Monday, September 24, 2007

NJ town comes to its senses, repeals anti-immigrant ordinance

Escondido, CA. Valley Park, MO. Farmers Branch, TX. Hazleton, PA. All towns that passed anti-immigrant ordinances, all towns that have lost in court either temporarily or permanently. Riverside, New Jersey, saw the writing on the wall. And after Hazleton was invoiced a legal bill of $2.4 million, the deterrent effect of that portion of the Civil Rights Act kicked in. There is a price for violating people's rights.

So Riverside repealed its anti-immigrant ordinance.
"I think the people realize it's the right thing to do at this time," (Mayor George) Conard said of repealing the law that put Riverside in the national spotlight last summer.

Riverside's decision drew praise from the ACLU.
"We commend Riverside for repealing this wrong-headed law," said Ed Barocas, Legal Director at the ACLU of New Jersey. "In addition to being illegal, the passage of this ordinance promoted distrust of immigrants - including those here legally - and fueled xenophobia and discrimination."
"Riverside properly recognized that trying to enforce this ordinance would be a waste of taxpayer money and a violation of the law," said Omar Jadwat, an attorney with the ACLU’s Immigrants’ Rights Project. "Other cities considering similar ordinances should take note of this vote and the fact that these discriminatory and unlawful laws do not hold up in court. Rather than blow city resources on unlawful and mean-spirited ordinances, responsible officials should seek to combat discrimination and ensure that their municipalities are fair for all of their residents."

And The Philadelphia Inquirer chimed in on Friday.
The township cited a potentially costly court battle as a reason for ditching the law. But the bigger picture is that municipalities such as Riverside and Hazleton, Pa., which passed a similar ordinance, can't do the job that the federal government ought to be doing.

Congress is still shirking its responsibility to come up with an answer for the estimated 12 million illegal immigrants in the United States.

Lawmakers need to come up with a way to sanction the illegal immigrants already here but allow them an avenue to ultimate citizenship.

Gridlock on the problem in Washington has the practical effect of creating a national policy that pretends these undocumented people simply aren't here.

Andy in Harrisburg

Labels: , ,


Anonymous Anonymous said...

Actually, Hazleton never violated anyone's rights, as the ACLU was preemptive in its Nazi tactics, convincing a moronic judge to do its bidding. Hazleton was attempting to protect the citizenss of its community from the detrimental affects of an invasion of foreigners who clearly have no right under the law to be present in this country. The mayor's efforts are laudable and the ACLU's shameful. The ACLU hasn't gotten one red cent from their suit yet. Once this makes it to the Supreme Court, the ACLU will have to eat its outrageous bill for over $2 million, and you'll eat your words, Andy. Meanwhile, my advice to Hazleton is to ignore the court, as do the illegal immigrants and their aiders and abetters. We already have an anarchy that permits illegal aliens to freely walk our streets and protest, so we may as well go hog wild and have Hazleton give the big finger to the judge.

10:53 PM  
Anonymous Anonymous said...

Eat this on birthright citizenship for the What “Subject to the Jurisdiction Thereof” Really Means

P.A. Madison on Birthright Citizenship
Updated 9/24/07

I have been bombarded lately with requests to revisit the meaning of the Fourteenth Amendments “subject to the jurisdiction thereof” language. Some desire confirmation whether the language simply implies temporary obedience to laws, while others want to confirm whether it requires something more direct and substantial. I’ll spare the reader a lengthy treatise by making this short and to the point.

Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule until the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.

One reason for the absence of a early defined national birthright rule is because States had decided for themselves who were its citizens by virtue of being born within the limits of the State.

After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. The practice of England at the time was every person born within the realm of the King was a natural born subject by virtue of birth alone. In the United States, such a rule was not strictly followed as children born to black slaves, or Indians, followed the condition of their father (natural law).

Conceivably, Congress could had from the beginning attempted to include a defined birthright rule under the laws of naturalization - whether due to place of birth or parentage - but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be its citizens.

As a rule, the nation considered only those patriotic immigrants who came here for the exclusive purpose to settling amongst us, bringing with them wealth, like habits and customs as those worthy to become part of our society. Paupers, vagabonds and imperialist were universally despised.

Imagine for a moment Congress debating during the constitutional convention, or even years following the adoption of the Constitution, a national criterion for establishing citizenship by birth of all persons as practiced under English common law. Firstly, that would have been rejected by a number of States as placing men of color on an equal footing with the Anglo-Saxon race. This in return forcing perhaps an attempt to compromise using the word “free white men,” with that in return being rejected by some northern States as repugnant of the Declaration’s “all men are created equal.”

Moreover, there undoubtly would been terrible disputes over the fact the nation was attempting to adopt common law as general law, something more than a few considered derogatory. James Madison succinctly illustrates such dilemma to George Washington:

What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.

