Birthright Citizenship?

[LibertyRevolution]

Birthright should only apply to children of american citizens.

 

[therealjjj77]

Good post Erik...



Agreed. And that it also the parallel I was drawing. Once traditional slavery was abolished, illegal workers became the new version of slaves. And like you said, Reagan set them free (again), and the same Amendment to grant citizenship has been applied in both cases. And they are serving the same function in our economy and society.



That would be hard to swallow. It would be fair to those who have been here most of their lives, working. It would be a crime for people who just rushed in to get their amnesty. And there is no way to tell the two apart. Quite a dilemma.



Agreed. All of the other politicians want to continue massive immigration. For their big business special interests and the hope of getting more votes. Can we eliminate politician's incentives to continue massive, uncontrolled immigration?

There are a lot incentives for people to immigrate here. Like Ron Paul has said, the welfare state is one incentive. Like you just said, the promise of amnesty is another incentive.

It is certainly not slavery. In many cases they can make a lot more here then they could at home. They come of their own volition and there is nothing wrong with them getting a job and working. I have no problem with an immigrant working here. What I do have a problem with, is being taxed to subsidize them. I also have a problem with our government hiring them for government jobs. The rest is all free game.

But let's not ignore the elephant in the room. The number one incentive is the jobs that they know they will get. We can not ignore the employers that knowingly employee illegal aliens (or just play dumb about it). When I take a job, I have to produce a birth-certificate, driver's license and social security card. It's a pain, but if other employers ignore that process, they are just as guilty as the immigrants who come here illegally.

Ron Paul needs to add a plank to his immigration program:

- Enforce laws against employers illegally employing workers.

That's unconstitutional and unlawful my friend. The federal government can in no way infringe upon the ability of a human to contract with another human. Let's examine the law:

"These inherent rights have never been more happily expressed than in the Declaration of Independence, the evangel of liberty to the people: 'We hold these truths to be self evident' - words so plain that their truth is recognized upon their mere statement - 'that all men are endowed' - not by the edicts of Emperors or the decrees of Parliament, or acts of Congress, but by their Creator with certain inalienable rights - that is, rights which cannot be bartered away, or given away, or taken away...and to secure these - not grant them but secure them - 'governments are instituted among men'..."
Butchers' Union Co. V. Cresent City Co., 111 U.S. 746, 756 (1884)

It is not the place of the government to grant inalienable rights but to secure them. Is working an inalienable right?

"Included in the right of personal liberty and the right of private property - partaking of the nature of each - is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money and other forms of property."
Coppage v. Kansas, 236 U.S. 1 (1915)

So making contract for the acquisition of labor and other services is a right "included in the right of personal liberty".

If that wasn't clear enough read this:

"Among these unalienable rights, as proclaimed in the Declaration of Independence, is the right of men to pursue their happiness, by which is meant, the right to pursue any lawful business of vocation, any manner not inconsistent with the equal rights of others...The property which every man has is his own labor, as it is the original foundation of all other property so it is the most sacred and inviolable..."
Butcher's Union Co., v. Cresent City Co., 111 U.S. 746, 756 (1884)
[/U]

There is no law that says that a human being cannot hire another human unless they present certain government documents. With the exception of Title 8 which is dealing with the FEDERAL GOVERNMENT hiring someone.

8 USC 1324a(a)(1) - It is unlawful for a person or other entity...

Note that it says, "...a person or other entity". Why does it not simply say, "...a person or entity"? Why include the word "other"?

Lest you think we're just being silly nitpickers, here's one of the fundamental canons [rules] of statutory construction:

Effect must be given to every word of a statute and that no part of a provision will be read as superfluous.

According to the canons of statutory construction, we would be in error not to investigate the significance of the word "other", as used in the statute.

As a first step in this process, let us determine what "entity" means.

8 USC 1324a(a)(7) - For purposes of this section, the term ''entity'' includes an entity in any branch of the Federal Government.

 

[Brian4Liberty]

That's unconstitutional and unlawful my friend.

LOL, sorry, I can't read the "my friend" part without thinking of John McCain saying it...

You can feel free to tell every potential employer that you won't "show your papers" (or take their drug test). You can also feel free to tell the police at their checkpoints that you won't show your papers or offer your breath for analysis.

I would have to say that the checkpoints are more blatantly unconstitutional...

----

Here's some existing Federal Law on hiring illegal workers:

"Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or

* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

* knowingly assists illegal aliens due to personal convictions.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection."

http://www.flimen.org/Section 274 felonies.htm

----

And you might want to sign-up to help defend this woman, her lawyer didn't seem to help a lot:

"Woman pleads guilty to hiring illegals

The Associated Press

St. Louis — An eastern Missouri businesswoman faces sentencing in February after pleading guilty to federal charges of hiring illegal aliens.

Joette Reidy of Washington was an officer of Lochirco Fruit and Produce, which did business as "Happy Apples." In addition to Reidy's felony plea on Tuesday, the company pleaded guilty to a misdemeanor count of hiring illegal aliens."

http://www.news-leader.com/apps/pbcs.dll/article?AID=/20071121/NEWS01/711210330/1007/NEWS01

 

[therealjjj77]

You can feel free to tell every potential employer that you won't "show your papers" (or take their drug test). You can also feel free to tell the police at their checkpoints that you won't show your papers or offer your breath for analysis.

