemed foolish at the time and enjoyed little support beyond a few wingnuts. Little did I know that ten years later it would be championed by conservatives nationally and would lead pols like our own Steve Levy, to label the children of immigrants as “Anchor Babies”.
Michelle Malkin, one of the most prominent of those attacking the American citizenship of children born to non-U.S. citizens, says that "the custom of granting automatic citizenship at birth to children of tourists and temporary workers such as [Yaser Esam] Hamdi, tourists, and to countless 'anchor babies' delivered by illegal aliens on American soil, undermines the integrity of citizenship—not to mention national security". Of course, it should be noted that Malkin herself was born to Philipino parents, Rafaela and Dr. Apolo Maglalang, while they were in the United States on student visas.
Georgia Congressman Nathan Deals, who is running for governor, has taken active steps on this issue: “To demonstrate my concern with the multifaceted problems created by this so-called birthright citizenship, I introduced in this Congress H.R. 1567, the Citizenship Reform Act. Specifically, my proposed legislation would do away with the practice of granting such citizenship by amending the Immigration and Nationality Act to limit automatic citizenship at birth to a child born in the United States to a parent who is a U.S. citizen or lawful permanent resident.”
Of course, Deals bill would mean that people like Malkin could no longer be U.S. citizens and under its regime she would be facing deportation. Now you may be asking “Pat, why is is deporting Malkin a problem”.
Let me tell you.
Malkin refers to “automatic” citizenship at birth as a “custom”. Well, it was not a custom during the early 1800s. Only certain children born in the United States were considered citizens before the Civil War.
Children born to African slaves and their descendents in the United States were not American citizens until after 600,000 people were killed in the Civil War. Malkin may be unfamiliar with the case, but the Supreme Court decided in the Dred Scott decision that even in “free” states, African Americans were not United States citizens:
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
The notion, central to the Dred Scott decision, that a black man had “no rights which the white man was bound to respect” was an article of law that helped lead to the Civil War. And bound up in that doctrine was the rule that a child's citizenship depended on his or her parents' legal status.
So when did the “practice”, as Congressman Deals would phrase it, of granting citizenship at birth come about? We look to post-Civil War history for its origins.
And we find that “birthright citizenship” was neither a “custom” nor a “practice”, it was a Constitutional right.
A right created by the 14th Amendment.
The 14th Amendment was ratified in 1868 to put an end to practices in many states in which African Americans were freed from legal bondage, but denied citizenship. State laws often held that freed slaves were not citizens, nor were their children. In other words, that conditions of prior servitude made them ineligible for citizenship.
While Malkin does not seem to be aware of the 14th Amendment, at least Congressman Deals appears to have heard of it. His legislation would “clarify” the interpretation of the 14th Amendment so that it would reflect its framers supposed intent of not covering children born to anyone other than U.S. citizens or Legal Permanent Residents. A rather strange “clarification” because the United States government did not even have a status called Legal Permanent Residence at the time the amendment was first adopted!
Considering the call for “clarification”, you could be forgiven for thinking that the 14th Amendment was pretty ambiguous on this whole “who’s a citizen” question. Not the case at all. Here is what it says: "all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." A single exception is made for the members of Native American tribes if they were not subject to taxation. Generally speaking, you cannot “clarify” an unambiguous part of the Constitution with mere legislation. If you want to change the Constitution, you need to amend it, through the process prescribed in the Constitution itself.
But wait! Our friends at the anti-immigrant hate group FAIR say that the amendment is ambiguous. They claim that the phrase "subject to the jurisdiction" of the United States means that the 14th Amendment “was intended to exclude from automatic citizenship American-born persons whose allegiance to the United States was incomplete. For example, Native Americans were excluded from American citizenship because of their tribal jurisdiction.”
The problems with this line of thinking are multitudinous. First, Native Americans not subject to taxation are specifically named as a separate exception to the citizenship clause. They are not an example of a group, they ARE a group. Second, the term “subject to the jurisdiction” of the United States means persons whom the U.S. courts and governmental agencies have jurisdiction over. So who would be someone living in the U.S. whom the U.S. government does not have jurisdiction over? The most common example is a diplomat or someone else who could claim “diplomatic immunity”. The phrase “diplomatic immunity” itself refers to the immunity of a diplomat to the laws of the country in which he is posted. Immigrants, legal or illegal, are subject to United States jurisdiction, whether they like it or not. In other words, if an undocumented alien commits a crime, he cannot demand to be released from police custody because the government does not have juridiction over him.
So FAIR's argument is both wrong and deceptive.
FAIR raises another ridiculous argument against granting citizenship at birth to the child of an undocumented parent:
“In the case of illegal aliens, their native country has a claim of allegiance on the child. Therefore, some Constitutional scholars argue that the completeness of the allegiance to the United States is impaired and logically precludes automatic citizenship. However, this issue has never been directly decided by the U.S. Supreme Court.”
Now, I’m guessing it would be pretty hard to gauge “the allegiance” of any newborn. And “this issue has never been directly decided by the U.S. Supreme Court” because it is so darned stupid.
Think about it. If a newborn has to demonstrate the “completeness of [his or her] allegiance to the United States” to be a citizen at birth and if that allegiance is defeated if the parents “native country has a claim of allegiance on the child” then a whole lot more kids than just the children of the undocumented would be denied United States citizenship.
