The 14th amendment and original ism.

[JSRG]

Look at the context--this amendment is short and to the point about who is a citizen. It is NOT an essay or remark on some of the many duties of U.S. citizens.

Uh... yeah, the amendment isn't an essay or remark on some of the many duties of US citizens. But the quote you offered as evidence of your position was. To try to argue about the meaning of the Citizenship Clause, you offered a quote by Bingham years before the Fourteenth Amendment was even drafted where he talked about citizens and made mention of their duties, a portion you made sure to bold and underline to show it is what you were talking about ("the allegiance which requires the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country"). If you were not trying to make some argument based on the duties of US citizens--that they must support and defend, even with their life, the Constitution--then what was your argument with that quote?

 

[Pommer]

It was clear that the framers(by their own words) of that wording in the amendment did not consider that children born in the United States of illegal aliens were citizens. The intent is that the parents must be loyal to the United States.

The “framers” had a concept of “illegal aliens”, really?
Like Indians, or what?

 

[Aryeh Jay]

Easy solution, we have one day to take the US citizen test, no warning, no studying, boom, take this test now. Everyone who passed gets to keep their citizenship and those who failed, become stateless people.

 

[DaisyDay]

The “framers” had a concept of “illegal aliens”, really?
Like Indians, or what?

Reading some of this, one would imagine that the FFs had some sort of tightly patrolled borders to the west, north and south.

History buffs - when did the concept of "illegal alien" first appear as a legal term in the US? How were the western borders surveyed, marked and defended? With the Louisiana Purchase in 1803, what became of the citizenship of the people already living there who were disinclined to move on?

 

[DaisyDay]

Easy solution, we have one day to take the US citizen test, no warning, no studying, boom, take this test now. Everyone who passed gets to keep their citizenship and those who failed, become stateless people.

We only need one question now: who won the 2020 election?

 

[Valletta]

The “framers” had a concept of “illegal aliens”, really?
Like Indians, or what?

The subject of Indians was indeed openly discussed, some were worried that Indians would be included. But it was pointed by Senator Howard, who was the author of the citizenship clause, that even though Indians were born here that did not automatically make them “subject to the jurisdiction" of the United States. If Indians were not considered citizens then no way would children of illegals whose allegiance was not to the U.S. be considered citizens.

 

[durangodawood]

....If Indians were not considered citizens then no way would children of illegals whose allegiance was not to the U.S. be considered citizens.

Thats false.... because the 14A plainly says they are.

 

[JSRG]

History buffs - when did the concept of "illegal alien" first appear as a legal term in the US?

According to the Oxford English Dictionary, "OED's earliest evidence for illegal alien is from 1895, in San Antonio (Texas) Daily Light."

Of course, that doesn't mean it's the first time it was used, just the first time we've found it in a surviving written source. So there is a good chance it goes back further in either some source that didn't survive, something obscure we haven't looked at, or it could have been used verbally but not actually put into a written document yet. However, it is very implausible the term existed before 1875, because illegal aliens didn't exist before then--the first US law restricting voluntary immigration was passed in 1875 (the Page Act, limiting Chinese entry), prior to which there was no such thing as an illegal alien in the United States.

So the term itself would appear to have arisen sometime in the 1875-1895 period. But you didn't specifically ask about the general term's usage, but when it first appeared as a legal term. And on that one... that one I'm not so sure. It really depends on how strictly you define "legal" term.

 

[JSRG]

The subject of Indians was indeed openly discussed, some were worried that Indians would be included. But it was pointed by Senator Howard, who was the author of the citizenship clause, that even though Indians were born here that did not automatically make them “subject to the jurisdiction" of the United States. If Indians were not considered citizens then no way would children of illegals whose allegiance was not to the U.S. be considered citizens.

Please give us the exact quote you are referring to by Senator Howard and also preferably where it can be located. Vague assertions like this are useless. You have done this multiple times, where you claim someone said something, but you decline to give us the actual quote.

I have some guesses as to what statements you are referring to, but I'm not going to try to preemptively offer an argument. What is the exact quote you allude to?

 

[Valletta]

Thats false.... because the 14A plainly says they are.

Try looking at it from another angle. Indians were not granted citizenship until 1924, LONG after the 14th Amendment. How (on what legal basis) did the 14th Amendment exclude Indians from citizenship?

 

[Goonie]

Try looking at it from another angle. Indians were not granted citizenship until 1924, LONG after the 14th Amendment. How (on what legal basis) did the 14th Amendment exclude Indians from citizenship?

Because they as the original inhabitants of the land were under their own Jurisdiction?

