Anti-Constitution radicals attack citizenship

Posted by AzBlueMeanie:

Howard Fischer reports today on the GOP talking point du jour: Report: 1 in 15 kids in U.S. has illegal immigrant parent – East Valley Tribune:

About one out of every 15 children in the United States was born to a family where at least one parent is in this country illegally, according to a new report Wednesday.

And four out of five of those 5.1 million children — including 340,000 born in just 2008 — are citizens because they were born in the United States, the Pew Hispanic Center concluded. That, according to some, makes them “anchor babies'' for their illegal parents.

No, this makes them U.S. citizens entitled to the privileges and immunities of citizenship under the U.S. Constitution. The media must really stop using this nativist/racist pejorative term to describe innocent children.

The figures, which the organization calculated based on 2009 U.S. Census Bureau estimates, are the best estimates to date of the scope of the issue which has resulted in calls to amend the U.S. Constitution to deny automatic citizenship to children solely by virtue of their birth within this country.

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The numbers will figure in the debate over the future of the 14th Amendment.

It states that children born or naturalized in the United States are citizens of both this country and the state where they reside. Courts have interpreted that to entitle citizenship to those born in the United States regardless of whether one or both parents had no legal right to be here.

Some foes, including Sen. Russell Pearce, R-Mesa, argue those rulings are flawed.

He noted that the amendment makes its provisions conditional on the children being "subject to the jurisdiction'' of this country. Pearce said courts, citing that language, concluded for years that did not entitle Native Americans to citizenship.

This is because Native Americans who were members of "tribes not taxed" by the U.S. were "not subject to the jurisdiction" of the U.S. (tribes are sovereign nations with which the U.S. has entered into treaties as sovereign nations).

Elk v. Wilkins (1884) established that Native American tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisdiction of the United States. Children born to these Native American tribes therefore did not automatically receive citizenship under the Fourteenth Amendment if they voluntarily left their tribe. Indian tribes that paid taxes were exempt from this ruling; their peoples were already citizens by an earlier act of Congress, and all non-citizen Native Americans ("Indians") were subsequently made citizens by the Indian Citizenship Act of 1924.

Native Americans by definition are not foreigners — they are native to this country. Duh!

Pearce is weighing whether to have Arizona enact a state law denying birth certificates to children born in Arizona unless they could show at least one parent is in this country legally. That would provoke a lawsuit, which is what he is really after.

Pearce, who fancies himself a constitutional law expert, seems to believe that amending the Constitution is not necessary, despite the weight of expert legal opinion to the contrary. "Congress could fix it tomorrow,'' he said. "All it needs is clarification.''

The man is an idiot.

To deprive a U.S. citizen of his/her U.S. citizenship based upon the "illegal" status of one or more of his/her parents arguably is a broadly expansive application of the ancient doctrine of "corruption of blood and forfeiture," which was the English common law remedy for treason. It was usually part of a Bill of Attainder, which normally sentenced the accused to death. The corruption of blood would forbid the accused's family from inheriting his property.

Article III, Sec. 3, Clause 2 of the Constitution provides that "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeitureexcept during the Life of the Person attainted." In other words, only the guilty party may suffer punishment, but not his issue (children).

The privileges and immunities of citizenship are a property right of which one cannot be deprived without due process of law. And yet that is precisely what these anti-Constitution radicals propose. They are treating illegal immigration on par with the crime of treason. They would revoke the citizenship of U.S. citizens based upon the "illegal" status of one or more of his/her parents. U.S. citizens would be deported to a country to which they have no affiliation or allegiance. And their property here in the U.S., no doubt, would be subject to forfeiture and escheat to the state government without just compensation (similar to what happened to Japanese-American citizens in California during World War II who were sent to internment camps).

To revoke the citizenship of U.S. citizens retroactively based upon the "illegal" status of one or more of his/her parents is an unconstitutional ex post facto law, i.e., laws that make an act punishable as a crime when such an act was not an offense when committed. Article I, Section 10 of the Constitution provides "no State shall pass any ex post facto Law.''

To apply the law prospectively would create two separate and unequal classes of citizens, to use J. D. Hayworth's phrase, it would grant "amnesty" to a "special class" of citizens who attained U.S. citizenship as "anchor babies" prior to enactment of Russell Pearce's misguided law. I'll bet ol' Russell never considered that he would become the godfather of "amnesty babies."

This would also violate the equal protection clause of the 14th Amendment to the Constitution. In Saenz v. Roe (1999) the U.S. Supreme Court held that the citizenship clause also protects a citizen's right to resettle in other states and then be treated equally:

[T]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: "That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence." Zobel, 457 U. S., at 69. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. … [T]he protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.

We are a mobile society. Pearce cannot infringe upon the rights of U.S. Citizens who happen to relocate to Arizona from another state which does not share his draconian view of the law. He cannot criminalize a child born in another state to one or more parents who are "illegal" status. This is why there must be uniform federal law (federal preemption) in the field of immigration law.

Sen. Pearce must be taking his marching orders again from Kris Kobach of the anti-immigrant hate group Federation for American Immigration Reform (FAIR). Hate Group Lawyer Drafted Arizona’s Anti-Immigrant Law | Hatewatch | Southern Poverty Law Center. Hasn't this yahoo already cost this state enough money on unnecessary litigation costs over his pseudo-intellectual arguments against long-standing constitutional principles? He should be subject to Rule 11 sanctions for bringing these frivolous "junk lawsuits."