Most countries, like the United States itself, confer citizenship on children of their nationals who give birth in other countries. In other words, a child born to two English parents living in the United States as permanent residents is an English citizen at birth. So if we accept the FAIR proposition that a child born in the U.S. upon whom another country could make a “claim of allegiance” is not a U.S. citizen, then we would have to conclude that not only the children of undocumented immigrants, but also the children of Legal Permanent Residents born in the U.S. would be denied U.S. citizenship.
And why stop at a child with two Legal Permanent Resident parents. A child born to a Legal Permanent Resident and a U.S. citizen would similarly have a “claim of allegiance” by the non-citizen parent’s country, and so be denied U.S. citizenship under FAIR's "divided allegiance" rule. Lacking citizenship, or any legal status prior to Immigration Service processing of a relative petition, the newborn could presumably be taken into custody by ICEBaby for deportation as an illegal alien!
An alternative argument has been suggested by the anti-immigrant movement’s "deep thinkers". That is that the drafters of the 14th Amendment intended it to only apply to freed slaves and that any other reading of it is somehow an insult to African Americans. In other words, the only "persons" the 14th Amendment was designed to protect were Black. This was the argument Ron Prince tried out on me. Of course, the framers of the amendment could have referred to “all African Americans, born or naturalized in the United States” instead of its actual language “all persons, born or naturalized in the United States” in defining who is a citizen.
And the anti-immigrant pseudo-scholars have a legal problem with this interpretation as well. The U.S. Supreme Court was presented with this very issue more than 100 years ago. At the time, the U.S. government was trying to declare virtually all Chinese immigrants as "illegal aliens" and deport them. The government argued that the children of Chinese parents born in the United States were not protected by the 14th Amendment and were, therefore, not U.S. citizens because that amendment was meant only to protect freed slaves. Here is what the Court said in United States v. Wong Kim Ark in 1898:
“Its main purpose doubtless was…to establish the citizenship of free negroes… . But the opening words, “All persons born” are general, not to say universal, restricted only by place and jurisdiction, and not by color or race…”
The Supreme Court even dealt with the issue of what the term “subject to the jurisdiction” of the United States means, saying that it only applies to two groups of people, the children of “alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state”. In other words, diplomats and the children of soldiers invading our country. The decision also takes up, and flatly rejects, FAIR’s argument that the exclusion of Indians not subject to taxation somehow supports an argument for excluding other groups from citizenship. The Court says that the Indian exclusion “had no tendency to deny citizenship to children born in the United States of foreign parents”. We may not like the mistreatment of Native American children, but is obvious from the decision that the Indian exclusion was not to be applied to other groups. I wonder why FAIR’s “constitutional scholars” never heard of this case?
The final argument that Ron Prince made against the application of the 14th Amendment to the children of the undocumented is that the drafters of the 14th Amendment did not explicitly exclude “illegal immigrants” because the very concept of being here illegally did not exist. In other words, since there was no concept of "illegal alien" at the time the amendment was adopted, it could not have been intended to protect the children of the undocumented.
Now Prince was correct in noting that there was not a comprehensive immigration system before 1892, but there definitely were immigration laws by the time of the Civil War and immigrants were being arrested and deported for having violated them.
Any real legal scholar has easy access to this history in Columbia Law School Professor Gerald L. Neuman’s seminal article The Lost Century of American Immigration Law published by Columbia Law Review in December, 1993. Prior to the crafting of comprehensive Federal immigration laws, regulation of immigrants was a hodgepodge of Federal and state legislation. But there were definitely people who arrived in the United States who were considered to be here illegally. Professor Neuman concludes his survey of the subject by saying that “it seems fair to say that ‘illegal aliens’…have always existed in the United States. They are not a new phenomenon that could not have been contemplated by the Framers of the Constitution, or of the Fourteenth Amendment”.
In the next installment of Immigration 101, I’ll look at what the implications would be if I am wrong.[(Don't worry, I'm not.]
Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.
Here is the current list of articles in this series.
Immigration 101 Overview of the Immigration System
Immigration 101 Employment Based
Immigration 101 Family Based Immigration
Immigration 101 So what makes up a family
Immigration 101 History We need a new Ellis Island
Immigration 101 Coming to the U.S.
Immigration 101 Stopping 'em at the border
Immigration 101 Don't Give Me Your Poor
Immigration 101 Free Speech Part 1
Immigration 101 Free Speech Part 2
Immigration 101 Keeping the Chinese Out Part 1
Immigration 101 The Chinese Exclusion Act Cases Part 2
Immigration 101 Employer Sanctions Part 1 Introduction
Immigration 101 Employer Sanctions Part 2 How employers evade the law
Immigration 101 Employer Sanctions Part 3 The impact of sanctions on immigrants
Immigration 101 ICE Storm-An on the ground look at raids
Immigration 101 Sept. 11 and immigration
Immigration 101 How the Sept. 11 Hijackers got into the United States
Immigration 101 Becoming a Citizen Pat 1
Immigration 101 Becoming a Citizen Part 2 Good Moral Character
Immigration 101 Becoming a Citizen Part 3 English
Immigration 101 Becoming a Citizen-Part 4 What is an American?
Immigration 101 Becoming a Citizen-Part 5 What does an American believe?
Immigration 101 Becoming A Citizen Part 6 A confident view of who we are
Immigration 101 Political Asylum-Part I
Immigration 101-Refugees and the rise of Fascism and Communism
Immigration 101-The creation of modern Refugee Law
Immigration 101-Ronald Reagan and the subversion of refugee law
Immigration 101-What is a refugee?
