[continued from previous message]   
      
   the Expatriation Act of 1868, which provided simply that “the right of   
   expatriation is a natural and inherent right of all people,   
   indispensable to the enjoyment of the rights of life, liberty, and the   
   pursuit of happi­ness,” it necessarily rejected the feudal birthright   
   citizenship doctrine of medieval England as fun­damentally incompatible   
   with the principles of the Declaration of Independence. As   
   Representa­tive Woodward of Pennsylvania noted on the floor of the House   
   of Representatives: “It is high time that feudalism were driven from our   
   shores and eliminated from our law, and now is the time to declare it.”[35]   
      
   Such remnants of feudalism were rejected by our nation’s Founders when   
   they declared to a candid world that they no longer owed allegiance to   
   the king of their birth. They were rejected again by the Congress in   
   1866 and by the nation when it ratified the Fourteenth Amendment.   
      
   Reviving Congress’s Constitutional Power Over Naturalization   
      
   It is time for the courts, and for the political branches as well, to   
   revisit Justice Gray’s erroneous interpretation of the Citizenship   
   Clause, restoring to the constitutional mandate what its drafters   
   actually intended: that only a complete jurisdic­tion, of the kind that   
   brings with it a total and exclusive allegiance, is sufficient to   
   qualify for the grant of citizenship to which the people of the United   
   States actually consented.   
      
   Of course, Congress has in analogous contexts been hesitant to exercise   
   its own constitutional authority to interpret the Constitution in ways   
   contrary to the pronouncements of the courts. Even if that course is   
   warranted in most situations so as to avoid a constitutional conflict   
   with a co-equal branch of the government, it is not war­ranted here for   
   at least two reasons.   
      
   First, as the Supreme Court itself has repeat­edly acknowledged,   
   Congress’s power over natu­ralization is “plenary,” while “judicial   
   power over immigration and naturalization is extremely lim­ited.”[36]   
   While that recognition of plenary power does not permit Congress to dip   
   below the con­stitutional floor, it does counsel against any judi­cial   
   interpretation that provides a broader grant of citizenship than is   
   actually supported by the Constitution’s text.   
      
   Second, the gloss that has been placed on the Wong Kim Ark decision is   
   actually much broader than the actual holding of the case. Congress   
   should therefore adopt a narrow reading of the decision that does not   
   intrude on the plenary power of Congress in this area any more than the   
   actual holding of the case requires. Wong Kim Ark’s parents were   
   actually in this country both legally and permanently, yet were barred   
   from even pursuing citizenship (and renouncing their former allegiance)   
   by a treaty that closed that door to all Chinese immigrants. They were   
   therefore as fully subject to the jurisdiction of the United States as   
   they were legally permitted to be, and under those circumstances, it is   
   not a surprise that the Court would extend the Constitution’s grant of   
   birthright citizenship to their children. But the effort to read Wong   
   Kim Ark more broadly than that, as interpreting the Citizenship Clause   
   to con­fer birthright citizenship on the children of those not subject   
   to the full and sovereign (as opposed to territorial) jurisdiction of   
   the United States, not only ignores the text, history, and theory of the   
   Citizenship Clause, but also permits the Court to intrude upon a plenary   
   power assigned to Con­gress itself.   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)