I would have to say that the checkpoints are more blatantly unconstitutional...

----

Here's some existing Federal Law on hiring illegal workers:

"Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or

* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

* knowingly assists illegal aliens due to personal convictions.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection."

http://www.flimen.org/Section 274 felonies.htm

The website you took that from changed the way the law reads to fit whatever agenda they are trying to forward. We need to take an honest look at the law to see exactly what it says for what it says and not take words out and put words in.

If you wish to read the law they quoted, you can find it here:

http://www.dol.gov/esa/regs/statutes/whd/0006.iana.htm

That is nothing like what they have on their website. They just tried to paraphrase their interpretation of the law. They did not QUOTE the law.

Also, on top of what I already said above, there needs to be evidence of knowledge of hiring someone illegally. There is no requirement to fill out paper work under the law. The only reason that is listed as to why it would be "beneficial" to do that is:

"A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) of this section [by which they mean completing an I-9] with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral."

In other words, if you required all your employees to fill out an I-9 form, and they found an unauthorized alien working there, then they could use that I-9 form as evidence that you knowingly hired an unauthorized alien. Why would you want to incriminate yourself?

By the way, I am an employer and I do NOT have any of my workers fill out an I-9 form.

----

And you might want to sign-up to help defend this woman, her lawyer didn't seem to help a lot:

"Woman pleads guilty to hiring illegals

The Associated Press

St. Louis — An eastern Missouri businesswoman faces sentencing in February after pleading guilty to federal charges of hiring illegal aliens.

Joette Reidy of Washington was an officer of Lochirco Fruit and Produce, which did business as "Happy Apples." In addition to Reidy's felony plea on Tuesday, the company pleaded guilty to a misdemeanor count of hiring illegal aliens."

http://www.news-leader.com/apps/pbcs.dll/article?AID=/20071121/NEWS01/711210330/1007/NEWS01

[/quote]

If they already pleaded guilty to something, then it is a little late to help them. By pleading guilty to the charges, whether they be true or not, she is incriminating her business.

 

[Brian4Liberty]

By the way, I am an employer and I do NOT have any of my workers fill out an I-9 form.

Well, when laws aren't enforced, that is always an option...and there is far too much government required paperwork to keep up with...but...

It's just another case of laws that aren't enforced unless someone takes a special interest in you. You can drive 110 mph on the highway with no penalty, as long as you don't get caught.

I have also been an employer, and am no fan of the massive amount of paperwork required...I was also urged to sponsor visas to bring in cheap, imported labor. I declined to go that route. And many of the people that did go that route (sponsoring in-sourcing visas and outsourcing) found that they could be replaced just as easily. Short term gain for them, long term loss.

If you would like to see the direct government sources on employee verification requirements, here are a couple of links:

http://www.uscis.gov/i-9

"Employment Eligibility Verification

Purpose of Form :
All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9."

http://www.uscis.gov/files/nativedocuments/m-274.pdf

"Penalties for Prohibited Practices

A. UNLAWFUL EMPLOYMENT
1. Civil Penalties
The Department of Homeland Security (DHS) may impose penalties if an investigation reveals that an employer has knowingly hired or knowingly continued to employ an unauthorized alien, or has failed to comply with the employment eligibility verification requirements, with respect to employees hired after November 6, 1986. DHS will issue a Notice of Intent to Fine (NIF) when it intends to impose penalties. Employers who receive a NIF may request a hearing before an administrative law judge. If an employer’s request for a hearing is not received within 30 days, DHS will impose the penalty and issue a Final Order, which cannot be appealed.
a. Hiring or continuing to employ unauthorized aliens
DHS may order employers it determines to have knowingly hired unauthorized aliens (or to be continuing to employ aliens knowing that they are or have become unauthorized to work in the United States) to cease and desist from such activity, and pay a civil money penalty as follows:
1. First Offense: Not less than $275 and not more than $2,200 for each unauthorized alien;
2. Second offense: Not less than $2,200 and not more than $5,500 for each unauthorized alien; or
3. Subsequent Offenses: Not less than $3,300 and not more than $11,000 for each unauthorized alien.
DHS will consider an employer to have knowingly hired an unauthorized alien if, after November 6, 1986, the employer uses a contract, subcontract or exchange, entered into, renegotiated or extended, to obtain the labor of an alien and knows the alien is not authorized to work in the United States. The employer will be subject to the penalties set forth above.
b. Failing to comply with the Form I-9 requirements
Employers who fail to properly complete, retain, and/or make available for inspection Forms I-9 as required by law may face civil money penalties in an amount of not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred.
In determining the amount of the penalty, DHS will consider:
1. The size of the business of the employer being charged;
2. The good faith of the employer;
3. The seriousness of the violation;
4. Whether or not the individual was an unauthorized alien; and
5. The history of previous violations of the employer.
c. Enjoining pattern or practice violations
If the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment or referral in violation of section 274A(a)(1)(A) or (2) of the Act, the Attorney General may bring civil action in the appropriate U.S. District Court requesting relief, including a permanent or temporary injunction, restraining order or other order against the person or entity, as the Attorney General deems necessary.
d. Requiring indemnification
Employers found to have required a bond or indemnity from an employee against liability under the employer sanctions laws may be ordered to pay a civil money penalty of $1,000 for each violation and to make restitution, either to the person who was required to pay the indemnity, or, if that person cannot be located, to the U.S. Treasury.
e. Good faith defense
If the employer can show that he or she has in good faith complied with the Form I-9 requirements, then the employer has established a “good faith” defense with respect to a charge of knowingly hiring an unauthorized alien, unless the government can show that the employer had actual knowledge of the unauthorized status of the employee.
A good faith attempt to comply with the paperwork requirements of Section 274A(b) of the Act may be adequate notwithstanding a technical or procedural failure to comply, unless the employer has failed to correct the violation within 10 days after notice from DHS, or the employer is engaging in a pattern or practice of violations.
2. Criminal Penalties
a. Engaging in a pattern or practice of
knowingly hiring or continuing to employ
unauthorized aliens
Persons or entities who are convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens (or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States) after November 6, 1986, may face fines of up to $3,000 per employee and/or six months imprisonment.
b. Engaging in fraud or false statements, or
otherwise misusing visas, immigration
permits and identity documents
Persons who use fraudulent identification or employment eligibility documents or documents that were lawfully issued to another person, or who make a false statement or attestation for purposes of satisfying the employment eligibility verification requirements, may be fined, or imprisoned for up to five years, or both. Other federal criminal statutes may provide higher penalties in certain fraud cases."

