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Title: Constitution Doesn’t Mandate Birthright Citizenship
Source:
Breitbart
URL Source: http://www.breitbart.com/big-govern ... andate-birthright-citizenship/
Published: Aug 18, 2015
Author: Ken Klukowski
Post Date: 2015-08-18 15:04:10 by cranky
Keywords: None
Views: 20060
Comments: 115
The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal. Media commentators have gotten this issue dead wrong. Fox News’s Judge Andrew Napolitano says the Fourteenth Amendment is “very clear” that its Citizenship Clause commands that any child born in America is automatically an American citizen. That’s not the law. It has never been the law. Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen. How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional? No. The Citizenship Clause of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Today’s debate turns on the six words, “and subject to the jurisdiction thereof.” As captured in the movie Lincoln, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and resolve of Republican President Abraham Lincoln that the proposed amendment passed Congress in 1865, sending it to the states for ratification. In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality. The Civil Rights Act included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government. The same members of Congress who voted for the Thirteenth Amendment in 1865 then voted to define citizenship for freed slaves in a federal law in 1866, then voted again months later in 1866—using only slightly different language—to put that definition of citizenship in the Constitution, language that was ultimately ratified by the states in 1868 as the Fourteenth Amendment. In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens. That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has. So why is a child born on American soil to foreign parents an American citizen by birth? Because the Fourteenth Amendment’s Citizenship Clause is a floor, not a ceiling. Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires. Congress could expand it to grant citizenship to every human being on earth, or narrow it to its constitutional minimum. Media confusion on this issue is puzzling, because the greatest legal minds in this country have discussed the issue. (Just none of them were put on camera to explain it.) Scholars including Dr. John Eastman of Chapman University, and even Attorney General Edwin Meese—the godfather of constitutional conservatism in the law—reject the myth of birthright citizenship. Nor is rejection of birthright citizenship limited to conservatives. Judge Richard Posner—a prolific scholar who, despite being appointed by Ronald Reagan, is a liberal judicial activist—wrote in 2003 in Ofoji v. Ashcroft: We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship…. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it…. The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress did not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense. It is another question as to whether Congress could strip citizenship from the children of illegals who already have it. If Congress could do that, then it could also strip citizenship from the many millions of foreigners who came to the United States legally and went through the lawful process to become Americans. There is no court precedent for that, and the congressional and ratification debates from the Fourteenth Amendment do not reveal a clear answer. Trump could rescind President Barack Obama’s executive amnesty, but that executive order did not grant anyone citizenship, and it would be a steep uphill climb in court to try to take someone’s citizenship away. And if the children already here are American citizens, then they could never be deported. Some other parts of Trump’s plan face even longer odds. The Due Process Clause of the Fifth Amendment to the Bill of Rights applies to all “persons,” not just citizens. And the courts have always held that due process requires any foreigner to be given a “meaningful hearing” in court before being deported. That would certainly impact the pace of deportation. Donald Trump’s position on immigration has changed drastically from his previous positions, just like his past support for socialized healthcare and abortion. He has not yet explained why he changed his position on immigration, and some voters do not trust that he sincerely holds to his current campaign positions. But none of that changes the legality of his immigration proposal. While parts of it may face legal challenges, denying citizenship to the children of illegal aliens is fully consistent with the Constitution’s Fourteenth Amendment. Ken Klukowski is legal editor of Breitbart News and a practicing constitutional attorney, and explains birthright citizenship in Chapter 12 of Resurgent: How Constitutional Conservatism Can Save America. Follow him on Twitter @kenklukowski.
Parts of Donald Trump’s immigration plan may raise serious constitutional questions, but the part that launched a media firestorm—ending birthright citizenship for the children of illegal aliens—does not.