Immigration 101-Asylum "Race, Religion, Nationality, Political Opinion, Social Group"
Immigration 101-When is a refugee not a refugee?
The more we become a nation of illegal immigrants, the deeper we fall into anarchy.
- Congressman Elton Galleghy
We have all the laws needed to secure our border, stop illegal immigration, cease the employment of illegal immigrants and deport them as they are discovered.
Mass amnesty didn't work in 1986, as it only begetted more illegal immigration and caused our current crisis and amnesty won't work now. Instead of 'comprehensive immigration reform' (amnesty) let's demand 'comprehensive immigration enforcement'.
By zeezil July 3, 2009 02:13 PM
Glad to see neither you nor Galleghy could poke any holes in my analysis!
Keep on chanting your empty slogans. The American people have learned to stop listening to your potted "solutions" that ignore reality.
By Pat Young July 3, 2009 02:20 PM
Funny how you look to everything EXCEPT the congressional globe where the authors and voters of the 14th amendment clearly say what is meant.
All persons born or naturalized in the United States, and SUBJECT TO THE JURISDICTION thereof, are citizens of the United States and the States wherein they reside.
The author of the citizenship clause, Sen. Jacob M. Howard (MI):
"This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. "
It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil, something our courts have wrongfully assumed.
But what exactly did "subject to the jurisdiction thereof" mean to the framers of the Fourteenth Amendment?
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:
"[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
"Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."
Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now.
Sen. Johnson:
"[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States."
Note the last: BORN TO PARENTS WHO AT THE TIME WERE SUBJECT TO THE AUTHORITY OF THE UNITED STATES. = Under the jurisdiction of the United States
No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:
"In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States."
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
"[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..."
The U.S. Constitution was based upon the encyclopedic "The Law of Nations," a treatise written in 1758 by Swiss lawyer and diplomat Emerich de Vattel as a manual for how government should function. Book I, Chapter XIX, part 212, codified the definition of "Natural born citizen" as jus soli jus sanguinus: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
The doctrine of original intent relies upon long-settled rules of contract interpretation.
"The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense and the terms and the intentions of the parties."
~Justice Story, Commentaries on the Constitution of the United States Vol. III, p.. 383 §400 (1833)
Joseph Story was appointed to the U.S. Supreme Court by James Madison and served between 1811-1845. He was elected President of Harvard Law School and is considered by many to be the father of American jurisprudence due to his prolific contributions to American law.
"On every question of construction, carry [y]ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
~President Thomas Jefferson, Letter to Supreme Court Justice William Johnson, June 12, 1823
"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense."
~James Madison, Letter to Henry Lee, on June 25, 1824. Madison is considered the "father of the Constitution" by many Constitutional scholars.
In other words, in order to correctly understand what the parties to a contract intended, a court should look to the circumstances surrounding the execution of the contract, e.g., writings, phone calls, letters, memorandums, etc. In the same way, when analyzing any clause or amendment of the Constitution, the Supreme Court should first discover the "original intent" of the parties to the document by looking to the events surrounding the drafting and passing of the clause or amendment, including the records of the Constitutional convention and the writings of the Framers.
If, H.R. 1567 does indeed state the same things that the founders of Amendment 14 then Yes, it is a "clarification".
Judges and Justices can't "make" laws, when they either do not take the time to look at the evidence (the Constitution, the records of debates, papers from the people who authored and voted, etc.) or ignore it for their own purposes, the true law gets twisted into something it is not thereby in essence becoming a "new" law... They don't have this authority and as it contradicts the Constitution it is Null and Void... the ruling has no merit.
By DreamCatcher July 10, 2009 07:38 AM
Dear Dreamcatcher,
If, as you say,
"only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now"
then millions of people born to permanent resident parents, as well as to other non-citizens like those here on student visas, are not U.S. citizens. Quite a revolution in the understanding of the 14th Amendement if your view were to be adopted by the courts!
Luckily though, your argument, which works great when fundraising among anti-immigrant rubes, is a non-starter legally.
Too bad you didn't read the quotes you yourself posted. They offer ample evidence for the accepted view that the 14th Amendment is expansive.
You offer the following quote from Sen. Howard in support of your citizenship-stripping proposition:
"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. "
Note that Howard says that the children of ambassadors or foreign ministers will not be citizens. This is a point I have already made in the article. Howard also says that "persons born in the United States who are foreigners, aliens" will not be U.S. citizens, but he does not say that the CHILDREN of "foreigners" or "aliens" will not be citizens.
You also seem to ignore Howard's extremely strong point that the 14th Amendment's "birthright citizenship" clause "will include every other class of persons". If this meant the 14th Amendement only covered the children of citizens, why didn't he simply say that? Why use such inclusive language if his intent was to exclude everyone who was not the child of a citizen?
Your quote from Senator Williams equally fails to support your point. He says:
"In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians."
As I have stated in the article, Congress was clear that the children of ambassadors and certain members of Indian tribes were not subject to the juridiction of the United States. In the case of ambassadors, this was under the well-known doctirne of diplomatic immunity.
Your quote from Senator Trumball also tediously once again makes my point that ambassadors and certain Indians were an exception to the "all persons" rule:
"Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws"
You couldn't "Sue a Navajo" and you couldn't throw an ambassador in jail for an assault, but you can sue an immigrant and you could throw an "illegal alien" in jail for robbery. Hence, while living in the United States, foreign-born persons other than diplomatic personnel and members of invading armies are "subject to the juridiction" of American courts.
