Wednesday, February 9, 2011
I just read an article at Multi-American written by Leslie Berestein Rojas on February 8, 2011, entitled, “First Arizona anti-birthright citizenship bills falter in state Senate,” at http://multiamerican.scpr.org/2011/02/first-arizona-anti-birthright-citizenship-bills-falter-in-senate/. The article says: “State Senate legislation in Arizona that sought to deny automatic U.S. citizenship to children born to undocumented immigrants failed to register enough support in a committee hearing late yesterday, leading its sponsor to pull the two bills, at least for now.” The article then says that the Arizona Daily Star reported: “There were also several children who spoke against the bill, including 12-year-old Heide Portugal who said she was born in this country but her parents were not and that a measure like this, had it been in effect, would have denied her citizenship.” This writer did not state her personal opinion as to what type of U.S. citizenship this child has.
This article was then reported today, February 9, 2011, at Hispanically Speaking News, with the title, “Anti-14th Amendment Bills Fail in Arizona,” found at http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/anti-14th-amendment-bills-fail-in-arizona/5109/ . The title of the article and the following comment by the reporter struck me: “Several children spoke critically about the bill, including 12-year-old Heide Portugal, a natural-born citizen, who pointed out that if this bill had been in effect at the time of her birth, she would have been denied citizenship.”
First, let us examine who Hispanic Speaking News is. According to its own web site, “[t]he Hispanically Speaking News (HS News) site, found at http://www.hs-news.com/, is an online daily news site and virtual cultural center where we create and publish valuable, timely and culturally sensitive content in a visually charged manner. Our niche news site is here for you, in English and Español, with relevant news about and for Hispanics with hyper local content for our launch market - Chicago. There is daily news coverage, original content, cultural commentary, and an ever-growing Hispanic-centric bloggers network, all peppered with some spicy wit to keep you engaged, informed and connected. Our goal is to become your trusted, “GO-TO”, on-line source for all things Hispanic and to elevate the voice of our community; create new influence makers and engage in passionate and reasoned debate around relevant issues.” So as we can see, the owners of the site tell us that the site is a “niche news site.”
Second, let us examine the content of the “news” reported in this article. Just the title of the article, “Anti-14th Amendment” tells you what side the reporter is on. Indeed, the reporter is already telling us that what Arizona proposes to do is unconstitutional. More important, the reporter, without telling the reader that it is only his or her opinion, tells us that a child born in the U.S. to alien parents is a “natural born Citizen.” But let us examine the reporter’s “opinion.” If this Arizona child was a “natural born Citizen,” under our Constitution, no government could deny her U.S. citizenship. Neither the States nor Congress nor any court has the power to deny a “natural born Citizen” his or her sovereign citizenship. Let us not forget that the citizens made the Constitution and the government and that the Constitution and government did not make the citizens. That is why the Framers used the term “natural” and called birthright citizens “natural born Citizens” and those who are not “citizens of the United States,” showing that this membership status does not derive from positive law or any government but rather from nature. Since time immemorial, “natural” has always included both the place of one’s birth and the parents to whom one is born. There simply cannot be a “natural birth” with one of those elements missing. For this fundamental reason, American federal common law, which is based on natural law and the law of nations, has always defined a “natural born Citizen” as someone born in the country to U.S. citizen parents. See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (a “natural-born citizen” is a child born in the country to citizen parents) and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (a child born in the U.S. to alien parents who are domiciled here and not working in any foreign diplomatic capacity is born “subject to the jurisdiction” of the U.S. and therefore a born 14th Amendment “citizen of the United States; the case also cited the Minor decision and quoted its definition of a “natural-born citizen”). If someone needs a Congressional Act, treaty, or even the 14th Amendment to be a “citizen of the United States,” then that person is not an Article II “natural born Citizen.” Our U.S. Supreme Court should intervene on the side of any “natural born Citizen” whose citizenship rights may be challenged by any government.
On the other hand, when someone is not born a “natural born Citizen,” then Congress can intervene under its naturalization powers granted to it under Article 1, Section 8, Clause 4 of the Constitution. It is then that Congress can create for or deny someone citizenship rights or even impose conditions to be completed after a person’s birth in order to maintain any citizenship status Congress may grant at the time of birth. Since as early as the Naturalization Act of 1790, Congress has exerted its naturalization powers over persons born either in the United States or abroad. Congress’s power over citizenship, however, became limited in 1868 by the 14th Amendment and how the courts interpret that amendment’s “subject to the jurisdiction thereof” clause. Congress has, however, great power under the 14th Amendment which it can exert by defining “subject to the jurisdiction thereof” through Section 5 of that very amendment which allows it to enforce the provisions of the amendment. Also, Congress has great power in matters involving citizenship and immigration under the “plenary power doctrine,” which greatly limits someone’s ability to bring any judicial challenges to Congressional action in this special area.
As we can see, our “news” reporting media outlets are real busy taking a stand on the meaning of an Article II “natural born Citizen.” Here we have the “news” reporter adding his or her personal opinion that this child born in the United States to alien parents is a “natural born citizen.” This type of reporting is designed to prejudice the reading public. It should be combated. When we read or listen to “news” reporting, we have to be careful to distinguish what is the reporter’s mere recitation of confirmed “facts” versus what is the reporter’s personal opinion. Persons interested in learning what the meaning of an Article II “natural born Citizen” is should conduct their own independent research so that they can come to their own conclusion based on reasoned study rather than on what someone, including our own government or a court of law, in a conclusory manner tells them it means.
Mario Apuzzo, Esq.
February 9, 2011