 

[therealjjj77]

This isn't an issue of enforcement but an issue of application. That law does not apply to me. I am not a "person or other entity" according to their own definitions of the word "entity".

If I was the "person" within a "branch of the federal government"(entity) charged with employing and documentation of such activities, then I would certainly need to follow this law.

However, I am not under their jurisdiction. They cannot enforce a law on me that does not apply to me. It would be like them saying that I need to sweep the floors of the courthouse just because in some law book somewhere says that a person needs to sweep the floors of the courthouse.

http://www.uscis.gov/i-9

"Employment Eligibility Verification

Purpose of Form :
All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9."

That is not law and would not hold up in a courtroom as law no more then a publication from my company would not be law. Publications are simply that: a publication.

The rest about fines simply requires that you take them to court and show the law and how it does not apply to you. It's no different then the stuff the IRS tries to pull.

"Employers who receive a NIF may request a hearing before an administrative law judge."

 

[Brian4Liberty]

This isn't an issue of enforcement but an issue of application. That law does not apply to me. I am not a "person or other entity" according to their own definitions of the word "entity".
...
It's no different then the stuff the IRS tries to pull.

Agreed, it's very much like the IRS. Some people resist, the majority of people comply, and many people get into trouble resisting. That's a whole different subject though.

Many of us believe that bringing in foreign workers hurts American workers. Simple supply and demand: bring in cheap workers, depress wages for all. Decreases the value of each individual. On top of that is the resulting population boom, which creates energy and water shortages, overcrowding, traffic jams, rising housing prices, rising government costs, paved over farm land and open spaces, pollution, etc. It's a concern about what we leave for future generations.

And other people believe that cheap labor slightly increases their profit margin, and that's all that matters...which is why the system doesn't get fixed.

 

[therealjjj77]

Agreed, it's very much like the IRS. Some people resist, the majority of people comply, and many people get into trouble resisting. That's a whole different subject though.

Many of us believe that bringing in foreign workers hurts American workers. Simple supply and demand: bring in cheap workers, depress wages for all. Decreases the value of each individual. On top of that is the resulting population boom, which creates energy and water shortages, overcrowding, traffic jams, rising housing prices, rising government costs, paved over farm land and open spaces, pollution, etc. It's a concern about what we leave for future generations.

And other people believe that cheap labor slightly increases their profit margin, and that's all that matters...which is why the system doesn't get fixed.

Well, I assure you that all of my workers are legal residents or citizens.

However, I would disagree in opinion with the belief that foreign workers hurt American workers. I believe it is foreign welfare recipients that hurts American workers.

What happens when you have people who are willing to work for less is that prices tend to go down as well. This means wages may decrease slightly across the board but the prices decrease more significantly. This then tends to lower the tax bracket many people may fall into so it ends up being an aggregate gain for the private sector but a problem for the public sector since they never cut back wages and then they will have a shortfall in tax revenues. However, if we had sound money they wouldn't be able to just print/borrow more and they would have to change their ways.

 

[Brian4Liberty]

Well, I assure you that all of my workers are legal residents or citizens.

However, I would disagree in opinion with the belief that foreign workers hurt American workers. I believe it is foreign welfare recipients that hurts American workers.

What happens when you have people who are willing to work for less is that prices tend to go down as well. This means wages may decrease slightly across the board but the prices decrease more significantly.

I agree that welfare doesn't do anyone any good. And as Ron Paul says, it is one of the incentives for illegal immigration.

Wages are a factor of supply and demand. Increase the supply of workers, and demand/price decrease. This is an immediate micro-economic effect. This takes place almost instantly. Artificially increasing supply of workers via immigration sends the supply/demand equation out of balance, to the detriment of workers.