So what was to be the premise behind America’s first and only constitutional birthright declaration in the year 1866? Simply all children born to parents owing no foreign allegiance were to be citizens of the United States.

During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden raised the question of persons born of parents from abroad temporarily in this country, and of course, the question of Indians. Chinese, if one remembers their history, where a major concern on the part of citizens on the pacific coast and occupied a great deal of the news of the time (mostly all negative).

Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian's not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.

Sen. Trumbull and Sen. Howard then settled upon a construction for “subject to the jurisdiction thereof,” with Trumbull declaring:

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 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

Sen. Trumbull further added, “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.'” Sen. Jacob Howard agreed:

[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, 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 now.

The above statements by Howard and Trumbull give us a good idea of what “subject to the jurisdiction thereof” as employed under the Fourteenth Amendment means: Absence of owing any allegiance to any other foreign power, which in return allows the United States to exercise full and complete jurisdiction over the person.

To understand how an alien might not owe allegiance to some other sovereignty upon arrival to this country, one need to look no further then the naturalization laws of the United States. Under United States law, an alien was required to make a declaration of his intention to become a citizen, and renounce all allegiance to his former government two years before he could make a final application.

Therefore, it does not require a leap of faith to understand what persons, other than citizens themselves, under the Fourteenth Amendment are citizens of the United States by birth: Those aliens who have come with the intent to become U.S. citizens, who had first compiled with the laws of naturalization in declaring their intent and renounce all prior allegiances.

Sen. Trumbull further restates the the goal of the language: "It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens..." He could only be referring to the laws of naturalization and consent to expatriation by the immigrant in order for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation.

A citizen owes the same quality of allegiance to his nation of origin as does its ambassador and foreign ministers while within the limits of another nation unless they freely decide to renounce their allegiance in accordance to law. The United States cannot subject a vacationing foreign couple to compulsory military duty or federal income tax while temporarily visiting any more then they can of another nations ambassador because the Fourteenth demands the same full and complete jurisdiction as it does with its own citizens.

In other words, it would be preposterous to consider under the meaning given to “subject to the jurisdiction thereof” that a French subject visiting the United States was not a subject of France, but completely subject to the will of the United States while within the limits of the nation without first consenting to expatriation. Would anyone for a moment contend Japanese citizens were not subjects of Japan? Why the government of Japan guarded over their citizens while in the United States like hawks, even insisting on educating them in Japanese schools.

The United States has always, as a matter of law, considered new arrivals subjects of the country from which they owed their allegiance. As a matter of law, new arrivals were recognized as bearing the allegiance of the country of their origin. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:

James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk's office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.

James Spratt would be considered completely subject to the jurisdiction of the United States with owing no other nation his allegiance under the Fourteenth Amendment. Children born to him would under the Fourteenth Amendment, be citizens of the United States even though he might not yet been awarded citizenship himself. It should be pointed out that woman were not naturalized individually, but only became naturalized by virtue of marriage to a male who became naturalized himself.

Those who were not qualified under naturalization laws of the United States to become citizens of the United States would be unable to renounce their prior allegiances and consent to the full jurisdiction of the United States as needed to become a citizen. This is how children born to Indian’s and Asians were prevented from becoming citizens themselves under the language chosen.

In 1898, some thirty years after the adoption of the Fourteenth Amendment, the United States argued a Chinese man born to Chinese parents in San Francisco could not be a citizen of the United States because his parents were not subjects of the United States at the time of his birth, but the subjects of the emperor of China. (U.S. v. Wong Kim Ark)

The Government had it right and the Supreme Court got it all wrong (deliberately) by deciding the language under old English common law, something the adopted national rule departed sharply from. Additionally, Howard made no reference to citizenship as having anything to do with common law, but virtue of "natural law" and "national law."

Under old English common law, neither expressed allegiance or, the lack of it, was a requirement for birthright. The Thirty-Ninth congress by contrast, made the lack of owing allegiance to some other sovereignty an advance prerequisite, and by doing so, departed from the common law rule.

If there is one inescapable truth to the text and debates, it is this: When Congress decided to require potential citizens to first be subject to the complete jurisdiction of the United States they by default excluded all citizens of other nations temporarily residing in the U.S. who had no intention of becoming citizens themselves or, disqualified of doing so under naturalization laws.

This was no oversight because it was too simple to declare the common law rule of jus soli if indeed that was truly the desired goal by these very competent lawyers (both Howard and Trumbull were lawyers). Instead, there were classes of persons no one desired to make citizens, while also being classes of persons national law prohibited from becoming citizens.

Aaron Sargent, a Representative from California during the Naturalization Act of 1870 debates said the Fourteenth Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. No one came forward to dispute this conclusion.

Perhaps because he was absolutely correct.

children of illegal aliens:

11:39 PM  

Post a Comment

<< Home