Notes From Babel

Archive for the ‘Immigration’ Category

Letter about Hispanic Students in Glendale Spurs Controversy

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A shocking letter written by a Glendale, Arizona middle school teacher.


Written by Tim Kowal

March 26, 2011 at 12:30 pm

Posted in Immigration

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Birthright Citizenship, and What It Means to Be “Subject to the Jurisdiction” of the U.S.

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Last week, Shikha Dalmia at Reason ran this highly disingenuous and disappointing policy rant against the push by several states to enact stronger laws to curb illegal immigration.  In it, Dalmia falsely claims that “automatic or birthright citizenship” is “a right enshrined in the 14th Amendment,” erroneously explaining that

the 14th Amendment is unusually clear about extending citizenship rights to everyone born on American soil except for children of foreign diplomats and American Indians (who belong to sovereign tribes). Eliminating these rights for anyone else will require three-quarters of the states to ratify another amendment.

Frankly, I don’t know how to explain these claims other than an outright intent to mislead.  In fact, the question of whether birth on U.S. soil is enough, or whether only “children of foreign diplomats and American Indians” are excluded rather than anyone not “subject to the jurisdiction thereof” as the Fourteenth Amendment actually states, is a contentious issue that many constitutional experts are currently vigorously debating.

In my ongoing research into this area of law, I’ve come across some interesting cases shedding insight on the concern in British case law concerning persons born on British soil yet subject to the jurisdiction of a foreign sovereign.  Various European countries grappled with the problem of children born to citizens of foreign nations. In such instances, it is clear that children followed the citizenship of the father, but faith and credit to the jurisdiction of the country of birth was also given. Recognition of the proper jurisdiction to which a person was subject was important since the laws of one nation may purport to conscript putative citizens of a foreign nation into military service, potentially pitting those persons against his adopted country. See Prentiss Webster’s A Treatise on the Law of Citizenship in the United States: Treated Historically (Bender 1891), at 58-59. In this light, it is easy to see the concern against extending citizenship, the right to participate in the legislature, or of becoming the Commander-in-Chief of the United States military forces, to a person subject to the jurisdiction of a foreign power.  For example:

This rule was laid down at an early date in the state of Massachusetts as follows: “This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.” Ainslie vs. Martin, 6 Mass. Rpts.

Id. at 78.  Similarly,

The Revised Statutes, section 1993, declare children born out of the limits of the United States, whose fathers were or may be at the time of their birth, citizens of the United States, to be citizens of the United States.

This statute is held to mean that the legislation of the United States should not be construed so as to interfere with the allegiance which such children so born owe to the country of their birth, while they continue within its territory. Under this, if the French government should see fit to hold Verdelet as a citizen of France for reason of birth within its territory, it might do so, and the government of the United States could not interfere with such a claim, if made by the French government upon him.

Id. at 119. This appears to give insight into the understanding of the “and subject to the jurisdiction thereof” clause: U.S. law was not meant to interfere with the jurisdiction other sovereigns might have over persons born or naturalized in the U.S.  In a government of consent such as the United States, consent may not be presumed to be given, and thus no citizenship may be conferred, where another sovereign lays claim to the person’s allegiance.

Arizona Looks to End Birthright Citizenship

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Though I previously threw in my support for the basic idea underlying the DREAM Act, I support the proposal in the Arizona Senate Judiciary Committee to deny birthright citizenship.  In fact, my post on the DREAM Act should indicate, the two laws would be complementary:  Illegal immigrants should not be able to count on their unlawful entry and occupation in this country being rewarded with de facto (and arguably de jure) citizenship of their children; but neither those children or the communities who have invested in them should be so grievously harmed by alienating those children from their communities. 

Besides—and this is probably enough reason for me—there would be enormous value to airing out the meaning of the Fourteenth Amendment: 

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.

As my constitutional law professor John Eastman testified before the senate panel:

"Suppose a tourist from Great Britain was here visiting on a temporary tourist visa. He is subject to our jurisdiction in that he has to follow our laws while here, but he is not subject to the jurisdiction in broader sense that he could be drafted into our army or that he is allowed to vote while here," Eastman said. "There are two different meanings of subject to jurisdiction. This bill is simply trying to define what ‘subject to the jurisdiction’ means."