As for this effect trickling into the economy as a price decrease, this takes a long time, if it happens at all. Price decreases tends to come from importation of cheap goods, not from declining domestic labor costs. The system is far too complex for domestic labor decreases to automatically result in price decreases. Too many people (including the government) are in a position to siphon off additional profits. The increased profits generally result in redistribution of wealth from the poor/middle class to others.

Bill Gates (and many others) didn't get rich by overpaying his workers. He got rich by using his influence on the government, to influence government policy for his benefit. This is precisely what is wrong with big government, partnering with big business.

 

[Thomas Paine]

If we reduced government handouts, this country wouldn't be attracting illegal immigrants like flies to $hit.

 

[nobody's_hero]

If we reduced government handouts, this country wouldn't be attracting illegal immigrants like flies to $hit.

I'll second that. I probably wouldn't have worded it as strongly, but I basically agree with your comment.

 

[therealjjj77]

I agree that welfare doesn't do anyone any good. And as Ron Paul says, it is one of the incentives for illegal immigration.

Wages are a factor of supply and demand. Increase the supply of workers, and demand/price decrease. This is an immediate micro-economic effect. This takes place almost instantly. Artificially increasing supply of workers via immigration sends the supply/demand equation out of balance, to the detriment of workers.

As for this effect trickling into the economy as a price decrease, this takes a long time, if it happens at all. Price decreases tends to come from importation of cheap goods, not from declining domestic labor costs. The system is far too complex for domestic labor decreases to automatically result in price decreases. Too many people (including the government) are in a position to siphon off additional profits. The increased profits generally result in redistribution of wealth from the poor/middle class to others.

Bill Gates (and many others) didn't get rich by overpaying his workers. He got rich by using his influence on the government, to influence government policy for his benefit. This is precisely what is wrong with big government, partnering with big business.

One of the reasons why our labor is so much higher then everyone else around the world is because of our exportation of the dollar. The rest of the world still thinks it's backed by gold and so we are essentially printing gold.

A simple breakdown of this affect:

Let's say that China is treating our money like it's worth something. You pay your employees the inflated price of 8 dollars an hour because you deal with dollars every day and you know that they are not backed by gold and because they know that 8 dollars is the lowest they will work for. But China doesn't know that our dollar is not backed by anything. They think America is great and American dollars are still worth something. So they are willing to accept 1 dollar equivalent because everything there is no so inflated yet(in U.S. dollars). So we have a "strong" dollar around the world. The corporations make big on this. But middle class and poverty class lose out big time. Then the middle class sees immigration and sending jobs overseas as the problem. So they want legislation that says businesses should not hire immigrants or send jobs overseas.

That's only addressing symptoms to the problem. The problem is NOT immigration. The problem is funny money that is being printed out and injected in our economy at the highest levels through loans from the federal reserve.

You solve the federal reserve problem and you won't have any immigration problem once the market prices readjust. Immigration will actually be a good thing.

 

[Brian4Liberty]

One of the reasons why our labor is so much higher then everyone else around the world is because of our exportation of the dollar.

That's only addressing symptoms to the problem. The problem is NOT immigration. The problem is funny money that is being printed out and injected in our economy at the highest levels through loans from the federal reserve.

You solve the federal reserve problem and you won't have any immigration problem once the market prices readjust. Immigration will actually be a good thing.

We will have to agree to disagree. I absolutely agree that the Federal Reserve and lack of sound money are probably the biggest contributors to our declining standard of living, but that is certainly not the only reason. There are a multitude of factors that all come together. Just like the Iraq "war" (police action). There were many reasons (motivations) for that invasion. Despite those who claim that it was one single reason, it was all of the reasons combined.

And when it comes to the standard of living for the average worker, importation of cheap labor is a major contributor in lowering each workers value. Sound money or not, when the supply/demand equation on labor is artificially manipulated by bringing in excess workers, it will have an effect.

And since this is the Ron Paul Forum, here's a quote from Ron himself:

What is your view on legal immigration?

I think it depends on our economy. If we have a healthy economy, I think we could be very generous on work programs. People come in, fulfill their role and go back home.

I’m not worried about legal immigration. I think we would even have more if we had a healthy economy.

But in the meantime, we want to stop the illegals. And that’s why I don’t think our border guards should be sent to Iraq, like we’ve done. I think we need more border guards. But to have the money and the personnel, we have to bring our troops home from Iraq.

Is the economy healthy enough right now?

No. I don’t think so. I think the economy is going downhill. People are feeling pinched—in the middle, much more pinched than the government is willing to admit. Their standard of living is going down.

http://www.vdare.com/pb/070912_paul.htm
​

I agree 100% with Ron. There may be certain times when the economy can have a labor shortage, but this is not one of them! And those shortages are usually acute, not permanent.

The push for massive immigration comes from many corners, but the most damaging is the ruling establishment (government/corporate complex), that just wants cheap labor. And that goal includes creating a surplus of labor to reduce the value of all workers.

 

[therealjjj77]

I didn't say there was only one cause. =P

However, I think we are in agreement a great deal because, I, like you, feel that when you have a sound economy, then immigration can be beneficial.

