On Sunday, April 9, 2017 at 5:22:13 PM UTC-4, Rudy Canoza wrote:
From Feudalism to Consent: Rethinking Birthright Citizenship
by John C. Eastman, Ph.D
http://www.heritage.org/Research/LegalIssues/lm18.cfm
It is today routinely believed that under the CitiÂ*zenship Clause of the
Fourteenth Amendment, mere birth on U.S. soil is sufficient to obtain
U.S. citizenÂ*ship. However strong this commonly believed interÂ*pretation
might appear, it is incompatible not only with the text of the
Citizenship Clause (particularly as informed by the debate surrounding
its adoption), but also with the political theory of the American Founding.
It is time for Congress to reassert its plenary authority and make
clear, by resolution, its view that the €śsubject to the jurisdiction€ť
phrase of the CitizenÂ*ship Clause has meaning of fundamental importance
to the naturalization policy of the nation.
The Original Understanding of the Citizenship Clause
The Citizenship Clause of the Fourteenth AmendÂ*ment provides that €śAll
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.€ť[1] As manifest by the conÂ*junctive €śand,€ť the
clause mandates citizenship to those who meet both of the constitutional
prerequiÂ*sites: (1) birth (or naturalization) in the United States and
(2) being subject to the jurisdiction of the United States.
The widely held, though erroneous, view today is that any person
entering the territory of the United States€”even for a short visit; even
illegally€”is considered to have subjected himself to the jurisÂ*diction
of the United States, which is to say, subÂ*jected himself to the laws of
the United States. Surely one who is actually born in the United States
is therefore €śsubject to the jurisdiction€ť of the United States and
entitled to full citizenship as a result, or so the common reasoning goes..
Textually, such an interpretation is manifestly erroneous, for it
renders the entire €śsubject to the jurisdiction€ť clause redundant.
Anyone who is €śborn€ť in the United States is, under this
interpreÂ*tation, necessarily €śsubject to the jurisdiction€ť of the United
States. Yet it is a well-established docÂ*trine of legal interpretation
that legal texts, includÂ*ing the Constitution, are not to be interpreted
to create redundancy unless any other interpretation would lead to
absurd results.[2]
This is manifestly bull****. There is no redundancy. "Subject to the jurisdiction of" delineates between those who are, for example, foreign diplomats (and their children). That's just one example.
There are several USSC cases that have decided the issue, in contradiction to Eastman's crackpot interpretation.
This is something that Heritage does from time to time. Essentially, they want to overturn large amounts of precedent. They aren't going to get anywhere with this course of argument.
If they want to argue legitimately against birthright citizenship, they should make a case for a constitutional amendment.
--
Ed Huntress