 

[durangodawood]

Try looking at it from another angle. Indians were not granted citizenship until 1924, LONG after the 14th Amendment. How (on what legal basis) did the 14th Amendment exclude Indians from citizenship?

Various Indian tribes were considered sovereign nations - nominally at least. So their inhabitants were presumed citizen of their own nations.

 

[Valletta]

Various Indian tribes were considered sovereign nations - nominally at least. So their inhabitants were presumed citizen of their own nations.

How do you think the 14th Amendment distinguishes between citizens of sovereign nations who come to the United illegally and whose children are born here and the Indians? That is, why would these groups be treated differently under the 14th Amendment in regard to citizenship?

 

[durangodawood]

How do you think the 14th Amendment distinguishes between citizens of sovereign nations who come to the United illegally and whose children are born here and the Indians? That is, why would these groups be treated differently under the 14th Amndment in regard to citizenship?

First off, you'll have to ask the people who clearly expressed in the 14A that they wished this to be so.

My sense is that the the US wanted Indians to generally be citizens of their own nations and not to integrate with the general US population.

All this second guessing is interesting. But none of it changes the plain expression of the 14A. I agree that birthright citizenship is now a problem. But if we can just strike out parts of the constitution by executive order, then we've lost our foundation as a country.

 

[Valletta]

Please give us the exact quote you are referring to by Senator Howard and also preferably where it can be located. Vague assertions like this are useless. You have done this multiple times, where you claim someone said something, but you decline to give us the actual quote.

I have some guesses as to what statements you are referring to, but I'm not going to try to preemptively offer an argument. What is the exact quote you allude to?

The key quote is when Senator Howard agrees with Turnbull, as per excerpts from the following excellent article by Ben Crenshaw:

Illinois Senator Lyman Trumbull explained what “subject to the jurisdiction” meant: “The 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 ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means” (p. 2893). . . .

While the specific syntax and meaning of “foreigners, aliens, who belong to the families of ambassadors or foreign ministers” has been fiercely debated, the overall meaning of the phrase is clear, especially in the context of the 1866 Civil Rights Act. Sen. Howard went on to agree with Sen. Turnbull in describing “jurisdiction” as political allegiance to the U.S. Constitution:

I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power 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 (p. 2895).

The End of Birthright Citizenship | Ben R. Crenshaw

A Closer Look at the 14th Amendment

americanreformer.org

 

[JSRG]

Try looking at it from another angle. Indians were not granted citizenship until 1924, LONG after the 14th Amendment. How (on what legal basis) did the 14th Amendment exclude Indians from citizenship?

Because the Native Americans were regarded as foreign powers and therefore not subject to the full jurisdiction of the United States.

Normally, there is a fairly clear distinction between what is foreign and what is not in a country: What is foreign is everything outside of the country. The Native Americans posed a unique challenge to this, as they were within the United States, but were not regarded as part of the United States as everything else in it. They occupied a sort of middle ground between the United States and foreign countries like Mexico or Canada. Thus, the United States, while putting some regulations upon them, did not apply the full extent of its laws. While there has been a trend of increasing ownership by the United States of the reservations, they even to this day are not fully subject to the laws of the United States. An obvious case of this is "Indian casinos", which have gained popularity because they can run a casino much more easily than anyone else due to being generally exempt from gambling laws.

This point was indeed made in the ratification debates, of how the Native Americans, at least the ones on their reservations, were unaffected by many laws of the United States. Senator Trumbull gave several examples of such, such as the inability to sue them in court ("Can you sue a Navajoe Indian in court?") or the fact the United States does not handle thefts or robberies they commit upon themselves ("Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?"). These quotes can be found in page 2893 of the 1866 Congressional Record, and were cited as examples of how they are not subject to the US's jurisdiction. While some of these examples ironically were negated because the United States did take ownership of those (the Major Crimes Act caused the United States to take control of what it regarded as major crimes--murders, rapes, burglaries, larcenies, and arson--even when it is one Native American committing it upon another on the reservation), it still stands because it does not take control of all crimes, as is the case everywhere else in the country.

Trumbull also further confirms that "If they are there and within the jurisdiction of Colorado and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed."

Heck, here's the full exchange. For some context, here they are arguing about whether the phrase "excluding Indians not taxed" to the Citizenship Clause should be done. Some felt this clarified that Native Americans were exempt, whereas others opposed it due to seeing it as unnecessary and opening up all kinds of questions about whether the government can just give citizenship just by taxing them:

Mr. TRUMBULL. Of course my opinion is not any better than that of any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The 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." Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe 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 would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty? The Senator himself has brought before us a great many treaties this session in order to get control of those people.