The dollar issue really does solve a lot, though. As well as exposing in the mainstream the supreme court's definition of "income" as used in the 16th amendment. Those two things would be the death blow to government's run away spending. Then they could borrow and go bankrupt. This is why the use of an alternate competing domestic currency is so attractive. It solves both of these issues. Then the government doesn't take the economy down with itself.

But anyway, what we are seeing, and will continue to see very soon, is migration. Not of the illegals, but of hard working contributing Americans. In fact, I could go to China right now and teach English and make way more then what I make with my business in the U.S. Plus my buying power over there is like 7:1. That's where people will start migrating to. As well as other places where the jobs have gone. Once we see a true famine in the U.S., a lot will change. I hope we don't have to, but if we must, we must. If a country allowed for financial liberty and protected it by allowing sound currencies to exist, they would see a huge migration. That country would actually thrive, like the U.S. did so many years ago under vast immigration. Immigration can be a good thing, if you don't have a welfare state and allow financial liberty.

 

[redsrule2500]

This is probably my favorite issue of Paul.

 

[rePAULblican]

I am against birthright citizenship to illegal aliens. It is a huge magnet for illegal aleins to come to our country, pop out a baby and immediately apply for handouts. The illegal alien problem is huge. I lived most of my life in Los Angeles and saw the problem everyday. I am very involved when it comes to illegal immigration and many people would be surprised at the cost of illegals. The cost of jails, prisons, welfare, medical assistance, fraud, id theft, overcrowed schools is in the billions. As an American Hispanic I am completly and totally against illegal immigration. Deport them.

 

[bobbyw24]