Your citation from Vattel is sweet, and you might want to let Justice Scalia know that he is bound by international law, but it is beside the point. Vattel wrote ?The natives, or natural-born citizens, are those born in the country, of parents who are citizens.? The problem with this, of course, is that the 14th Amendment was "intended" to alter prior existing definitions of American citizenship.
Let us remember, first of all, that the Cconstitution drafted in 1787 made citizens out of people whose parents had not been citizens of the United States. It even made citizens out of people not born in the colonies which became the United States. Recall that Alexander Hamiliton and Constituitonal framer James Wilson, as well as many of our other forefathers were born in Europe or the West Indies. But, as the Dred Scott Decision brought home, it did not make citizens out of many people born in the territory of the United States, including most African Americans. The citizenship status of the children of other non-Whites was also questioned.
So telling me that the Framers were relying on Vattel in 1787 does not tell me much about who is a citizen TODAY. The 14th Amendement resolved the ambiguity by creating an extremely inclusive definition of citizenship jus soli. And as any second year law student knows, a Constitutional amendment has priority over customary international law.
As for your understanding of the construing of a contract, try and introduce what the salesman told you the contract meant the next time you have a problem with your car! We also have a little something called the Plain Meaning Doctrine wherein if something is plain, like the words "all persons", then the thing is settled.
A final note: We have had a strong anti-immigrant movement in this country since even before the passage of the 14th Amendment. If this question of "birthright citizenship" was really so up in the air, why hasn't it EVER been successfully challenged?
The so-called "Birthright Citizenship Question" is really no question at all. It is simply a marketing tool devised by anti-immigrant groups looking to fundraise among rubes too ignorant to challenge the legal gobbledeegoop peddled by these charaltans. If FAIR really believed it had a case, it would have filed suit years ago. Instead, it benefits by not filing a suit, which would be dismissed before the ink on the papers dried.
Isn't it interesting that FAIR's "legal scholars" of dim academic pedigree have such a hard time preparing the most basic of constitutional challenges for court of any but the ignorant?
By Patrick Young July 10, 2009 09:55 AM
"then millions of people born to permanent resident parents, as well as to other non-citizens like those here on student visas, are not U.S. citizens."
Exactly!
"If this meant the 14th Amendement only covered the children of citizens, why didn't he simply say that? Why use such inclusive language if his intent was to exclude everyone who was not the child of a citizen?"
Because technically and legally they aren't citizens yet... not until this amendment passes.
Vattel isn't "international law"
"but he does not say that the CHILDREN of "foreigners" or "aliens" will not be citizens. "
"The problem with this, of course, is that the 14th Amendment was "intended" to alter prior existing definitions of American citizenship. "
Prior to the ratification of the 14th Amendment, there was no legal definition of a "citizen of the United States", as everyone had primary citizenship in one of the several states. The Constitution referred to the sovereign state citizen, and no one else. Post-Civil War reforms focused on injustices to African Americans. The 14th Amendment was ratified in 1868 to protect the rights of native-born Black Americans, whose rights were being denied as recently-freed slaves. It was written in a manner so as to prevent state governments from ever denying citizenship to blacks born in the United States. But in 1868, the United States had no formal immigration policy, and the authors therefore saw no need to address immigration explicitly in the amendment.
"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..." ~Senator Edward Cowan
The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.
"try and introduce what the salesman told you the contract meant the next time you have a problem with your car!"
"telling" is written down or recorded. duh.
By DreamCatcher July 10, 2009 05:09 PM
"duh"? You said you look to "phone calls" to determine the meaning of a written contract. "Duh" indeed.
Glad to see you agreed with my assessment of this implication of your view of the 14th Amendment:
"'then millions of people born to permanent resident parents, as well as to other non-citizens like those here on student visas, are not U.S. citizens.'
Exactly!"
I don't think too many Americans will take kindly to an analysis that might rob them of their citizenship!
As for this statement by you:
"The phrase "subject to the jurisdiction thereof" was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship."
Similar "incomplete allegiance" could be alleged for any child of a foreign born parent who has not extinguished his or her native country's "claim" upon the child. If the extinguishment of all possible alternative "claims of allegiance" upon a newborn was a requirement for U.S. citizenship under the 14th Amendment then our own citizenship would depend upon the vagueries of foreign citizenship laws.
And yes, I understand the historical context of the 14th Amendment, and no, that does not change the meaning of the 14th Amendment to make it only apply to the children of slaves.
Sorry, but if your analysis held any water, the groups arrayed against immigrants would have filed suit long ago to challenge "birthright citizenship".
By Pat Young July 10, 2009 06:01 PM
""duh"? You said you look to "phone calls" to determine the meaning of a written contract. "Duh" indeed."
do you not realize or know that records of calling someone can be important to a case ans so can recorded phone calls and messages.?
"Similar "incomplete allegiance" could be alleged for any child of a foreign born parent who has not extinguished his or her native country's "claim" upon the child."
Exactly!
By DreamCatcher July 10, 2009 06:16 PM
As for Dreamcatchers statement that Vattel is "not international law", true, but his book is a treatise on international law, and was widely circulated in the United States as part of the "Library of International Law"!
http://www.scribd.com/doc/12711673/Vattel-The-Law-of-Nations-or-the-Principles-of-Natural-Law
So I stand by my earlier remark.
