Donald Trump released his eighteen-point immigration plan yesterday. Any news organ having an objective mission would give each point as much attention as any other. All eighteen speak to how the late Senator Edward M. Kennedy (D-Mass.) broke our immigration system in 1965. To say nothing of how future Senators, and Presidents, broke it further since.
But thanks to Fox News, one point has received more attention by far than any other. The managing editors of Fox News cannot seem to make up their minds whether to like Donald Trump or loathe him. (Rumors abound, for instance, that Megyn Kelly fell out of favor for her outburst during the first Republican Top Ten debate.) Beginning early this morning, Judge Andrew P. Napolitano, late of the Superior Court of New Jersey (Essex Vicinage), gave an opinion on Trump’s eighth point: end birthright citizenship.
Judge Nap rules against Donald Trump
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.
Napolitano held forth twice today on Amendment XIV Section 1, first on Fox and Friends and again on The Real Story. To sum up: the framers of that amendment intended to grant citizenship to all the former slaves of the now-conquered South. Today, says he, it grants citizenship to members of any particular group, no matter how odious other citizens might find them. If one is born on American soil (Jus soli, Law of the Soil), that alone suffices.
Your Honor, I object. I take exception to your opinion. Had you handed that opinion down as an official appellate opinion (say, from the Court of Appeals for the Third Circuit, which has jurisdiction over New Jersey), I would urge Mr. Trump to petition at once for a writ of certiorari to the Supreme Court.
A cert brief Trump might file
Herewith at least the start of a “cert brief” Mr. Trump’s general counsel might want to consider, with due advice from any of several Constitutional scholars. And from Governor (and former Representative) Nathan Deal (R-Ga.).
In February of 2005, Mr. Deal introduced, in the 109th Congress, HR 698, the Citizenship Reform Act. Amendment XIV Section 1 says more than merely, “all persons born in the United States, are citizens of the United States.” After that comma, we read, “and subject to the jurisdiction thereof.” Jurisdiction means the authority of a court to apply a body of law to a case or person before it. Mr. Deal essentially held that not all persons setting foot in the United States, subject themselves to the jurisdiction of the United States.
Magruder (American Government) pointed out at least two classes of persons who do not subject themselves to the jurisdiction of the government of the United States:
- Foreign ambassadors, other foreign ministers, consuls, their staffs, and other registered foreign agents.
- Invading enemy soldiers who occupy United States territory with hostile intent.
Anyone can readily see: neither of the above describe people subjecting themselves to American jurisdiction. By every diplomatic convention, an ambassador subjects himself to the jurisdiction of the country who sends him. Likewise, his embassy, or headquarters and living quarters, qualifies as part of the soil of his sending country, not of the soil of the host country.
And what invading soldier would ever subject himself, of his own will, to trial in the country he is invading?
The status of a child born to a prisoner of war should fall under the Geneva Conventions. Curiously, the International Red Cross never once treated the status of a child born out of a relationship:
- Between two prisoners of war, or
- Between a prisoner of war and a guard or visitor, or
- Between an escaped prisoner of war and a civilian in the holding country.
A soldier stationed or training temporarily in the United States, would stay under a status-of-forces agreement. That agreement would government whether, and when, said soldier would subject himself to the jurisdiction of American courts. Such an agreement might specify that no such soldier falls under American jurisdiction. In that case, the Constitution would not grant birthright citizenship to a child born, say, to two soldiers stationed or training in the United States under that agreement. Congress could, by law, grant, or refuse, such birthright citizenship. (If the soldier involved had a relationship with an American citizen, and the child was born on American soil, Amendment XIV Section 1 might apply.)
Obviously Donald Trump did not consider any of these cases. Nor did he need to. The case at hand involves an illegal immigrant, crossing into the United States and giving birth after arrival.
Governor Deal proposed, in HR 698, to declare: illegal immigrants do not subject themselves to American jurisdiction. In particular, Governor Deal’s original law set strict criteria to declare what sort of child would subject itself to American jurisdiction:
- A child born in wedlock, if either parent was a citizen, national, or lawful resident at the time, or
- A child born out of wedlock, if the mother was a citizen, national, or lawful resident at the time.
An illegal alien cannot qualify under either of these criteria.
The American Citizenship Reform Act did not pass. But surely Donald Trump would intend to find another Representative to re-introduce HR 698 from the 105th Congress, see it pass, and sign it.
Where now does Judge Napolitano’s argument stand? Now he must argue that Amendment XIV does not distinguish between classes of children or their parents. More than that, Judge Napolitano assumes, a priori, that any child born in the United States subjects itself to the jurisdiction of American courts.
Donald Trump should ask Judge Napolitano, and ask the Justices of the Supreme Court if necessary, to consider that assumption, and whether it holds logically. Shall the United States Supreme Court declare that the children of foreign diplomats, if they be born in the infirmaries of their respective embassies or even in labor-and-delivery suites in American hospitals, gain American citizenship by birthright? Shall invading soldiers see their children become birthright citizens of the United States if they be born while said soldiers were occupying American soil with hostile intent?
Judge Napolitano suggests Donald Trump did not think the matter through. The learned judge needs to think this through. Surely he would recognize the utter absurdity of the above propositions. He then might recognize that “being born in the United States” does not automatically subject one to its jurisdiction. That might lead him to conclude that Congress may by law declare the children of illegal aliens out of the jurisdiction of the United State and therefore not birthright citizens.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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