The Citizenship Clause of the Fourteenth Amendment

To counteract the Supreme Court’s decision in Dred Scott v. Sanford 10 denying
citizenship not just to Dred Scott, a slave, but to all African-Americans, whether slave or
free, the Congress proposed and the states ratified the Citizenship Clause of the
Fourteenth Amendment, which specifies: “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.”11 It is today routinely believed that, under the Clause, mere
birth on U.S. soil is sufficient to confer U.S. citize nship. Legal commentator Michael
Dorf, for example, noted recently: “Yaser Esam Hamdi was born in Louisiana. Under
Section One of the Fourteenth Amendment, he is therefore a citizen of the United States,
10 60 U.S. 393 (1857).
11 U.S. Const. Amend. XIV, § 1.
6
even though he spent most of his life outside this country.”12 What Dorf’s formulation
omits, of course, is the other component of the Citizenship Clause. One must also be
“subject to the jurisdiction” of the United States in order constitutionally to be entitled to
citizenship.
To the modern ear, Dorf’s formulation nevertheless appears perfectly sensible.
Any person entering the territory of the United States—even for a short visit; even
illegally—is considered to have subjected himself to the jurisdiction of the United States,
which is to say, subjected himself to the laws of the United States. Indeed, former
Attorney General William Barr has even contended that one who has never entered the
territory of the United States subjects himself to its jurisdiction and laws by taking
actions that have an effect in the United States.13 Surely one who is actually born in the
United States is therefore “subject to the jurisdiction” of the Unites States, and entitled to
full citizenship as a result.
However strong this interpretation is as a matter of contemporary common
parlance, is simply does not comport with either the text or the history surrounding
adoption of the Citizenship Clause, nor with the political theory underlying the Clause.
Textually, such an interpretation would render the entire “subject to the jurisdiction”
clause redundant—anyone who is “born” in the United States is, under this interpretation,
12 Michael C. Dorf, Who Decides Whether Yaser Hamdi, Or Any Other Citizen, Is An Enemy Combatant?
FindLaw (Aug. 21, 2002) (emphasis added).
13 See, e.g., The Legality as a Matter of Domestic Law of Extraterritorial Law Enforcement Activities that
Depart from International law: Hearings before the Subcomm. on Civil and Constitutional Rights of the
House Comm. on the Judiciary, 101st Cong., 1st Sess. 3 (1989) (statement of William Barr, U.S. Assistant
Attorney General); William J. Tuttle, The Return of Timberlane? The Fifth Circuit Signals a Return to
Restrictive Notions of Extraterritorial Antitrust, 36 Vanderbilt J. Transnat’l L. 319, 348 (Jan. 2003) (noting
that in April 1992 then-Attorney General William Barr revised Department of Justice antitrust enforcement
guidelines to permit lawsuits against foreign corporations who acted exclusively outside the United States
if their operations were detrimental to U.S. exporters); see also United States v. Noriega, 117 F.3d 1206
(11th Cir. 1997).
7
necessarily “subject to the jurisdiction” of the United States—and it is a well-established
doctrine of legal interpretation that legal texts, including the Constitution, are not to be
interpreted to create redundancy unless any other interpretation would lead to absurd
results.14
Historically, the language of the 1866 Civil Rights Act, from which the
Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the
Fourteenth Amendment) was derived so as to provide a more certain constitutional
foundation for the 1866 Act, strongly suggests that Congress did not intend to provide for
such a broad and absolute birthright citizenship. The 1866 Act provides: “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.”15 As this formulation
makes clear, any child born on U.S. soil to parents who were temporary visitors to this
country and who, as a result of the foreign citizenship of the child’s parents, remained a
citizen or subject of the parents’ home country, was not entitled to claim the birthright
citizenship provided in the 1866 Act.
Of course, the jurisdiction clause of the Fourteenth Amendment is somewhat
different from the jurisdiction clause of the 1866 Act. The positively-phrased “subject to
the jurisdiction” of the United States might easily have been intended to describe a
broader grant of citizenship than the negatively-phrased language from the 1866 Act, one
more in line with the contemporary understanding accepted unquestioningly by Dorf that
birth on U.S. soil is alone sufficient for citizenship. But the relatively sparse debate we
14 See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the
Constitution, 37 Case. W. Res. L. Rev. 179 ?? (1989); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562
(1995) (“this Court will avoid a reading which renders some words altogether redundant”).
15 Chapter 31, 14 Stat. 27 (April 9, 1866).
8
have regarding this provision of the Fourteenth Amendment does not support such a
reading. When pressed about whether Indians living on reservations would be covered
by the clause since they were “most clearly subject to our jurisdiction, both civil and
military,” for example, Senator Lyman Trumbull, a key figure in the drafting and
adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of
the United States meant subject to its “complete” jurisdictio n; “[n]ot owing allegiance to
anybody else.” And Senator Jacob Howard, who introduced the language of the
jurisdiction clause on the floor of the Senate, contended that it should be construed to
mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as
applies to every citizen of the United States now” (i.e., under the 1866 Act). That meant
that the children of Indians who still “belong[ed] to a tribal relation” and hence owed
allegiance to another sovereign (however dependent the sovereign was) would not qualify
for citizenship under the clause. Because of this interpretative gloss, provided by the
authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin
to explicitly exclude “Indians not taxed,” as the 1866 Act had done, was rejected as
redundant.16
The interpretative gloss offered by Senators Trumbull and Howard was also
accepted by the Supreme Court—by both the majority and the dissenting justices—in The
Slaughter-House Cases. The majority correctly noted that the “main purpose” of the
Clause “was to establish the citizenship of the negro,” and that “[t]he phrase, ‘subject to
its jurisdiction’ was intended to exclude from its operation children of ministers, consuls,
16 Congressional Globe, 39th Cong., 1st Sess., 2892-97 (May 30, 1866). For a more thorough discussion of
the debate, see Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the
American Polity 72-89 (Yale Univ. Press 1985).
9
and citizens or subjects of foreign States born within the United States.”17 Justice Steven
Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the
principal holding of the case, likewise acknowledged that the Clause was designed to
remove any doubts about the constitutionality of the 1866 Civil Rights Act, which
provided that all persons born in the United States were as a result citizens both of the
United States and the state in which they resided, provided they were not at the time
subjects of any foreign power.18