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#16. To: nolu chan (#10)
There's a political world and a juridical world. They overlap, of course, and in times of political strife they overlap a great deal, to the point where the former can overwhelm the latter. Judges are either elected politicians or appointed politicians. They are politicians nevertheless. A Supreme Court Justice, having lifetime tenure, is considerably insulated from the political process - and therefore better able to execute his personal political will without consequences - but they're never COMPLETELY free of the political process, for two reasons: (1) they can be impeached, and (2) the size of the court and its range of jurisdiction can be limited or extended. And of course there is always the third limitation: they don't have an army or a police force of their own. So if the other two political branches do not check each other, the Supreme Court can be ignored. During the Civil War, the Supreme Court issued dozens, maybe hundreds, of habeas corpus writs. Lincoln ignored them, and the only authority that could check Lincoln was Congress - and it was dominated by his party and eager to fight the war. I don't remember Taney's exact words, but I recall a decision he wrote in which the court ordered something or other, and he knew that it would be ignored, so he wrote something bitter words along the lines of 'but I understand that the writ of this court no longer runs in this land'. That's right, Rodge. Your "Dred Scott" decision sought to delineate, by fiat, the rights of slaveowners in such a way as to lock in slavery rights in the territories, rendering the issue off limits to the political process. The Court has spoken! And wrought a civil war as the fruit. Lincoln had the power to ignore that toxic institution and its doddering ignoramuses, and he did. The Supreme Court effectively ceased to exist during the Lincoln Presidency on most matters, and deserved to. The Court has no power to enforce anything, and when the Legislature and Executive are united against it, the best the Justices can hope for is not to be summarily impeached, tried for treason and hanged if that's the good will of the governing powers. (I exaggerate only slightly. During the French Revolution, many judges were guillotined for defiantly continuing to execute "equitable powers", which the National Assembly had stripped from the judiciary in retaliation for its anti-revolutionary decisions. When the judiciary refused to be cowed, judges began to be executed, a fact which swiftly and permanently broke the will of the judiciary to directly defy the legislative power. To this day French judges have no equitable power, and it's still a criminal offense for a judge to cite to another judicial opinion as the basis of his decision. Power is a very serious matter. People shed blood over it. The Supreme Court has managed to entrench for itself a great deal of power, judicial, and quasi-legislative. The court has taken chances with that power in recent decades, notably over civil rights, but the bulk of country was in truth with the degregation power so the court won, and bolstered its power thereby. Given those things, although the Supreme Court are political appointees, and although many are self- proclaimed "conservatives", this is a case in which "conservatism" is likely to be a very juridical matter and not a political one. We know how the Democrat justices will rule on an assault on birthright citizenship: they will say that it is obviously unconstitutional on the very face of the 14th Amendment, given the court's long-established precedents on the meaning of "jurisdiction". But the conservative justices, too, are very likely to conservatively "stare decisis et non quieta movetur" - to stand by what has been decided and not disturb settled precedent. The Amendment says soil and jurisdiction, effectively. Soil is a matter of geography, and jurisdiction has been beaten to death by the courts. That is not an area where there is a question. Maybe it meant thus and so in 1700 in Switzerland, or in 1800 in Washington, or 1873 in Georgia, but in 2015, it means "subject to the trial court". A diplomat with immunity isn't subject to the nation's courts unless his home country waives immunity. But everybody else, pretty much, is. The old, odd case of Indians, arising from the particular circumstances of their being in the country, was always a special case. And it was resolved 100 years ago. Scalia and Thomas, Altio and Roberts may make some sort of a show of going through the legislative history of the 14th Amendment, but in the end every one of them is going to come down on the side of what the Supreme Court has said for a century about jurisdiction. And Kennedy? He's not even going to go through the charade. The 14th Amendment bestows birthright citizenship on anybody born in the USA who isn't a diplomat with immunity. That's the status of "jurisdiction" TODAY, and I don't think there is one justice on the Supreme Court that will go anywhere BUT there. There are plenty of things that can be done to address illegal aliens. And birthright citizenship - if it's a matter of sufficient political power and anxiety in the people, COULD - under the leadership of a politician determined to do it - even become the vehicle to significantly attack and diminish the power and prestige of the Supreme Court. But on the issue itself, the Court will rule that the 14th Amendment means what every judge and lawyer in practice knows it means, and it will do so early. To get rid of birthright citizenship will either require a constitutional amendment, or a joint Congressional and Presidential assault on the very authority of the court that limits the power of judicial review itself, through legislation and through executive defiance without consequences from Congress. Amend, or assault and diminish the court. Those are the options here. Amendment won't make it through the political process. That leaves a coordinated assault on the power of the Supreme Court. I'd like to see that, actually - I think the French are right - but I don't actually see that coming from anywhere, including Trump. When Trump gets power, he will look at his tableau of options and see birthright citizenship as a "hard" point. He'll use it to beat the court and the opposition, and drum up support for other things, but he won't launch a direct assault on the court's authority. He's too much of a traditionalist to do that. Birthright citizenship is guaranteed by the 14th Amendment. The anchor baby law will remain the Supreme Law of the Land. To stop anchor babies will require policing the border, because the Court isn't going to allow the status of those who are born on this side of the line to be changed. You can take that to the bank. The decision will be 9-0.
