Subject to the jurisdiction thereof ...

by Peach Pie
Peach State Voice (Atlanta)

Politicizing Citizenship

Thomas Nast captured the mood of the nation on November 22, 1869 with this award winning political cartoon in Harpers Weekly. One year after the ratification of the 14^th Amendment political party's were staking out territory and demogouging the issue of citizenship. Indians, blacks, chinese, whites, were the potential votes and head counts for representation in the House of Representatives. The new politcial cause celebre´- citizenship.

The current rhetoric on citizenship in regards to “Anchor Babies” - those children born to illegal immigrants - is incoherent and incompetent. The political ruling class don't hear the public's deafening outcry against illegal immigration and citizenship, as they recklessly pander to new voting blocks and turn their backs on good hard-working Americans. Both the Democrats and Republicans wrestle to gain favor with one immigrant group or another, trampling on “States Rights” and the people. It became fashionable to politicize citizenship on June 13, 1866 when H.R. 127 (the 14^th Amendment) was introduced in the House of Representatives.

From the ratification of the United States Constitution in 1789 to the onset of the War of Northern Aggression (Civil War) in 1861, Northern and Western Europeans mostly immigrated to the Northeast. Citizenship during this period was a state issue - “States Rights”. A person was a citizen of a state within the union of the United States and by the Constitution a citizen in all other states. On July 28, 1866 that all changed when the Federal government mandated to all the states whom would be a citizen.

The Citizenship intention of the 14^th Amendment is very clear;

Section 1, 14th 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

1. The “Citizenship Clause” ensured ex-slaves their fundamental rights that belong to all citizens of the United States by virtue of citizenship under Article IV, Sec. II of the U.S. Constitution wherever they traveled within the Union, reversing the horrible Supreme Court decision of Dred Scott v. Sanford of 1857.
2. The “Due Process” Clause ensured ex-slaves were afforded “Equal Protection” and “Due Process” by incorporating the 5^th Amendment to the states. The 5^th Amendment is the “Due Process” clause w ritten into the Bill of Rights as a prohibition to the Federal government.

Sen. Jacob M. Howard (R-MI) the author of the citizenship clause told us exactly what it means and its intended scope as was introduced in the United States Senate in 1866 by H.R. 127.

Jacob M. Howard

“... I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”¹

Lyman Trumbull

Senate Judiciary Committee Chairman Lyman Trumbull participated in the debate, and stated; "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."²

Aboriginals (Indians) born on this soil were not included, because they held allegiance to their tribes and Indian nations. Chinese aliens in California, children of foreign nationals and ambass adors, and children of illegal immigrants were not subject to the jurisdiction of the United States. Likewise, anchor babies, those children born to illegal immigrants are not citizens, because they and their parents are not subject to the jurisdiction of the United States.

Absent from the debates was any consideration for the will of the people in the individual states -“States Rights”. During that same debate on May 30^th, 1866 Senator Edgar Cowan of Pennsylvania objected to the citizenship clause he said; 'Is the child of the Chinese immigrant in California a citizen?' Senator John Conness of California said; 'yes. The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens.'

*** STATES RIGHTS DIED ON PALM SUNDAY IN 1865 AT APPOMATTOX COURTHOUSE ***

Senator Coness' reply illustrated one important outcome of Lee's surrender at Appomattox - “States Rights” was dead. The Federal government was mandating whom was to be deemed a citizen within a sovereign state. Oddly enough it was the Democrats in Congress that wanted the decision of citizenship left to the individual states. Ohio originally ratified the 14^th Amendment on January 4, 1867, but rescinded it one year later on January 15, 1868 after the Democrats took power in the state legislature. The principal reason for this was a fear among a substantial number of white Ohioans that African Americans were receiving too many rights. California rejected the 14^th Amendment on March 20, 1868 by a vote of 46 to 29. ³ New Jersey originally ratified the 14^th Amendment on September 11, 1866, but rescinded the vote March 27, 1868 because the Republicans in the Senate were violating Article V of the Constitution: "No State, without its consent, shall be deprived of its equal suffrage in the Senate." Twenty-three Senators and 80 Congressmen from eleven states were not present.

