Nothing, not even birthright citizenship, trumps consent of the nation

· October 30, 2018  
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It’s time to reclaim our birthright. When an invading army comes to our border, can its general’s pregnant wife have the baby in our country and demand citizenship? Can our nation do anything to stop people from evading the Border Patrol, going to a hospital, and forcing a citizen upon us against our consent?

If you believe the answer is “no,” you don’t deserve to live in a sovereign nation. As Harry Reid said in 1993, “no sane country” would do such a thing. Moreover, anyone who wants to continue the practice of allowing stolen sovereignty is demonstrating that they want continued illegal immigration and that the amnesty debate is not about the logistical question of what to do with those already here.

With rumors swirling around that Trump will issue an order to stop granting birth certificates to children born to illegal immigrants, there’s a lot of ignorance about our history being propagated on the web. In chapter 4 of my book, Stolen Sovereignty, I make the full legal, historical, philosophical, and policy case against the practice of granting citizenship to illegal aliens. For today, I want to focus on one angle: the notion that there is no distinction between legal and illegal immigrants when it comes to birthright citizenship, an assertation made by leftist Justice Brennan in a footnote of the 1982 Plyler v. Doe opinion, a case in itself wrongly decided.

One thing that all sides of the so-called birthright citizenship debate forget is that nothing ever supersedes the consent of a nation. Even if one believes that Wong Kim Ark (1898) was rightly decided (here’s why it wasn’t), thereby creating a definitive floor for citizenship within the Constitution, outside Congress’ regulatory power, for kids born to all immigrants, there is no way that can apply to people who come here without the consent of the nation.

The Fourteenth Amendment stipulates two requirements for birthright citizenship: that the individual be born “in the United States and subject to the jurisdiction thereof.” Let’s put aside the debate over what “subject to the jurisdiction thereof” means. Nobody can unilaterally assert jurisdiction against the will of the nation. But even if the Fourteenth Amendment didn’t contain the second condition and only stipulated that the child must be “born in the United States,” it is beyond settled law that if you are here without consent, it is quite literally as if you are not present in this country. This concept should not only shut down the phony birthright citizenship debate once and for all, but end this notion that illegals can come here and demand other benefits or standing in court for specific status against the will of the political branches of government, including a right to an abortion, simply because they successfully landed on our soil.

No foreigner or foreign entity can control the destiny of our nation and force upon us prospectively an outcome for citizenship, judicial standing, or any other benefit against the will of the president or Congress. It’s obvious that a country can never be forced to issue citizenship against its will, for if that were the case, it would cease to be a sovereign country “free from external control,” as the term is defined by Webster’s dictionary.

This is why James Madison, in his essay on sovereignty, used the example of citizenship to explain how, in a republican society, decisions must flow with the consent of the people through their elected representatives. And there’s no greater decision for society than the future makeup of the society itself. James Madison wrote in the 1835 essay, “In the case of naturalization a new member is added to the Social compact … by a majority of the governing body deriving its powers from a majority of the individual parties to the social compact.”

Nobody can dispute that a president has the power to keep out anyone seeking entry for any reason. As Justice Thomas wrote in his concurrence in Trump v. Hawaii, “Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. … Nor could it, since the President has inherent authority to exclude aliens from the country.”

Yet I’ve been asked by friends what happens if, after we close the points of entry, the caravan sneaks onto our soil between the points of entry. The answer is simple, because nothing trumps sovereignty. Therefore, for anyone who breaks into our country without consent or overstays the terms of his or her entry, it’s as if they are physically not present on our soil. Constitutional rights on our soil, much less the ultimate prize of citizenship, only apply if you come here with consent. That is deeply rooted in social compact theory and settled law. As the court said long ago in United States v. Ju Toy (1905), a person who comes to the country illegally is to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries.

Already as far back as the 1950s, the Supreme Court had already said, “For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.” Leng May Ma v. Barber, 1958.

This is why the court said in Turner v. Williams (1904) that an inadmissible alien does not have First Amendment rights because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law.”

In the notorious Zadvydas v. Davis case (2001), the court reiterated that any alien “paroled in to the United States pending admissibility,” without having “gained [a] foothold,” has “not effected an entry.”

It’s absurd to assert that people who are supposed to be off our soil can, strictly by trespassing on it, achieve the ultimate benefit of citizenship for their kids.