Tourists subject to our jurisdiction are not CITIZENS. But COULD we pass a law and draft them? Well, sure. We could pass a law to dissect them and eat them. The Germans had laws that turned Jewish tourists into slaves and then soap, so why not turn tourists into soldiers. Give them guns and grenades and heavy weapons and send them out there to protect the interests of the country that dragooned them. Yeah! THAT'LL show 'em! Oh, wait...
The birth of a child is not "shitting something out". But yeah, under the 14th Amendment, a pregnant illegal who makes it into the USA gives birth to an American child, your and my fellow citizen. Regardless of what any of us thinks about that. We have two choices: accept that's the Constitution and look at OTHER ways of addressing the illegal flow and anchor baby problem (like: building the wall and bringing home the US military from abroad to man it, and severely punishing US employers that hire illegals. Or we can amend the Constitution. Those are the choices. The second isn't going to happen, so we're left with the first.
The opinions of the 1860s are not the law. The law is what it says, and what the Supreme Court has said it means. Jurisidiction is a well-worn phrase. In 2015, it means subject to the US courts. All illegals are. Therefore, their babies born here are citizens, per the 14th Amendment. THe Supreme Court will decide that 9-0, You have to pick your battlefield, and this one will be Azincourt for those who want to control the Border. This fight cannot be won. Others can. Focus on those.
I do say so, and what I say in this case is the Supreme Law of the Land. All nine justices of the Supreme Court agree with me on this, as will be discovered quickly should Trump win and actually start to move in that direction…and not quickly figure out that this is not the battlefield on which to fight, because there's nothing to negotiate and no way to win. Choose better ground. This is a frontal assault into the guns. This will be Azincourt, and the Supreme Court will be the archers. Different tactics can win the fight, but a headlong assault on the 14th Amendment would be slapped down by 98.5% of the judges in America. And the 1.5% that would decide the other way would probably be removed from the bench within a year.
It could have just said All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. But they added "and". There was no need to do that if they were seeking the meaning that you believe. So it HAS to mean something else. No other reason to put it there.
I personally don't accept that... IT is no peer of mine, and I feel that our constitution needs amending if the USC is as warped as you on this issue.
I'm the infidel... Allah warned you about. كافر المسلح
It does. It meant, in 1868, that people within US territory who were "over the horizon", past the frontier… Indians out there on the "American" plains that were American in name but not really; Canadians wandering out there in the woods that accidentally crossed unmarked lines and set up a cabin but who thought it was Canada, and of course foreign diplomats and staff of every stripe with diplomatic immunity, and passengers on foreign ships passing through American waters - they were not subject to US jurisdiction as a matter of reality. And therefore not citizens. But the world has changed. There are no more wild Indian tribes. When those words were written, neither the Sioux nor the Apache nor the Nez Perce had fought yet. They were real nations, spread over real large areas, with real fight in them, but definitely NOT subject to US jurisdiction. We'd be in an Indian War with one bunch of them and General Custer, Civil War hero, would be dead with his whole unit a little under e decade LATER. The Idnians would still be at war a half-century later. America was not settled ground then. THere were hostile nations within. REAL nations, with real governments, and weapons, and not controllable. it would take three wars to bring them in check. They were on territory the US claimed, but that the US did not rule, and would not rule for decades more - and had to fight to secure - and took some hard knocks to get. That's primarily what it meant. But also people in transit. Today we fly around. Then, everybody sailed around. It took time. Ships passed in and out of ports a lot, for supplies, to rest, etc. Foreigners who were foreigners and intended to BE foreigners got on and off, or stayed off at anchor. Today, we have record-keeping and the like to track these things. There was no such thing as a driver's license in 1868. They weren't immune to US laws if they came ashore, exactly, but if they were on their ships tied up, it was admiralty, and admiralty says that the law of the flag controls the ship. So in 1868 a Spanish ship tied up in New Orleans could be inspected by Customs Officials for tariffs, if offloading, but it's passengers were not subject to US law unless they got off the ship and went wandering out and committed a crime…and even then it might depend. If it were a petty crime, by getting back aboard the ship, the citizen had passed within the jurisdiction of Spain, and local officials could not barge aboard the ship. They might prevent it from leaving, and there by a diplomatic dance. The point is, that there were a lot of people who spent considerable time in a transit status, aboard a foreign flag ship in the US, and those persons were not generally subject to US jurisdiction - insofar as US officials could not simply board the ships and take off passengers and the like. The law was complicated. Diplomats have always been immune. The distinction had meaning in 1868. In the age of airports, ID cards, tracking and judicial and executive overreach, where people routinely carry "papers", etc., the reach of jurisdiction is much broader. There are no more wild Indians. Today, the jurisdiction limitation means that foreign diplomats' kids are not American.
