The Nebraska Unicameral session has been in full (fast, furious) swing since its opening on January 5. We’ve been taking a look at some of the many bills that have been introduced, including Senator Charlie Janssen’s LB48, which many people have characterized as “Arizona-style immigration law”, referencing the controversial SB1070.
The hearings were held on LB48 on Tuesday, March 2. Hearings are not necessarily the end of the debate. This is particularly true since there is reportedly another immigration measure, LR39, that was introduced and that has begun to stir up some controversy.
There are a number of elements in the LB48 we're examining and among them are potential implications for the very important issue of jurisdiction (at a preliminary glance, some of the same issues apparently appear in LR39). Recognizing the need for a deeper look at this subject, I had asked Linda to prepare a presentation for our January 10 meeting, which I've edited for ease of reading and reproduced here along with some additional thoughts from the follow-up discussion at the meeting.
For the purposes of discussing jurisdiction and the implications for immigration, it's necessary to take a look at some history associated with citizenship.
Dred Scott v. Sanford (1857)
The U.S. Supreme Court concluded that a person, born into slavery in Virginia, was not freed by virtue of being transported into and residing for a time within either the State of Illinois or the Territory of Wisconsin, both of which outlawed the practice of slavery within their borders.
Specifically with reference to the matter of citizenship, the Court further held that people of African descent imported into the United States and held as slaves (or their descendants, whether or not they were slaves) were not protected by the Constitution and could never be U.S. citizens.
Chief Justice Taney and President-elect Buchanan thought that the Court's decision would lay all existing sectional differences to rest, fully and finally, but they overestimated their ability to persuade abolitionists to accept constitutional law as the Supreme Court interpreted it. Far from resolving the crisis, the Dred Scott decision is now considered to have actually accelerated the country's descent into civil war.
Enacted during Reconstruction following the Civil War.
Response to continued discrimination against former slaves, particularly in the South, denying them the rights attendant upon citizenship, including the rights to:
- Make contracts
- Sue and be sued
- Testify in court
- Inherit, purchase, lease, sell, hold, and convey real and personal property, and
The Act declared that everyone "born in the United States and not subject to any foreign power" is a citizen without regard to race, color, or previous condition of slavery or involuntary servitude.
Introduced shortly after the Civil Rights Act of 1866.
Supporters feared the Supreme Court would declare the Civil Rights Act of 1866 unconstitutional and supported the Fourteenth Amendment in an effort to forestall any such ruling by the Court.
Section 1. 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.
". . ., and subject to the jurisdiction thereof, . . ."
WHAT DOES THAT MEAN?
GiN is committed to the concept of ORIGINALISM: (from our About page)
The Constitution is an enduring document, not a living, evolving one. Consequently, a proper interpretation of the Constitution can only be achieved by reference to the original meaning of the words it contains.
An understanding of original meaning requires consideration of the words themselves and their context, as well as history, tradition, and legal precedent, the latter grounded in American jurisprudence as opposed to that of foreign jurisdictions. A judge’s consideration of “values” and of consequences evaluated in light of those values is inconsistent with the rule of law and outside the proper role of a judge.
Using the concept of Originalism, as defined above, one can examine a phrase contained in the Constitution, step by step:
1. The words themselves and their context:
AND is a conjunction. When used in the context of a list, it implies plurality rather than the singular.
If a person is born in the United States, he or she is physically in the United States at birth.
To construe “subject to the jurisdiction thereof” as meaning within the boundaries of the United States reduces them to a redundancy. In other words, the phrase would literally mean:
“All persons born . . . in the United States, and in the United States, are citizens of the United States and of the State wherein they reside.”
"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).
2. What's the history and tradition behind the adoption of this language?
Senator Jacob Howard (MI) introduced the proposed amendment for consideration by Congress. In discussing the meaning of “and subject to the jurisdiction thereof,” Sen. Howard stated:
“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.”
Senator Howard also said:
“This amendment which I have offered is simply declaratory of what I regard as the law of the land already . . .”
(Arguably, a reference to the Civil Rights Act of 1866.)
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase "and subject to the jurisdiction thereof" into the Fourteenth Amendment explained:
"[T]he 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."
(An even more clear reference to language in the Civil Rights Act of 1866.)
There are many other examples similar to the ones above, sufficient to demonstrate that this was the general understanding of the clause when the proposed amendment was discussed in Congress (although there were a few Congressmen who stated the language would render anyone born within U.S. borders citizens).
3. Legal precedent:
John Elk was born on an Indian Reservation.
As an adult, he renounced his allegiance to his tribe, moved to non-reservation U.S. territory (Omaha, Nebraska), and there attempted to register to vote, claiming citizenship under Section 1 of the Fourteenth Amendment.
Wilkins, the registrar of voters in the district where Elk lived, refused to register Elk on the grounds that he was not a citizen of the U.S.