Also, I note that while 99% of our readers probably heard of Vattel for the first time right here on this blog post, he enjoyed a remarkable rebirth on the far right last year when his definition of "natural born citizen" became the foundation of one the so-called "birther" Obama conspiracy theories. Those interesting folks believe advocating this theory believe that since Obama's father was not a U.S. citizen, Obama is not a "natural born citizen". This is a more sophisticated version of the more widely known "birther" theory that Obama was born in Kenya!!!
The Vattelistas also seem to neglect the influence of Blackstone's defintion of a citizen which is amenable to the points I have made. Now just about anyone who has a college degree knows about the influence of Blackstone on American law.
If Vattel is the superior influence over Blackstone, then perhaps I am an illegal immigrant and Obama is not president. But these propositions will not be tested in our courts because they are ludicrous.
By Pat Young July 10, 2009 06:30 PM
If not Vattel, then where did they arrive at the term "natural born citizen"?
Many of those who ridicule birthers like to quote Blackstone as authoritative that the United States adopted English Common Law. They like to state that Blackstone’s natural born subject is equivalent of a natural born citizen.
There is no doubt that the Founding Father’s were influenced from Blackstone’s Commentary. However, the Framers of the Constitution recognized that it was Blackstone, who argued that the Parliament and King could change the constitution at will. Blackstone was increasingly recognized by the Americans as a proponent of arbitrary power. In fact, the framers rejected the notion that the United States was under English Common Law, “The common law of England is not the common law of these States.” George Mason one of Virginia’s delegates to the Constitutional Convention.
As to what is a natural born subject, Blackstone went on to say that any person, freeman or alien, except those of diplomats who were born in the realm of the King of England was a natural born subject. There is a problem with a simple substitution of citizen in place of subject, that some people think are synonymous. In England, not all natural born subjects of the Crown can become the King. This is reserved for a very small subset of natural born subjects called the royalty. This is drastically dissimilar to the American concept that any Natural Born Citizen can become President. Under Blackstone’s subjects only a very, very small subset of Natural Born Subjects could rise to be King, the American Presidency is drawn from the largest class of citizens, the natural born. Like the analogy of a field of clover, the Founding Fathers were not looking for that elusive genetic mutation of a four-leaf clover, they were looking for the common, naturally occurring three-leaf clover to be President.
But Blackstone is confusing on this issue. Blackstone also writes,
“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
This use of Blackstone gave Great Britain claim over US Citizens, which lead to the war of 1812, when Britain went about impressing American sailors into their navy because English law did not recognize the right of our Founding Father’s naturalizing themselves into our new country. “Once an Englishman, always an Englishman,” was the reason the British used to impress our citizens into service for the Crown. This law and concept of claim to the subjects to the Crown, regardless of place of birth is still in effect in Great Britain, and had the effect of Congress passing a law that required all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. (Journal of the House of Representatives of the United States, February 9, 1813) Further, the Crown passed a law that made it treason for former British subjects, even though they were now American citizens to participate on the side of America during the war of 1812. (Journal of the Senate of the United States of America, February 23, 1813) to.
If the Founding Fathers accepted Blackstone’s definition of a natural born subject, then impressments of American-British citizens into the Royal Navy would not have been a casus belli, for the War of 1812. The fact that Madison included the impressments of American Citizens as a reason for a state of War clearly indicates that they rejected Blackstone’s definition of a natural-born subject.
John Jay’s letter to Washington address this dual and permanent loyalty to England that Blackstone introduces. To George Washington, President of the Constitutional Convention, Jay writes
“Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.”
Jay not only knew of Vattel, , as can be seen from his correspondence with James Madison in 1780 during treaty negotiations with Spain, but he was also a proponent of Vattel as well.
What further discredits Blackstone as being the author of the Natural Born Citizen clause, is the first immigration act passed by our First Congress in 1790. In chapter III we find direct references to Vattel’s assertion that citizenship is derived from the father, in that citizenship was prohibited to children whose fathers have never gave intent to permanently reside of the Untied States.
Interestingly in this same act, we also find the clarification of a Natural Born Citizen, as being one “And 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been a resident in the United States:”
Residency was defined in that same act as someone under oath declaring that they wished to remain and live in the Untied States. It should be noted that the Supreme Court was tasked with defining several phrases in this law, and since Jay was the first Chief Justice of the Supreme Court, and had reviewed the immigration law of 1790. If Jay was in favor of Blackstone’s definition, he remained silent.
To add further proof to the intent of the Founding Fathers literal meaning of Vattel’s definition of a natural born citizen being born of two citizens, and in the country itself, and wanting a natural born citizen having no other claim to his loyalty except that of the United States of America, in 1795 the Congress amended the Naturalization Act of 1790. The Naturalization Act of 1795, which was also signed by George Washington, recognized Blackstone’s commentaries on English Common Law, making children born overseas in the lands under British rule, British Subjects. Even if their parents were American. This act removed the words natural born from children born overseas of American parents, so that no other potentate could lay claim to this person, and thus establish “a presence of influence” in the Executive Branch.
It was the intent of our Founding Fathers to “naturalize at birth” these children, but not give them the status “natural born citizens.” Also in this act of 1795, we see the importance of complete allegiance to the United States for all people naturalized, as this is the first appearance of the oath of allegiance “to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject.” This oath is still in effect today.
If it was not Blackstone who they relied on for defining the term Natural Born Citizen, then the only remaining source is from Vattel.