The most important case that sheds light on this debate is Kaplan v. Tod (1925), when the court denied citizenship and relief from deportation to the daughter of a naturalized citizen who emigrated from Russia.

Here is a factual analysis of that case, excerpted from chapter 4 of my book:

On July 20, 1914, the Kaplan family came to Ellis Island to reunite with the father of the family, who had been working in the country for a few years. The thirteen-year-old daughter was deemed inadmissible for being “feeble minded,” but because of the outbreak of World War I, her deportation was delayed. She was handed over to the custody of the Hebrew Aid Society, which had her live together with her father until she was ordered deported in 1923.

In the meantime, the father had become a citizen three years earlier, and asserted that because his daughter was under twenty-one at the time of his naturalization and was living in the United States, she should be automatically granted citizenship alongside him, pursuant to longstanding law. But in a unanimous and terse decision, the Court swatted down the petition:

“Naturalization of parents affects minor children only ‘if dwelling in the United States.’ The appellant could not lawfully have landed in the United States in view of the express prohibition of the Act of 1910 just referred to, and until she legally landed ‘could not have dwelt within the United States.'”

The Court backhandedly rejected the notion that she “dwelt within the United States,” even though she physically lived with her father for nine years on American soil, partly with temporary permission from the government. That is because “she was still in theory of law at the boundary line, and had gained no foothold in the United States” and had never “been dwelling in the United States within the meaning of the Act.” Now stop for a moment and compare the language of the naturalization statute for those immigrant children seeking naturalization together with their parents to the wording of the Fourteenth Amendment governing those born here.

The Fourteenth Amendment requires that the child be born here and “subject to the jurisdiction thereof.” It is indisputable that even according to those opinions in which jurisdiction means territorial jurisdiction and not political jurisdiction (absurdly rendering the phrase superfluous, as noted earlier), the language of “subject to the jurisdiction” is certainly more restrictive than the purely geographical and literal phrase “dwelling in the United States.” After all, everyone concedes that Indian tribes and children born to foreign diplomats were excluded by this phrase, even though they are physically born on our soil.

Yet, the Court ruled in 1925, based on uncontested precedent, that those living here unlawfully don’t even satisfy the meaning and intent of “dwelling in the United States”—even in a case where they were granted temporary permission to live here on humanitarian grounds. It is therefore simply preposterous to assert that those who willfully violated our laws and snuck into the country without permission can secure jurisdiction for their children against the consent of the nation. As the Left would say, it’s “settled law” that illegal immigrants are considered “at the boundary line, and had gained no foothold in the United States,” irrespective of where they reside now.

The reality is that there was never a formal decision, much less a piece of legislation or a court case, mandating automatic citizenship for people who break into our country. Wong Kim Ark was about those invited in on immigrant visas. Justice Horace Gray, the author of Wong, referred to “domiciled” immigrants on 12 occasions in the case. Those promoting citizenship for illegals conveniently ignore his opinion six years earlier in Nishimura Ekiu, which clearly held that an alien not legally domiciled in this country is as if he is standing outside our soil as it relates to even due process rights, much less the right to assert jurisdiction on behalf of his child.

As illegal immigration became more common throughout the ’60s and ’70s, hospitals were never given any guidance and just lazily handed out birth certificates to everyone. The Social Security Administration and Health and Human Services were lax in oversight and never clamped down on this practice. It wasn’t until this issue became consequential, with hundreds of thousands of these new citizens every year in the early ’90s, that some in Congress demanded that it stop. It was in response to that outcry that leftists began concocting a retroactive constitutional mandate for this practice.

The proof that this was due to lax enforcement, not a deliberate legal decision, is that all sides agree that children of diplomats are excluded from citizenship. Yet there’s evidence that some of them were erroneously given birth certificates and never informed the SSA about the oversight. Trump is fully justified in using his ability to interpret the Constitution for executive purposes in the way he sees fit. I’d rather this be done through Congress, but legislators will never act.

Yes, obviously this will go to the courts, and the courts, which no longer believe in the Constitution or sovereignty, will rule that illegals can do whatever they want. But does the judiciary have exclusive and final jurisdiction over such a question that must be left to the people? This is not an individual case or controversy. This is the most sensitive national policy on citizenship. Judges certainly don’t have any more insight into this debate than our political branches of government do.

There you have it, folks. We are either a sovereign nation built upon the consent of the citizen or not. If we are told that there is nothing we can do to stop someone from invading, having a baby, and declaring this baby an American, then we no longer have America.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.