If you introduce the words "not taxed," that is a very indefinite expression. What does "excluding Indians not taxed" mean? You will have just as much difficulty in regard to those Indians that you say are in Colorado, where there are more Indians than there are whites. Suppose they have property there, and it is taxed; then they are citizens.

Mr. WADE. And ought to be.

Mr. TRUMBULL. The Senator from Ohio says they ought to be. If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over 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.

It seems to me, sir, that to introduce the words suggested by the Senator from Wisconsin would not make the proposition any clearer than it is, and that it by no means embraces, or by any fair construction — by any construction, I may say —could embrace the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction. We cannot make a treaty with ourselves; it would be absurd. I think that the proposition is clear and safe as it is.

This is somewhat complicated by the fact that the US did later pass a law taking ownership of robberies and murders, but it still does not take jurisdiction of all crimes as it does in every other part of the country. The point is clear: Native American reservations are not fully under the legal authority of the United States. This is why "Indian casinos" have gained popularity: They are exempt from gambling laws that everyone else is because of the limited jurisdiction of the United States (or states) upon the reservations.

In contrast, illegal immigrants are subject to all the laws of the United States (the very requirement Trumbull gives). If one illegal immigrant commits a crime against another, they can be tried for it. They are fully liable to the laws of the United States.

As requested, this is the distinction between illegal immigrants and Native Americans.

 

[JSRG]

The key quote is when Senator Howard agrees with Turnbull, as per excerpts from the following excellent article by Ben Crenshaw:

Illinois Senator Lyman Trumbull explained what “subject to the jurisdiction” meant: “The 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 ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means” (p. 2893). . . .

This quote you offer was found in the larger quote I mentioned above. But as the larger context shows, Trumbull is talking about the effect of laws upon someone.

As is explained by Michael Ramsey in his article "Originalism and Birthright Citizenship" on pages 449-450 (footnotes omitted):

Second, in the argument over the Clause’s application to Native Americans, Senator Trumbull stated: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.” This language can be read to exclude aliens’ U.S.-born children (who often would also owe allegiance to the country of their parents’ nationality). But Trumbull likely spoke imprecisely, meaning instead (as he also said repeatedly) those over whom the United States did not have “complete” jurisdiction, as the full context of his comment indicates:

​

The 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.” Now, does the Senator from Wisconsin [Doolittle] pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else.​

​

. . .​

​

. . . It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens . . . .​

Howard, speaking shortly afterward, stated:

​

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. . . . Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction.​

This is consistent with the way others, including Senators Trumbull and Howard, used the phrase as it related to the tribes: the requirement as they understood it was that persons be fully subject to U.S. jurisdiction (which tribal members were not). In any event, here and in related passages Trumbull was discussing the application of the Citizenship Clause to the Native tribes and was not directly considering the children of aliens. Like Howard, Trumbull did not object when Conness stated that the Clause included the U.S.-born children of aliens, and as discussed below, Trumbull thought that the related provisions of the 1866 Civil Rights Act gave U.S.-born children of aliens U.S. citizenship.

While the specific syntax and meaning of “foreigners, aliens, who belong to the families of ambassadors or foreign ministers” has been fiercely debated, the overall meaning of the phrase is clear, especially in the context of the 1866 Civil Rights Act. Sen. Howard went on to agree with Sen. Turnbull in describing “jurisdiction” as political allegiance to the U.S. Constitution:

I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power 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 (p. 2895).

This portion only confirms my point: That it refers to being subject to all laws of the United States, just as citizens are. Native Americans on tribal land are not. Illegal immigrants are.

 

[RocksInMyHead]

Context, once again, shows its importance. If you're going to use someone's words to support your point, you must take those words in the full context in which they were said - especially if said person is not able to clarify their meaning themselves (such as by virtue of being deceased).

 

[Valletta]

This portion only confirms my point: That it refers to being subject to all laws of the United States, just as citizens are. Native Americans on tribal land are not. Illegal immigrants are.

Now you have added "on tribal lands." So you believe that every Indian baby born in the U.S. but NOT born on tribal land became an automatic U.S. citizen? Indians were brought up as an example. Note the context. The discussion was not about whether the Indians were on their own land in regard to law(with a crime as the example) it was a statement that an Indian crime against an Indian was not under U.S. jurisdiction because they were people of a sovereign nation.

 

[Pommer]

Easy solution, we have one day to take the US citizen test, no warning, no studying, boom, take this test now. Everyone who passed gets to keep their citizenship and those who failed, become stateless people.

I think I’d do okay until the test got to the MAGA section.