The U.S. Supreme Court held:
Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” with whom the United States dealt with through treaties and acts of Congress.
Thus, born a member of an Indian tribe, even on American soil, Elk could not meet the allegiance test of the jurisdictional phrase because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, and not to the United States.
The Court held Elk was not “subject to the jurisdiction” of the United States at birth. “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”
But just 14 years later, the Court reached the opposite conclusion:
Wong Kim Ark was born in the U.S. to parents who were Chinese immigrants and, apparently, legal resident aliens (i.e., they remained citizens of China although living and running a business in the U.S. for a period of years).
The parents returned to China in 1890, and Wong Kim Ark went to visit them there in 1894, returning to the U.S. from that visit in 1894.
He was detained upon seeking re-entry into the U.S. on the grounds that, because his parents were Chinese citizens and owed their allegiance to China, Wong Kim Ark, although born in the U.S., was also a Chinese citizen.
Distinguished Elk v. Wilkins as limited solely to Native Americans. This is not as surprising as it may seem at first reading. In many respects, recognition of Native Americans as a minority group and acknowledgment of their civil rights came even more slowly than for African Americans. For instance, the Civil Rights Act of 1866 specifically "exclud[ed] Indians not taxed" from its birthright citizenship provision.
HELD: The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English Common Law, which had included all native-born children except for those who were: (1) born to foreign rulers or diplomats, (2) born on foreign public ships, or (3) born to enemy forces engaged in hostile occupation of the country's territory.
The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically incorporated these exceptions (plus a fourth — namely, that Indian tribes "not taxed" were not considered subject to U.S. jurisdiction—and that since none of these exceptions applied to Wong's situation, Wong was a U.S. citizen, regardless of the fact that his parents were not U.S. citizens (and were, in fact, ineligible ever to become U.S. citizens because of the Chinese Exclusion Act).
Where does that leave us?
Considering the citizenship clause from the perspective of originalism, at least two arguments can be made:
- The Wong Kim Ark decision was wrongly decided. Even though there is some legal basis to support this contention (i.e., that the interpretation of the citizenship clause runs counter to legislative intent and the original meaning of the words used therein), there is always a great deal of reluctance on the part of the Court to upset settled precedent. Without more, it is unlikely such an argument would prevail.
- If the English Common Law exceptions recognized by the Court in Wong Kim Ark are to apply, the children of illegal aliens are arguably more similar to exception number (3) -- children born to enemy forces engaged in hostile occupation of the country's territory -- and should be denied birthright citizenship under Section 1 of the Fourteenth Amendment on that basis. In today's political climate, this contention would unleash a firestorm of criticism upon anyone with the temerity to assert it. Even setting that aside, there are legitimate questions as to whether the facts support the analogy. BUT videos like the one below and the Absolut vodka ad picture, give some credence to the argument.
At the January 10 meeting, there was further discussion of this issue, with a number of questions raised, associated with the 14th Amendment and the implications when interpreted according to long standing legal standards.
At the time of the meeting, our preliminary survey of relevant court cases had only turned up Elk and Wong. We are continuing our research work and have just discovered some additional information, which we've only started to dive into. One of the things we're looking at is a research paper entitled "Regulation of Immigration is Historically a State Function".
Article I, Section 8 of the Constitution enumerates the powers of the US Congress. Included in that list is, "To establish an uniform Rule of Naturalization,". Naturalization is the process by which someone becomes a citizen.
The Constitution does not enumerate immigration as falling under the Federal government's power. Immigration is simply "the act of moving to or settling in another region or country, temporarily or permanently".
It turns out that immigration laws were originally handled by the States. Once an alien was present within the borders of a state, it was also permissible for that state to deny certain rights to that resident alien that citizens take for granted. In fact, it seems that a number of state laws "discriminating" between citizens and aliens in this manner are still on the books. How many, we don't yet know. A good example of one law is right here in Nebraska; foreign nationals are prohibited from owning or leasing property for more than five years.
It's very unclear when immigration became a Federal issue - did it occur legislatively in Congress or through bureaucratic regulation? The Bureau of Immigration and Naturalization was created by federal law in 1906. So, certainly, by that time, it was being treated as within the purview of the federal (general) government.
Just because something is done at one time and another way now doesn't necessarily indicate which is the RIGHT way. The question remains: Is immigration properly handled as a State or Federal issue?
These questions are highly relevant, considering that LB48, the immigration measure introduced by Senator Janssen, includes language that would actually codify Federal authority over immigration into Nebraska law. Is that a good idea? Further, is it not a relevant question: If there are existing immigration statues on our books, including the law pertaining to property, are there already adequate laws available that are simply not being rigorously and consistently enforced?
We are looking into all of these questions and hope to have some answers very soon. Again, one of the things we are looking at is "Regulation of Immigration is Historically a State Function", which references many court cases on this subject.