Part 6 - Birthright Citizenship and the 14th amendment

Introduction
The Debate in the Senate - Sen. Howard's Previous Remarks
The Debate in the Senate – Sen. Wade’s Proposal
The Debate in the Senate - Sen. Howard’s Amendment
The Debate in the Senate - Complete Jurisdiction
The Debate in the Senate - More on Complete Jurisdiction

Sen. Trumbull did not stop with just these few statements in his explanation for why the Indians were not within the jurisdiction of the United States, but his train of argument was interrupted by Senator Wade who asserted that certain Indians should be made citizens by the proposed amendment.  Sen. Trumbull actually agreed with Sen. Wade and explained that if some Indians were to buy land in Colorado, for example, and

“If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed.”
 
Sen. Trumbull then returned to his explanation for why the Indians were not considered to be within the jurisdiction of the United States.  He said:

“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.’ Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.”
 
As was the case with Sen. Trumbull’s previous list of questions, there are many who focus on the first sentence of this paragraph and ignore all of the questions which Sen. Trumbull included as tests to determine whether the Indians were or were not subject to the jurisdiction of the United States.  And just as we saw before, each of these questions which were answered in the negative when applied to the Indians are actually answered in the affirmative when applied to illegal aliens. 

Can Congress pass a law subjecting illegal aliens with whom we have no treaty to the laws and regulations of civilized life?  Yes. They can, and they have done so on numerous occasions.
 
Can the states punish illegal aliens for instituting among themselves their own regulations such as Sharia law?  Yes.  They can, and they have.  14 separate anti-Sharia law bills have been enacted among the several states, and these laws are applied to both legal and illegal immigrants alike.
 
 Does the Government of the United States have jurisdiction over murders and robberies and other crimes committed by one illegal alien upon another?  Yes.  Our government has the right to try and punish an illegal alien for a crime committed against another illegal alien.  We do not turn a blind eye to the plights of illegal aliens who are abused and murdered by other illegal aliens.  In fact, the Supreme Court addressed a question similar to this in Zadvydas v. Davis and cited a lengthy history of precedent in support of their conclusion that:

“once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”
 
Once again we can see that none of Sen. Trumbull’s reasons for excluding Indians from birthright citizenship have any application to immigrants even if those immigrants have entered the nation illegally.  But there is another aspect of Sen. Trumbull’s questions that can be observed here.  Most, if not all, of the questions that Sen. Trumbull asked to demonstrate that the Indians were not subject to the jurisdiction of the United States in the sense of the citizenship clause also demonstrate that the Indians were not considered to be within the jurisdiction of the United States in the sense of the equal protection clause.  In other words, Sen. Trumbull’s questions reveal that the Fourteenth Amendment’s two references to the jurisdiction of the United States are closely related to each other.

The Debate in the Senate - Sovereignty Over the Soil
U.S. vs. Wong Kim Ark - British Citizenship
U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
More Posts Coming Soon...