I'm not "warped". I am telling you the way that it is. I do not have the power to change things. I'm telling you that the Sun will rise in the East. I'm telling you that water flows downhill. I'm telling you that Hillary Clinton will lie tomorrow and the day after. And I'm telling you that, given the meaning of "jurisdiction" in our long-settled jurisprudence, that the Supreme Court will strike down attacks on birth right citizen and force an amendment, and no amendment like that will get 2/3rds of both houses and 3/4s of the states. Won't happen. Pick another battlefield. You're going to lose on this one. Don't shoot the messenger.
I am afraid established precedent precedes your question by about 160 years. Good ol' Honest Abe (the guy that chopped down a cheery tree and could not tell a lie) pulled Irish "visitors" right off the boats in New York harbor and elsewhere and immediately enlisted them in the US Army to defend the Glory of the Union by murdering the Southern enemy.
He won.
Naw, he is rotting in HELL; remember Good ol' Honest Abe murdered over 500,000 Americans for a few bank interests that were centralized in the North while the South was completely void of any real capability.
I agree with that statement although it is my view that the 14th amendment covers to children of LEGAL immigrants and NOT the children of illegals. Their children were put under the anchor baby umbrella by the 1965 immigration act. But SCOTUS would most likely declare a repeal of that provision unconstitutional after they examine the "penumbras" and "emanations" of the Constitution. Quis custodiet ipsos custodes?
It will NEVER happen with a weak SCOTUS; these nine dressed upped black robed klouwns go along with any demanding President that goes against cultural and social instinct to include allowing the construct of "marriage" to be mandated by federal law, where none exists at all. These were states rights issues. And SCOTUS shall use 0bama's "laws" as a precedent for "their" further decisions, assuming they permit a court review.
I agree with you. IF there were a "god of the Constitution" lurking out there, with an actual opinion of what the words "MEAN", in a transcendental, absolute sense, the divine INTENT of those words, so to speak, then I'm sure that birth right citizenship would not "mean" the children of illegals. But the Constitution is just a set of loose rules for political cricket, they're not Scripture and there's no constitutional god out there holding the "true" meaning. It means whatever the Supreme Court says it means, and it means whatever the various players in the game actually do and claim (and believe) is "correct". The Supreme Court has a very long and very important set of jurisdictional rules. The whole concept of "jurisdiction" grew and grew through layer after layer of court decisions over the centuries. Why? Because if the US has "jurisdiction", that means that the Supreme Court can hear the case, which means they have power over the outcome. The Supreme Cpurt has been an eager beaver over the years at finding jurisdiction. That is why going to the Court with a political argument, that it should dramatically reduce the meaning of the word "jurisdiction" so as to allow the politicians to "get at" the anchor babies without having to amend the Constitution is simply a no-fly zone. Congress and the President will be asking the Supreme Court to carve away at the basis of its own power, and to claim that it does not itself have the power to judge cases that concern illegal aliens. For that is precisely what "No US jurisdiction" would MEAN under two centuries of Supreme Court precedent. It would mean that the Supremes were powerless over a case. The Supremes will NEVER rule that they are powerless over average people of whatever nationality within the United States. Never. The whole argument turns on jurisdiction, but for the Supreme Court to rule that there is no jurisdiction would mean that the Supreme Court would have no power over tens of millions of people in America. Once that is understood, is is clear why the Supreme Court will rule 9-0 that the US DOES have jurisdiction over those people, and that therefore their babies are citizens. To ask the Supreme Court to rule "No jurisdiction" would be akin to asking the Congress to relinquish its ability to make laws regarding some important subject matter. It ain't happening, no matter HOW much the people want it. Fact is, if the people REALLY want it that badly, they'll have the supermajorities necessary to amend the Constitution. But they don't. And they won't. That is why birth right citizenship is a terrible pace to pitch a battle. It's doomed before the first shot is fired. The place to fight this is at the border, with walls, surveillance and redeployment of military forces from abroad to the US.