Although the statement by the majority in Slaughter-House was dicta, the position
regarding the “subject to the jurisdiction” language advanced there was subsequently
adopted by the Supreme Court in the 1884 case addressing a claim of Indian citizenship,
Elk v. Wilkins.19 The Supreme Court in that case rejected the claim by an Indian who had
been born on a reservation and subsequently moved to non-reservation U.S. territory,
renouncing his former tribal allegiance. The Court held that the claimant was not
“subject to the jurisdiction” of the United States at birth, which required that he be “not
merely subject in some respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction, and owing them direct and immediate
allegiance.”20 John Elk did not meet the jurisdictional test because, as a member of an
Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United
States. Although “Indian tribes, being within the territorial limits of the United States,
were not, strictly speaking, foreign states,” “they were alien nations, distinct political
17 83 U.S. (16 Wall.) 36, 73 (1872).
18 Id. at 92-93.
19 112 U.S. 94 (1884).
20 Id. at 102.
10
communities,” according to the Court.21 Drawing explicitly on the language of the 1866
Civil Rights Act, the Court continued:
Indians born within the territorial limits of the United States, members of,
and owing immediate allegiance to, one of the Indian tribes, (an alien
though dependent power,) although in a geographical sense born in the
United States, are no more “born in the United States and subject to the
jurisdiction thereof,” within the meaning of the first section of the
fourteenth amendment, than the children of subjects of any foreign
government born within the domain of that government, or the children
born within the United States, of ambassadors or other public ministers of
foreign nations.22
Indeed, if anything, Indians, as members of tribes that were themselves dependent to the
United States (and hence themselves subject to its jurisdiction), had a stronger claim to
citizenship under the Fourteenth Amendment merely by virtue of their birth within the
territorial jurisdiction of the United States than did children of foreign nationals. But the
Court in Elk rejected that claim, and in the process necessarily rejected the claim that the
phrase, “subject to the jurisdiction” of the United States, meant merely territorial
jurisdiction as opposed to complete, political jurisdiction.
Such was the interpretation of the Citizenship Clause initially given by the
Supreme Court. As Thomas Cooley noted in his treatise, The General Principles of
Constitutional Law in America, “subject to the jurisdiction” of the United States “meant
full and complete jurisdiction to which citizens are generally subject, and not any
qualified and partial jurisdiction, such as may consist with allegiance to some other
government.”
21 Id. at 99.
22 Id. at 102.
11
III. The Supreme Court’s 1898 Misreading of the Citizenship Clause
The clear (and as I contend, correct) holding of Elk v. Wilkins, and the equally
correct dicta from Slaughter-House, was rejected by the Supreme Court in 1898, thirty
years after the adoption of the Fourteenth Amendment, in the case of United States v.
Won Kim Ark,23 decided by the same court, with nearly the same line- up, that had given
its sanction to the ignominious separate-but-equal doctrine less than two years earlier in
Plessy v. Ferguson.24
In Won Kim Ark, the Supreme Court held that “a child born in the United States,
of parents of Chinese descent, who at the time of his birth were subjects of the emperor of
China, but have a permanent domicile and residence in the United States,” was, merely
by virtue of his birth in the United States, a citizen of the United States as a result of the
Citizenship Clause of the Fourteenth Amendment. Justice Horace Gray, writing for the
Court, correctly noted that the language to the contrary in The Slaughter-House Cases
was merely dicta and therefore not binding precedent.25 He found the Slaughter-House
dicta unpersuasive because of a subsequent decision, in which the author of the majority
opinion in Slaughter-House had concurred, holding that foreign consuls (unlike
ambassadors) were “subject to the jurisdiction, civil and criminal, of the courts of the
country in which they reside.”26 Justice Gray appears not to have appreciated the
distinction between partial, territorial jurisdiction, which subjects all who are present
23 169 U.S. 649 (1898).
24 163 U.S. 537 (1896).
25 169 U.S. at 678.
26 Id. at 679 (citing, e.g., 1 Kent, Comm. 44; In re Baiz, 135 U.S. 403, 424 (1890)).
12
within the territory of a sovereign to the jurisdiction of its laws, and complete, political
jurisdiction, which requires as well allegiance to the sovereign.
More troubling than his rejection of the persuasive dicta from Slaugher-House
was the fact that Justice Gray also repudiated the actual holding in Elk v. Wilkins, which
he himself had authored. After quoting extensively from the opinion, including the
portion, reprinted above, noting that the children of Indians owing allegiance to an Indian
tribe were no more “subject to the jurisdiction” of the United States within the meaning
of the Fourteenth Amendment than were the children of ambassadors and other public
ministers of foreign nations born in the United States, Justice Gray simply held, without
any analysis, that Elk “concerned only members of the Indian tribes within the United
States, and had no tendency to deny citizenship to children born in the United States of
foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic
service of a foreign country.”27
By limiting the “subject to the jurisdiction” clause to the children of diplomats,
who neither owed allegiance to the United States nor were (at least at the ambassadorial
level) subject to its laws merely by virtue of their residence in the United States as the
result of the long-established international law fiction of extraterritoriality by which the
sovereignty of a diplomat is said to follow him wherever he goes, Justice Gray simply
failed to appreciate what he seemed to have understood in Elk, namely, that there is a
difference between territorial jurisdiction and the more complete, allegiance-obliging
jurisdiction that the Fourteenth Amendment codified.
27 Id. at 681-82.
13
Justice Gray’s failure even to address, much less appreciate, the distinction
between territorial jurisdiction and complete, political jurisdiction was taken to task by
Justice Fuller, joined by Justice Harlan, in dissent. Drawing on an impressive array of
legal scholars, from Vattel to Blackstone, Justice Fuller correctly noted that there was a
distinction between two sorts of allegiance—“the one, natural and perpetual; the other,
local and temporary.” The Citizenship Clause of the Fourteenth Amendment referred
only to the former, he contended. He contended that the absolute birthright citizenship
urged by Justice Gray was really a lingering vestige of a feudalism that the Americans
had rejected, implicitly at the time of the Revolution, and explicitly with the 1866 Civil
Rights Act and the Fourteenth Amendment.
Quite apart from the fact that Justice Fuller’s dissent was logically compelled by
the text and history of the Citizenship Clause, Justice Gray’s broad interpretation led him
to make some astoundingly incorrect assertions. He claimed, for example, that “a
stranger born, for so long as he continues within the dominions of a foreign government,