One of these days, I will get around to posting the results of my research on the Natural Born Citizenship and the Birthright Citizenship clauses.  The universal concern in western jurisprudence throughout the 18th and 19th centuries had to do with complete jurisdiction:  the nominal jurisdiction imposed on those merely passing through was not enough to impose sovereignty on a person or that person’s offspring.  This was the understanding of the “subject to the jurisdiction thereof” language in the Fourteenth Amendment as debated in Congress (though James Ho—like Eastman, a Justice Thomas clerk—disagrees). 

Written by Tim Kowal

February 7, 2011 at 11:22 pm

Why the DREAM Act Should Be Passed, and Why It Won’t

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Having recently blogged about what I called the “Muslim PR Problem,” I think this article about the DREAM Act also indicates sort of PR problem with respect to immigration:  The Act is a good idea that fails to gain traction with most conservatives not because they fail to recognize its merits, but because they are all too aware of the overarching immigration context and the intentions of lawmakers who view the Act as a tool toward broader amnesty and open immigration objectives.

Friedersdorf is correct when he says the broad consensus of American opinion is to control the borders.  This does not mean Americans don’t appreciate a good made-in-the-USA story about a poor immigrant who accedes to great heights in America.  This is no mere concession:  such stories resonate with Americans’ sense of American exceptionalism, of pride in the American culture, in the particularities of our national, state, and local societies that make ours a different and better society than any other in the world.  And it aligns with Booker T. Washington’s views about race in America when he said:

I think that the whole future of my race hinges on the question as to whether or not it can make itself of such indispensable value that the people in the town and the state where we reside will feel that our presence is necessary to the happiness and well-being of the community.  No man who continues to add something to the material, intellectual, and moral well-being of the place in which he lives is long left without proper reward.  This is a great human law which cannot be permanently nullified.

To the extent the DREAM Act applies to those immigrants who are already part of the American society, it is hardly objectionable that they should be also made part of the American citizenry.

However, my initial reaction to the DREAM Act was negative. And I think the last paragraph quoted from Reihan Salam explains why:  that the Act “is a wedge strategy designed to begin the process of earned legalization for the large population of unauthorized immigrants currently living in the United States, and we don’t have the will or the resources for a serious campaign of attrition or repatriation.”

This is where I profoundly break with Friedersdorf, and would disagree that his view represents the “broad consensus”: This is not “a persuasive argument for passing the legislation.” To the contrary, the very possibility of amnesty for all illegal aliens—rather than the ones who have demonstrated they have embraced our American community and have been integrated into it, such that both us and them would be harmed by extricating them from it—is the reason why people fear taking even modest steps toward extending citizenship, such as the DREAM Act.

This is a PR problem.  Conservatives and moderates know that liberals want amnesty, and thus they suspect that legislation like DREAM is just a clever, tug-of-the-heartstrings way to crack open the barn door to get at that ultimate goal.  Thus, for those of us in the “broad consensus” on immigration, all the “won’t somebody please think about the children” rhetoric sounds fishy:  If we’re truly meant to think about the children, then why stop with the smart ones or the ones willing to serve in the military? Why not all of them?  Democrats do not extol the importance of American culture and community because this is clearly not what’s important to them.  Their end-game is amnesty for all immigrants, even those who have not demonstrated they have the ability or desire to become part of American society in anything by a positive legal sense.  Thus, Democrats’ “think about the children” rhetoric disserves the Act because it tips its principal proponents’ hand to their ultimate, troublesome goal of wholesale amnesty.

Instead, I think the right way to go here is to take the DREAM Act’s distinction seriously: not only are there certain kinds of illegal immigrants who should be given a path to citizenship because they have already made themselves integral to our communities, but there are other kinds of illegal immigrants to whom amnesty should not be extended precisely because they have not made themselves integral to our communities.  While folks might not be able to change whether they are “foreign” to our laws, they can change whether they remain “foreign” to our society.  That kernel of truth is what appeals to the “broad consensus” of Americans about the DREAM Act.  Yet, that consensus also still sees that Act as a ploy in liberals’ immigration agenda.  And that is why it failed to gain the even broader consensus it deserves.

Written by Tim Kowal

December 14, 2010 at 1:00 am

Posted in Immigration, Politics