It's a terrible place to pitch a battle, but it's a good place to make a feint. Trump has chosen the ground well, because it fires people up.
"1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." The Congressional Globe is my friend. I had already quoted what Trumbull actually said at my #9, and also explained that it was Senator Howard who introduced the 14th Amendment. My #9 gives extensive quotes regarding what "subject to the jurisdiction" means. A child born in the United States without diplomatic immunity is subject to the jurisdiction of the United States. The clear context of Trumbull was a child born into an Indian nation tribe was not subject to the jurisdiction of the United States because he was under the jurisdiction of the tribal laws. A child born of two illegal aliens in the U.S. is under the complete jurisdiction of U.S. law, U.S. law enforcement, and U.S. courts. In addition, SCOTUS decisions have repeatedly held that children born in the United States without immunity are citizens at birth. It was a function of English common law before July 4, 1776 and said common law was adopted by all thirteen colonies upon independence and carried into statehood. Legislation cannot conflict with SCOTUS holdings interpreting the Constitution. http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 At page 2893, column 1, Senator Lyman Trumbull speaking:
I think you refer to Ex parte Merryman, by Taney sitting as Chief Justice of the U.S. Supreme Court at Chambers. It is not an opinion of the U.S. Supreme Court, but an in chambers opinion of a single justice. That is what Taney wrote on the hand written opinion, and what he anounced from the bench just before he read it. That was in the courthouse for the Circuit Court in Maryland. Some argue it was a Circuit Court opinion as it was so reported by a court reporter. Ex parte Merryman, 17 Fed. Cas. 144, Case 9487, pp 146-155 (1861). The constitution provides, as I have before said, that " no person shall be deprived of life, liberty or property, without due process of law." It declares that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the per. sons or things to be seized." It provides that the party accused shall be entitled to a speedy trial in a court of justice. These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial ofiicers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him ; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States, It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
Notice that about half the able-bodied men in the state of Wisconsin were foreigners who had not been naturalized. Stanton’s reply confirmed they were eligible for the draft. OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports) Page 369 UNION AUTHORITIES. Honorable E. M. STANTON: About one-half of the able-bodied men between eighteen and forty- five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted? They should be liable. Great injustice will be done to our State if they are exempt, and our quota would be too large if they are exempt. Cannot those who are not willing to subject themselves to draft be ordered to leave the country? Answer this immediately. I must have the time for volunteering extended, as asked for by my dispatches of Saturday and yesterday. Please answer them. E. SALOMON, Governor of Wisconsin. - - - - - Washington City, D. C., August 12, 1862. Governor SALOMON, Madison, Wis.: Foreigners who have voted at our elections are regarded as having exercised a franchise that subjects them to military duty. Declaration of intention to become naturalized is not of itself sufficient to prevent their taking advantage of their alienage, but a man who votes must bear arms. Your telegram respecting extension of time for volunteering cannot be answered until to- morrow, some information from different States being required. EDWIN M. STANTON, Secretary of War. - - - - -
There are plenty of things that can be done to address illegal aliens. And birthright citizenship - if it's a matter of sufficient political power and anxiety in the people, COULD - under the leadership of a politician determined to do it - even become the vehicle to significantly attack and diminish the power and prestige of the Supreme Court. But on the issue itself, the Court will rule that the 14th Amendment means what every judge and lawyer in practice knows it means, and it will do so early. To get rid of birthright citizenship will either require a constitutional amendment, or a joint Congressional and Presidential assault on the very authority of the court that limits the power of judicial review itself, through legislation and through executive defiance without consequences from Congress. I absolutely concur. A child born to two illegal aliens awaiting deportation in a detention center is a natural born citizen. The child is born in the United States and does not enjoy immunity from U.S. jurisdiction. What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice. The 14th Amdt. establishes citizenship for the child. It does not grant anchor status for the parents.