The question we need to understand is were the founding fathers truly influenced by Vattel, or not.
“Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.” ~Virginia’s Citizenship statue penned by Thomas Jefferson in 1779.
As can be seen Jefferson is equating citizenship of the child to that of the parents, and not the land.
Benjamin Franklin. In 1775, he observed, the importance of the Law of Nations, on the Founding Fathers and he then ordered 3 copies of the latest editions. The Library Company of Philadelphia which holds one of the three copies, lists the 1775 reference to this book, as “Le droit des gens,” from the publishing house of Chez E. van Harrevelt in Amsterdam, Holland, with a personal note to Franklin from the editor of this edition, C.G.F. Dumas. The fact that this particular volume that Franklin ordered is in French is significant, for at that time French was considered by the “family of nations” to be the diplomatic language, and the 1775 edition was considered the most exact reference of Vattel’s Law of Nations.
On December 9th of 1775, Franklin wrote to Vattel’s editor, C.G.F. Dumas, “ I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the Law of Nations. has been continually in the hands of the members of our congress, now sitting. Accordingly, that copy which I kept has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.”
Samuel Adams in 1772 wrote, “Vattel tells us plainly and without hesitation, that `the supreme legislative cannot change the constitution” Then in 1773 during a debate with the Colonial Governor of Massachusetts, John Adams quoted Vattel that the parliament does not have the power to change the constitution. John Adams as so taken by the clear logic of Vattel that he wrote in his diary, "The Idea of M. de Vattel indeed, scowling and frowning, haunted me.” These arguments were what inspired the clause that dictates how the Constitution is amended.
In the Federalist Papers number 78, Alexander Hamilton also echoed Vattel, and both of the Adams, when he wrote, "fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness." Then in 1784 Hamilton arguing for the defense in the case of Rutgers v. Waddington extensively used Vattel, quoting prolifically from the Law of Nations. The Judge James Duane in his ruling described the importance of the new republic abiding by the Law of Nations, and explained that the standard for the court would be Vattel. He ruled that the Statues passed under the color of English Common Law, must be interpreted from the standpoint of its consistency with the law of nations. This concept of Vattel lead to the creation of the Judiciary branch of our government to insure that Congress could never legislate away the provisions of the Constitution.
In 1794, then President Washington was faced with the first threat to his Neutrality Proclamation of that same year by the Ambassador of France, Citizen Edmond-Charles Genęt to honor their treaty and support France’s wars with England and Spain. In a very rare agreement both Jefferson and Hamilton using Vattel’s Law of Nations they were able to give Washington the international legitimacy not to commit the United States to war in 1793. Genęt wrote to Washington, “you bring forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”
At this point there can be little doubt that the Framers of our Constitution considered both Blackstone and Vattel, and they choose Vattel over Blackstone. The Founding Fathers placed into Constitutional concept that the loyalty of a Natural Born Citizen is a loyalty can never be claimed by any foreign political power. The only political power that can exclusively claim the loyalty of a natural born citizen is that power that governs of his birth. Vattel by including the parents and place removes all doubt as to where the loyalties of the natural born citizen ought to lie, as Vattel’s definition removes all claims of another foreign power by blood or by soil, and is the only definition that is in accord with Jay’s letter to Washington.
All of that (well I left a little out) is from www.thebirthers.org. Of which I agree with most of what is written as it follows the same line as my own research.
"these propositions will not be tested in our courts because they are ludicrous."
No, it is because there are too many "liberals", both legal and illegal in places of power and "influence".
By DreamCatcher July 10, 2009 07:27 PM
“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague.”
~Marcus Tullius Cicero (Lawyer, Writer, Scholar, Orator, Statesman and Roman Constitutionalist)
By DreamCatcher July 10, 2009 07:31 PM
As long as we're clear on all that.
By Pat Young July 10, 2009 08:09 PM
Pat,
Your patience and erudition is remarkable regarding dreamcatcher and his ilk who prefer to "fight it out" in the kangaroo court of uninformed public opinion instead of the court of law. BY dc's argument John McCain would also be an illegal immigrant.
By Melsecond gen July 12, 2009 09:17 AM
Thanks Mel.
When I first read dreamcatchers comment, I thought it was a misguided piece by a fellow with an unusual interest in Vattel. The last time I had read anything talking about Vattel was over a decade ago. Madison and Hamilton were certainly familiar with his writings on international law, although my index to Federalist Papers finds no citation to him, nor does the index to Madison's notes on the Constitutional Convention. How much of an influence on the Framing of the Constitution he had, as opposed to the more traditionally regarded Coke and Blackstone, along with English Common Law jurisprudence, of which our Founding Lawyers were much more familiar, is questionable.
In any event, as Jack Rackove pointed out in his Pulitizer Prize winning study Original Meanings, the back-of-the-mind understandings of Madison or Hamilton about specific words in the Constitution is of doubtful import, since the Constitution, which begins with the phrase "We the People" was ratified by the People through state conventions. So phrases in 220 year old letters not openly shared with the public should not be considered controlling.
In any event, by his second communication, I realized that dreamcatcher was not a legal autodidact, but was instead lifting his quotes, as dreamcatcher later admitted from a "birther" web site-http://www.thebirthers.org/
Just to give you a little taste of the legal reliability of the web site dreamcatcher cites, here are a few excerpts from its homepage:
"We are the Birthers, we are those who are under attack by the Mainstream Media, the once bastions of truth, have become the purveyors of cheap words. They want to mock us by giving us a label to discredit and marginalize us. This is nothing new, when people have no direction they attack those who do.