Opposition in the South was two fold; 1. Political – States Rights - [Article 5 of the Constitution] and 2) Social - Federal interference in a sovereign society.

The Georgia Legislature, by Resolution on November 1866, rejected the Amendment and protested as follows:

Since the reorganization of the State government, Georgia has elected Senators and Representatives. So has every other State. They have been arbitrarily refused admission to their seats, not on the ground that the qualifications of the members elected did not conform to the fourth paragraph, second section, first article of the Constitution, but because their right of representation was denied by a portion of the States having equal but not greater rights than themselves. ...

This amendment is tendered to Georgia for ratification, under that power in the Constitution which authorizes two-thirds of the Congress to propose amendments. We have endeavored to establish that Georgia had a right, in the first place, as part of the Congress to act upon the question, "Shall these amendments be proposed?" Every other excluded State had the same right.

The first constitutional privilege has been arbitrarily denied. Had these amendments been submitted to a constitutional Congress, they never would have been proposed to the States. Two-thirds of the whole Congress never would have proposed to eleven States voluntarily to reduce their political power in the Union, and at the same time, disfranchise the larger portion of the intellect, integrity and patriotism of the eleven co-equal States.⁴

Clearly the State of Georgia relying on states right insisted on participation in Amending the Constitution.

Southern Democrat opposition to the 14^th Amendment also hinged on the people's opposition of the Freedman's Bureau interference in their sovereign society.

The Freedman's Bureau was created in March 1865 to address the issue of newly freed slaves. It was attacked by Southern whites for organizing blacks against their former masters, providing job opportunities, giving land grants, and essentially using tax money to assist ex-slaves to re enter society. The Democrats ran on a platform that the Republicans were giving blacks too many rights, which would lower the status of whites.

Northern confusion to opposition was expressed in a New York Times article; “it did not impose negro suffrage, but in case the franchise should not be given to negroes, it reduced representation.”⁵

In the end the Southern States ratified the 14^th Amendment in order to be allowed to re enter the union and be seated in Congress. Georgia ratified the 14^th Amendment on Tuesday July 21, 1868 and William Seward, Secretary of State, certified a July 9, 1868 vote inserting the 14^th Amendment as part of the Constitution. No longer could individual states decide which persons could hold citizenship.

The “subject to the jurisdiction thereof” clause of the 14^th Amendment was upheld twice by the Supreme Court; 1. The Slaughter-House Cases (1873) and 2. Elk v. Wilkins (1885). There are many sources available to help you understand both cases.

In the end citizenship is defined and granted by US CODE, TITLE 8, CHAPTER 12, SUBCHAPTER III, Part 1 §1401⁶ . The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;⁷

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

(A) honorably serving with the Armed Forces of the United States, or

(B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Section 1401 (g) of this title shall be considered to have been and to be applicable to a child born outside of the United States and its outlying possessions after January 12, 1941, and before December 24, 1952, of parents one of whom is a citizen of the United States who has served in the Armed Forces of the United States after December 31, 1946, and before December 24, 1952, and whose case does not come within the provisions of section 201(g) or (i) of the Nationality Act of 1940.

I see no reference to children born in this country by illegal immigrants being automatically granted citizenship. What I see and hear everyday are people politicizing the issue of citizenship in direct opposition to the will of the people of this nation.

Anchor Babies, those children born to illegal immigrants are not citizens

1 Congressional Globe, Senate, 39th Congress, 1^st Session May 30^th , 1866 page 2890

2 Congressional Globe, Senate, 39^th Congress, 1^st Session May 30^th , 1866, page 2893

3New York Times, Pacific Coast, March 21, 1868

4 Georgia House Journal, November 9, 1866 p 66-67

5 New York Times, July 17, 1868

6http://www.law.cornell.edu/uscode/8/1401.html

7 Indian Citizenship Act of 1924 proclaimed: "BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. (Approved June 2, 1924)"