We can and have drafted aliens, see #34. Tourists are under U.S. jurisdiction while in the U.S. Drafting of alien tourists would be a major violation of international law. Reciprocity would indicate that if we drafted tourists, others could do the same to U.S. citizen tourists.
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside. That would accomplish the meaning you say. No. That would make the child of a foreign diplomat, born in the U.S., a natural born U.S. citizen. Recognized diplomats have immunity and are not subject to our laws while in the U.S. Their child also has immunity.
I believe this is backwards. The 1965 Act put the alien parents under the anchor baby umbrella. It is the baby who is the qualifying U.S. immediate relative citizen. The 1965 Act could be repealed or amended by another piece of legislation.
From the 'Trump, Deny Citizenship --' thread: --- Because once born in the USA, the baby is a citizen, and cannot be deported. -- And because it's parents could be deported, it would be a ward of the court until its maturity, subject to the courts orders, which could allow the parents to take the child with them when they are deported. -- Or, the child could remain in the USA, raised by foster parents.. Problem solved?
But the U.S. Constitution trumps international law. You're in the Army now.
Correct. Trump said the government was not going to break up families. Illegal aliens will be allowed to take their children with them if they wish. I might add that he said nothing about revoking anyone's existing birthright citizenship.
That would be the logical course of action... i'm sure the founding fathers never intended to keep the evidence from two illegal acts. I'm the infidel... Allah warned you about. كافر المسلح
I think it's possible to make a strong case that the children born here of illegal aliens are not U.S. citizens at birth. Congress needs only to define, "and subject to the jurisdiction thereof" as "owing allegiance to no other country". This, by the way, is not breaking any new ground. That said, I doubt they will be able make that definition retroactive.
What if foreign tourists have a baby here? Is their child a U.S. citizen? Can we draft their child into the military?
The U.S. Supreme Court has never ruled on the citizenship status of children born in the U.S. whose parent(s) are here illegally. And THAT is the subject we're discussing, not diplomats, not Indians. Illegals.
The law is what it means. You can't change the definition of some word willy- nilly to mean something totally different. When the 14th amendment was written and passed, it meant owing allegiance to no other country.
I doubt it as well because of special interests and platform ideologies. Common sense however dictates that two illegals shitbags couldn't produce a legal spawn... and why would this country think it's the wisest move to keep the child and separate it from the shitbag parents? Deport them all. I'm the infidel... Allah warned you about. كافر المسلح
yes and that has been the problem since they decided they have judicial review in Madison v Marbury . Since then it's been a looking glass world. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.” Quis custodiet ipsos custodes?
Why that was allowed to happen, and continues to happen, I don't know. "and why would this country think it's the wisest move to keep the child and separate it from the shitbag parents?" The child is a legal U.S. citizen. We can't just kick him out of the country. We can only hope that if he's young enough, the parents will take him with.
check this out : Quis custodiet ipsos custodes?
These people have got to laughing their asses off at the stupid Americans. No birthright citizenship for tourists or illegals. And add Green Card holders, those here on work visas, student visas, or any other visas. Children of U.S. citizens only.