Labeling and ridiculing the opposition is a tactic of the communist union organizer Saul Alinsky which he detailed in his book, "Rules for Radicals". Specifically that tactic is Rule #5. Obama is the grandmaster of Alinsky smear tactics and ridicule. He learned it well when he worked as a "community organizer" studying Alinsky the father of "community organizing". A community organizer is simply a euphemism for a leader and trainer of radical agitators and street type demonstrations.
These same people use the Alinsky's power tactics in the streets and cyberspace to further their long-term goal following the "Cloward-Piven Strategy" to destroy America's economic system and social fabric and our Constitutional Republic form of government and replace it with totalitarian socialism or fascism.
Lenin and Stalin had the “Bourgeois,” Hitler had the “Untermenschen,” Pol Pot had the “Intelligentsia,” and now Obama has the “Birthers.” People like this have always needed someone to blame for their own inadequacies, a scapegoat for their failures.
They expect us to revere their writings and status as mainstream reporting, they want us to fold like little children being scolded by the teacher. They are blind to their own impotence, so we accept their challenge and feel that it is best and fair that we give them a name too. They lost the right to be called reporters, for they no longer report, they have become distorters of truth. ...
We seek strict adherence to the Constitution of the United States of America, regardless to the momentary passions of the body politic."
By Pat Young July 12, 2009 10:13 AM
To Recap:
The 14th Amendment didn't change the definition of "natural born citizen" as understood by the founders and early Americans via Vattel. It focused on injustices to African Americans, the rights of native-born Black Americans, whose rights were being denied as recently-freed slaves under the doctrine of "separate but equal".
Therefore the Founders (of this Nation) and Framers (of the 14th Amendment) would agree that Obama is not and never was a natural born citizen of the United States because his father was a British citizen.
I think they would also agree that Judges and Justices can't make laws and that by twisting a law to mean almost the opposite of what it was intended not only IS in essence making new laws but also borders on treason.
By DreamCatcher July 12, 2009 02:38 PM
"was instead lifting his quotes, as dreamcatcher later admitted from a "birther" web site-http://www.thebirthers.org/"
Not all of them, just the last on Vattel. :)
I have done my own research, it's just not all in digital format yet.
By DreamCatcher July 12, 2009 02:50 PM
"my index to Federalist Papers finds no citation to him,"
Who wrote the index?
In the Federalist Papers number 78, Alexander Hamilton also echoed Vattel, and both of the Adams, when he wrote,
"fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness."
(please note that there is a process by which this is to be done, debates that show the intent and meaning, and the result will be an amendment to the constitution, not whatever a judge or justice says it means and not for a judge or justice to change what it means)
But what was Blackstone's view on this?...
It was Blackstone, who argued that the Parliament and King could change the constitution at will.
Yet you want me to believe that Blackstone had a greater influence? I don't think so.
By DreamCatcher July 12, 2009 03:16 PM
Dreamcatcher - Obama is a natural-born American citizen, as he was born in Hawaii to an American. It is my interpretation, and those of our fourfathers, that a person born to an American citizen, is a natural-born American citizen. I do not believe, nor did the framer of the 14th believe, that a person born of those in the country illegally (foreignors) are American Citizens. Obama - born in America of an American Citizen - sorry for you, but, we're stuck with him. The majority have spoken and voted him in.
I suppose you also believe that the marriage between Obama's parents was not legal, which would further negate your claim that Obama is not a natural-born citizen.
By Sam July 12, 2009 04:54 PM
And that quote in which Hamiliton "echoes" Vattel has to do with who a citizen is exactly how?
Doesn't matter anyway. The best bit of evidence for the "Vattel Influence" on all things Constitutional that Dreamcatcher can come up with is the quote from Federalist 78. Only that quote is not from Vattel at all. And if it echoes anything, it echoes Madison's earlier language on the ability of the people to both amend and rescind the Constitution, which itself echoed a common line of propaganda from Federalists. This was designed to reassure those worried that the Consitution might not work by reminding them that if that was the case it could be repealed.
What dreamcatcher is doing is fairly common among FAIR acolytes and "birthers". Most Americans are less than conversant about the full set of influences on the "Framers" of the Constitution, so, as dreamcatcher does, they trot out long forgotten 18th Century theorists, find a couple of references to them by Founding Fathers, and then claim the whole damned Consitution is built on this theorist or that. It all relies on no one checking the original sources.
I check.
By Pat Young July 12, 2009 05:14 PM
Do KNOW that Obama Sr. was Legally married before he married Obama's mom?
According to an article in 2008 that marriage "may or may not have been legal."
Now I think if Ann or the courts would have known about it the marriage would have been annulled as apposed to getting a divorce for "mental suffering".
Either way I still don't think it matters. At the time of the Constitution and 14th Amendment, Men had all of the "control". It was the man who could take the child away from the mother legally and raise him wherever and however he wished... the mother had no legal standing then. That's why most women stayed with and followed the men, even to foreign countries.
Vattel wrote:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents [note: plural-both parents] who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
repeat:
"Those children naturally follow the condition of their fathers, and succeed to all their rights."
Because no matter where you are born you always want to know of your father ancestry, history, etc. and are influenced by them because you feel an attachment to them through blood.
Vattel also said:
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed."
As in his father being a British citizen and passed it via blood lineage - nature - to Obama upon birth.