owes obedience to the laws of that government, and may be punished for treason.”28
And he necessarily had to recognize dual citizenship as a necessary implication of his
position, 29 despite the fact that, ever since the Naturalization Act of 1795, “applicants for
naturalization were required to take, not simply an oath to support the constitution of the
United States, but of absolute renunciation and abjuration of all allegiance and fidelity to
every foreign prince or state, and particularly to the prince or state of which they were
before the citizens or subjects.”30 That requirement still exists though it no longer seems
28 Id. at 693.
29 Id. at 691.
30 Id. at 711 (Fuller, J., dissenting) (citing Act of Jan. 29, 1795, 1 Stat. 414, c. 20)
14
to be taken seriously. Hopefully this Committee will, as a result of these hearings, begin
to address that fundamental contradiction in our naturalization practice.
Finally, Justice Gray’s position is simply at odds with the notion of consent that
underlay the sovereign’s power over naturalization. What it meant, fundamentally, was
that foreign nationals could secure American citizens hip for their children unilaterally,
merely by giving birth on American soil, whether or not their arrival on America’s shores
was legal or illegal, temporary or permanent.
Justice Gray held that the children of two classes of foreigners were not entitled to
the birthright citizenship he thought guaranteed by the Fourteenth Amendment. First, as
noted above, were the children of ambassadors and other foreign diplomats who, as the
result of the fiction of extraterritoriality, were not even considered subject to the
territorial jurisdiction of the United States. Second were the children of invading armies
born on U.S. soil while it was occupied by the foreign army. But apart from that, all
children of foreign nationals who managed to be born on U.S. soil were, in his
formulation, citizens of the United States. Children born of parents who had been offered
permanent residence but were not yet citizens and who as a result had not yet renounced
their allegiance to their prior sovereign would become citizens by birth on U.S. soil. This
was true even if, as was the case in Wong Kim Ark itself, the parents were, by treaty,
unable ever to become citizens.
Children of parents residing only temporarily in the United States on a work or
student visa, such as Yaser Hamdi’s parents, would also become U.S. citizens. Children
of parents who had overstayed their temporary visa would also become U.S. citizens,
even though born of parents who were now here illegally. And, perhaps most troubling
15
from the “consent” rationale, children of parents who never were in the United States
legally would also become citizens as the direct result of the illegal action by their
parents. Finally, to return to my opening reference to the Iranian hostage crisis, this
would be true even if the parents were nationals of a regime at war with the United States
and even if the parents were here to commit acts of sabotage against the United States, at
least as long as the sabotage did not actually involve occupying a portion of the territory
of the United States. The notion that the framers of the Fourteenth Amendment, when
seeking to guarantee the right of citizenship to the former slaves, also sought to guarantee
citizenship to the children of enemies of the United States who were in our territory
illegally, is simply too absurd to be a credible interpretation of the Citizenship Clause.
IV. Reviving Congress’s Constitutional Power Over Naturalization
This is not to say that Congress could not, pursuant to its naturalization power,
choose to grant citizenship to the children of foreign nationals. But thus far it has not
done so. Instead, the language of the current naturalization statute simply tracks the
minimum constitutional guarantee—anyone born in the United States, and subject to its
jurisdiction, is a citizen. With the absurdity of Hamdi’s claim of citizenship so recently
and vividly before us, it is time for the courts, and for the political branches as well, to
revisit Justice Gray’s erroneous interpretation of that language, restoring to the
constitutional mandate what its drafters actually intended, that only a complete
jurisdiction, of the kind that brings with it a total and exclusive allegiance, is sufficient to
qualify for the grant of citizenship to which the people of the United States actually
consented.
16
Of course, Congress has in analogous contexts been hesitant to exercise its own
constitutional authority to interpret the Constitution in ways contrary to the
pronouncements of the Courts. Even if that course is warranted in most situations so as
to avoid a constitutional conflict with a co-equal branc h of the government, it is not
warranted here for at least two reasons. First, as the Supreme Court itself has repeatedly
acknowledged, Congress’s power over naturalization is “plenary,” while “judicial power
over immigration and naturalization is extremely limited.”31 While that recognition of
plenary power does not permit Congress to dip below the constitutional floor, of course,
it does counsel against any judicial interpretation that provides a broader grant of
citizenship than is actually supported by the Constitution’s text.
Second, the gloss that has been placed on the Wong Kim Ark decision is actually
much broader than the actual holding of the case. This Committee should therefore
recommend, and Congress should then adopt, a narrow reading of the decision that does
not intrude on the plenary power of Congress in this area any more than the actual
holding of the case requires. Wong Kim Ark’s parents were actually in this country both
legally and permanently, yet were barred from even pursuing citizenship (and renouncing
their former allegiance) by a treaty that closed that door to all Chinese immigrants. They
were therefore as fully subject to the jurisdiction of the United States as they were legally
permitted to be, and under those circumstances, it is not a surprise that the Court would
extend the Constitution’s grant of birthright citizenship to their children. But the effort to
read Wong Kim Ark more broadly than that, as interpreting the Citizenship Clause to
confer birthright citizenship on the children of those not subject to the full and sovereign
31 See, e.g., Miller v. Albright, 523 U.S. 420, 455 (1998); Fiallo v. Bell, 430 U.S. 787, 792 (1977);
Kleindienst v. Mandel, 408 U.S. 753, 769-770 (1972); Galvan v. Press, 347 U.S. 522, 531 (1954).

 

[Brian4Liberty]

The Citizenship Clause of the Fourteenth Amendment

To counteract the Supreme Court’s decision in Dred Scott v. Sanford 10 denying
citizenship not just to Dred Scott, a slave, but to all African-Americans, whether slave or.................................

Whew! That was long. You convinced me. The 14th Amendment needs to be amended for clarification...Ron Paul is right.

 

[Brian4Liberty]

...
However, I think we are in agreement a great deal because, I, like you, feel that when you have a sound economy, then immigration can be beneficial.
...

Well, as Ron Paul said, when it's temporary, and based on real need.

Kind of like a cast on a broken arm. Fine for a time, but a permanent full-body cast is not beneficial...

 

[bobbyw24]

Yeah--sorry for the LONG post. I had the article in PDF but was not allowed to post attachments.

I got it from the Federalist Society website.

http://www.fed-soc.org