Wednesday, July 20, 2011

Plyler vs Doe Does Not Grant Birthright Citizenship to Illegal Aliens

Those that believe that footnote 10 of Plyler vs Doe somehow grants Birthright Citizenship fails to understand the actual statement as made by Justice Brennan.
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [n10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized [p212] that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
Footnote 10 states:

10. Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was

impossible to construe the words "subject to the jurisdiction thereof," in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words "within its jurisdiction," in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."

Id. at 687.

Justice Gray concluded that

[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

Id. at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912).

This refers to the section of Wong Kim Ark:

[I]t is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."

This paragraph is in conjunction with Gray discussing the case of the Schooner Exchange.
In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. See also Carlisle v. United States (1872), 16 Wall. 147, 155; Radich v. Hutchins (1877), 95 U.S. 210; Wildenhus' Case (1887), 120 U.S. 1; Chae Chan Ping v. United States (1889), 130 U.S. 581, 603, 604.
Note the bolded area, which means that if a person comes here with or without the consent of our Government they are still, by implied license, subject to our laws. This does not grant or bring them (illegal aliens) "within the allegiance" of the USA making them "subject to the jurisdiction" as defined, “Not owing allegiance to anybody else,” by Sen. Lyman Trumbull, Chairman of the Judiciary Committee.

Now, the question is why did footnote 10 end with a quote from Bouvé, Clement Lincoln (Of the Districf of Columbia Bar; Member of the American Society of International Law). A treatise on the laws governing the exclusion and expulsion of aliens in the United States. Washington, D.C. : John Byrne & Co., 1912. In which Bouve is making an argument allowing "domicile" to be the criteria of birthright citizenship and due to this, by virtue of residing here without the consent of our government, they have shown "temporary allegiance".
Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents
from acquiring a residence or domicile — it is immaterial which — in this country. True, the parents never acquired a municipal status by virtue of or under the immigration law ; and they never acquired a lawful domicile in the sense that they were never entitled to enter for the purpose of establishing a home. But the fact remains that they entered this country and proceeded to reside here, until their arrest, in enjoyment of every benefit which the law of the United States confers on persons lawfully resident here, and under the same duty to carry out their correlative obligations. Their temporary allegiance to the United States was complete and gave rise to reciprocal protection on the part of the state, unaffected by the fact that in order to enjoy and exercise the rights and duties incident thereto they had violated the immigration law.
As one should be able to conclude, Gray does not grant automatic birth right citizenship to anybody, it does however claim that WKA is a citizen by definition of his parents being domiciled and residing within the US at the time of his birth, by which his parents owed allegiance to the US as they were permitted to be here by the Treaties agreed to by the Chinese and US Governments. Domiciled as defined by Gray:
Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins (1886), 118 U.S. 356; Law Ow Bew v. United States 144 U.S. 47, 61, 62; Fong Yue Ting v. United States (1893), 149 U.S. 698, 724; Lem Moon Sing v. United States (1893), 158 U.S. 538, 547; Wong Wing v. United States (1896), 163 U.S. 228, 238.
Why would Bouve be arguing for BRC to illegal aliens in 1912 if the case of WKA granted BRC to all born within the boundaries of the USA?

Footnote 10 in Plyler vs Doe in NO WAY grants Birthright Citizenship to children born of illegal aliens, or for that matter non-immigrant visa holders, within the borders of the USA.

1 comment:

Anonymous said...

I can make neither heads nor tails of your argument here. You appear to repeatedly draw from your selected quotations the opposite meaning of what they actually appear to suggest, and then never get around to connecting the dots necessary to follow a real line of reasoning.

In short... what the heck are you actually trying to say?