Continue with Vattel's explanation:
By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him.
By DreamCatcher July 12, 2009 06:13 PM
"And that quote in which Hamiliton "echoes" Vattel has to do with who a citizen is exactly how?"
Not to do with who a citizen is, but that he referenced Vattel, not Blackstone.
"that quote is not from Vattel at all. "
Not word for word, no, so it should be "paraphrased vattel".
"it is certain that if the nation is uneasy under its constitution, it has a right to change it. "
nation is "the body of the nation" or rather it's citizens
By DreamCatcher July 12, 2009 07:12 PM
"then claim the whole damned Consitution is built on this theorist or that"
NO I didn't not say the WHOLE Constitution is based on Vattel I said "natural born citizen" was then you implied that they only used Blackstone.
By DreamCatcher July 12, 2009 07:26 PM
"Either way I still don't think it matters. At the time of the Constitution and 14th Amendment, Men had all of the "control". It was the man who could take the child away from the mother legally and raise him wherever and however he wished... the mother had no legal standing then. That's why most women stayed with and followed the men, even to foreign countries."
Dreamcatcher - you are wrong. The 14th was ratified in 1868. Women began fighting for and obtaining the same rights as men in the 1820's (some even earlier), nearly half a century BEFORE the 14th was ratified. Obama was born in 1961, nearly a century after the ratification of the 14th. A lot of things happened during that century. The world is not static. I think you need to brush up on your history. Your "facts" are false.
By Sam July 13, 2009 11:40 AM
Until the early 1900s, fathers were given custody of the children in case of divorce. Many U.S. states then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the tender years doctrine was replaced by the best interests of the child as determined by family courts.~wikipedia
In the early 1900's, fathers were typically given custody of the children in the case of a divorce... Following the standards in the early 1900's which typically gave fathers custody of the children...
Mothers Rights - Child Custody For Mothers
By Steven Carlson
In the early part of the 1900s children were considered property of the father; father custody often took precedent.
www.onlinelawyersource.com
Historically, fathers have been very powerful... in early America judges routinely awarded custody solely to the father... But at the beginning of the 1900s, economic and social changes began to influence the bias of the legal system reguarding granting custody.
The divorced dad's survival book by David Knox, Kermit leggett...
By DreamCatcher July 14, 2009 05:09 AM
"Obama was born in 1961, nearly a century after the ratification of the 14th. A lot of things happened during that century."
But the law didn't change... Neither did the intent or meaning of it.
"I think you need to brush up on your history."
Right back at ya.
I'm done here. :)
By DreamCatcher July 14, 2009 05:16 AM
"Until the early 1900s"
"In the early 1900's"
"In the early part of the 1900s"
"Obama was born in 1961"
1961 is NOT the early 1900's. Did you even read what you wrote? The quotes you put up negate your own statements.
"But the law didn't change... Neither did the intent or meaning of it."
That is correct. The law did not change. Obama was born in Hawaii in 1961 to an American Citizen making him a natural-born American citizen.
By Sam July 14, 2009 11:14 AM
Ok one last time just for you Sam :)
I said:
At the time of the Constitution and 14th Amendment, Men had all of the "control"....
Then you said:
Dreamcatcher - you are wrong. The 14th was ratified in 1868. Women began fighting for and obtaining the same rights as men in the 1820's (some even earlier), nearly half a century BEFORE the 14th was ratified.
I then pointed out that I was right, that at the time of the constitution and the 14th, men had all of the control when it came to children and custody as per the quotes about mothers not being given custody rights until after the 1900s... AFTER 1868 when the 14th was ratified and obviously after the ratification of the constitution.
I was not then and never even implied that I was talking about when Obama was born. I even posted about your comment in a different post.
By DreamCatcher July 14, 2009 04:49 PM
Men did not have all the control when the 14th wa ratified. I already pointed out that women began obtaining rights for control BEFORE the 14th was ratified.
Now, you are using the early 1900's and how men controlled the families to prove that Obama couldn't be a US Citize because his father was not a US Citizen. By the time Obama was born, the father did not have total control over the families. The mother and father had equal control by that time. No matter how you look at it, you are wrong.
By Sam July 14, 2009 05:43 PM
Why couldn't the author of this piece just discuss why he thought various individuals were wrong concerning their interpretations of immigration law instead of taking it a step further by engaging in ad hominem by labelling those with whom he disagrees as haters?
Newsflash:opposing automatic citizenship for the children of those here illegally does not make you a bigot, a hater, etc. Malkin opposes anchor babies (oops, I must be a hater) entirely for the reason that she believes it facilitates the violation of American immigration law, not because she hates Mexicans. Malkin confines her argument to those born to illegal immigrants as a reason to change the law. Regardless of how much you hate her, I think you would have to concede that she is smart enough to figure out that she would not be a citizen if she advocated a revocation of citizenship for those born to parents here legally. And contrary to the smug condescension dripping from the page, Malkin does understand the Constitution, which is why she has pushed for the amending of the Constitution.
By Mark September 1, 2009 11:18 PM
I did discuss why they are wrong.
I did not confine myself to a theoretical discussion because I find the use of the term "anchor baby" for people who are obviously U.S. citizens by birth disgusting. It is an attempt to cast one group of citizens under our Constitution as inferior to other classes of citizens.
Your choice to use that term tells us more about you than it does about the people you demean by that invidious characterization.
By Pat Young September 1, 2009 11:41 PM