When the 14th amendment was written and passed, it meant owing allegiance to no other country. That's right, the law is what it means. There are 2 parts of the 14th Amendment: soil, and jurisdiction. Soil is obvious. Now, you might think that "jurisdiction" means whatever it meant in 1868, but it doesn't. It means what it means to the courts today. "Jurisdiction" jurisprudence has developed over the past two centuries to mean, today, very clearly, the power of the court to hear the subject matter of the case, and to enforce its judgments upon the parties. That's what "jurisdiction" means in every court in America that would rule on the 14th Amendment. Concepts of jurisdiction have changed since 1868, and they affect everything. No court in America is going to say that it doesn't have jurisdiction over illegal aliens, because if that were so, it would mean that they could not be tried, at all, for anything, before American courts. If illegal aliens raped, murdered and stole their way in a swathe across seven states, and then were captured, the lack of jurisdiction would mean that they could not be tried for anything - no court had the power to judge them. They could merely be deported. That's not the reality: courts have jurisdiction and do routinely imprison and punish illegals, just like everybody else. They can because they have jurisdiction. To ask the courts to say that the illegals are not subject to US jurisdiction, and yet could be tried in courts of the US, would be asking the Justices and judges to redefine the word "jurisdiction". Now, we've just redefined the word "marriage" in America, so I suppose we can redefine "jurisdiction". But the courts would have to do that, and they are not going to. Jurisdiction is the source of their power. They're not going to limit it. The only way to change the 14th Amendment is through a constitutional amendment. The illegal immigration battle has to be fought on a different battlefield. There is no victory on this one. And be careful what you ask for, because if "jurisdiction" means that they can try you without authority, then "the right to keep and bear arms" means that you can't have guns, and up is down, and evil is good.
They decided, and Jefferson and the Congress did not overrule them. It takes three to dance that dance. The Supreme Court can rule however, but if the President ignores the decision, and the Congress impeaches the justices for making it, on the ground that they have abused their authority, then it isn't there. If you don't want judges exercising equitable power, you have to make it illegal for them to do so and then punish them if they do. Most people would fall well shy of THAT. Instead, most people want what they want on any given issue, but they want the Supreme Court to be a bulwark protecting them on the rest of the issues where they AGREE with the policy or the court. Desegregation, after all, was driven by Supreme Court decisions.
In the context of the 14th amendment, "subject to the jurisdiction thereof" means "owing allegiance to no other country". Always had. Always will. Now if you want to take the word "jurisdiction" out of context and define it as the power of the court to hear the subject matter of the case and to enforce its judgments upon the parties, fine. I agree with that definition. But, in context, it means something different.
Now if you want to take the word "jurisdiction" out of context and define it as the power of the court to hear the subject matter of the case and to enforce its judgments upon the parties, fine. I agree with that definition. But, in context, it means something different. Says you. But all 9 Justices of the Supreme Court, and all of the Circuit Court judges in the land, and 98.5% of the Federal court justices, and the lion's share of licensed lawyers will all say the jurisdiction in the 14th Amendment means what jurisdiction means everywhere else under the Constitution. It's not a political question. It's not even a question, really. Jurisdiction is a defined word in the legal profession. It means something specific. What that is has been defined by the Supreme Court over two centuries of jurisprudence. Everybody who went through law school has spent a month on the subject of jurisdiction, and had to very painfully grind through the process by which it got to where it is. This word is not a football. Sure, it would make things very easy for a certain political cause if the word jurisdiction, for the purposes of the 14th Amendment, were fixed to a specific moment, indeed a specific sentence in legislative history. But the truth is that that is not how law works, it's not how any court works. The legal profession doesn't accept that argument. There are always some lawyer who will take a fee to argue the point, and argue they may. And they may even argue it before some politicized or crazed or senile judge somewhere who will agree with them. But no appellate court in this land will accept that limitation on the word that you believe. And neither will the Supreme Court. Take this case before the Supremes, and it goes down 9-0. Choose to fight on this battlefield with this weapon, and you're charging into the arrows at Azincourt, charging into the rifles at Gettysburg, charging into the guns at Balaclava, charging into the panzers with horses, and flying out in your Libyan fighter against the F-14s of the 6th Fleet. This battle, on this ground, cannot be won. It's not a debatable point. Saying it's debatable won't make it debatable. It's like arguing that Gaelic is the official language of the USA. No, it isn't. And it won't be. Jurisdiction, for the purposes of the 14th amendment, does not mean what it meant in the legislative history of 1868. It means the same thing that it means in all of the rest of American constitutional jurisprudence, nothing else. There is not an appellate court in America that will say anything different. The cavalry can charge into the arrows, guns and panzers all they like, but the outcome is always the same. If you want to defeat longbowmen, cannons and tanks with cavalry, you had better take them in flank (or, with tanks, get off the high horses and go on foot). The frontal assault will always fail. Jurisdiction means the authority of the court to hear the subject matter of the case and to enforce its judgment against the parties of the case. That's all that it means now in American law. 1868 is gone with the wind, and there is no special definition of jurisdiction for the 14th Amendment. Original intent is a theory. It's not the law. It's not going to ever be the law either, when it comes to a fundamental concept like jurisdiction. Even Justices Thomas and Scalia will tell you that.
No they won't. They're both Originalists who believe the Constitution's meaning is fixed as of the time of enactment.
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#17. To: misterwhite (#14)
#18. To: GrandIsland (#15)
#19. To: misterwhite (#13)
#20. To: cranky (#11)
#21. To: nolu chan (#10)
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
#22. To: Vicomte13 (#18)
#23. To: A K A Stone (#21)
#24. To: GrandIsland (#22)
#25. To: Vicomte13, nolu chan (#17)
so why not turn tourists into soldiers.
#26. To: buckeroo (#25)
#27. To: Vicomte13 (#26)
He won.
#28. To: Vicomte13, buckeroo, redleghunter (#26)
Supreme Court will strike down attacks on birth right citizen .
#29. To: tomder55 (#28)
But SCOTUS would most likely declare a repeal of that provision unconstitutional after they examine the "penumbras" and "emanations" of the Constitution.
#30. To: tomder55 (#28)
#31. To: All (#30)
#32. To: misterwhite (#13)
Wiki is your friend:
The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United Slates? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is, what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.
#33. To: Vicomte13 (#16)
I don't remember Taney's exact words, but I recall a decision he wrote in which the court ordered something or other, and he knew that it would be ignored, so he wrote something bitter words along the lines of 'but I understand that the writ of this court no longer runs in this land'.
Yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the district attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the district of Maryland ; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
#34. To: buckeroo, Vicomte13 (#25)
MADISON, WIS., August 12, 1862.
WAR DEPARTMENT,
#35. To: Vicomte13 (#16)
The 14th Amendment bestows birthright citizenship on anybody born in the USA who isn't a diplomat with immunity. That's the status of "jurisdiction" TODAY, and I don't think there is one justice on the Supreme Court that will go anywhere BUT there.
#36. To: misterwhite (#14)
Can we draft tourists into our military? Hey, they're subject to our jurisdiction while they're here, right?
#37. To: A K A Stone (#21)
It could have just said
#38. To: tomder55, Vicomte13, buckeroo, redleghunter (#28)
Their children were put under the anchor baby umbrella by the 1965 immigration act.
#39. To: nolu chan (#35)
If the act of entry is illegal and criminal, why doesn't the act de-legitimize and nullify the entire "transaction"? ---- Liberator
I absolutely concur. A child born to two illegal aliens awaiting deportation in a detention center is a natural born citizen. The child is born in the United States and does not enjoy immunity from U.S. jurisdiction.
What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice.
The 14th Amdt. establishes citizenship for the child. It does not grant anchor status for the parents. ---- nolu chan
#40. To: nolu chan (#36)
"Tourists are under U.S. jurisdiction while in the U.S. Drafting of alien tourists would be a major violation of international law."
You're not behind a plow.
You'll never get rich
By diggin’ a ditch.
You're in the Army now.
#41. To: nolu chan (#35)
"What could be done, and what I understand Trump to be alluding to with a nuanced statement, is that the parents could be deported. The U.S. citizen child could not be deported, but they could take the child with them, keeping the family together. Or not. Their choice."
#42. To: misterwhite (#41)
Correct. Trump said the government was not going to break up families. Illegal aliens will be allowed to take their children
#43. To: GrandIsland (#42)
"i'm sure the founding fathers never intended to keep the evidence from two illegal acts."
#44. To: nolu chan (#37)
#45. To: nolu chan (#32)
"In addition, SCOTUS decisions have repeatedly held that children born in the United States without immunity are citizens at birth."
#46. To: Vicomte13 (#19)
"The law is what it says"
#47. To: misterwhite (#43)
That said, I doubt they will be able make that definition retroactive.
#48. To: Vicomte13 (#30)
It means whatever the Supreme Court says it means
#49. To: GrandIsland (#47)
"Common sense however dictates that two illegals shitbags couldn't produce a legal spawn"
#50. To: misterwhite (#44)
What if foreign tourists have a baby here? Is their child a U.S. citizen? Can we draft their child into the military?
#51. To: tomder55 (#50)
"Even though the mothers paid birth tourism operators tens of thousands of dollars in fees, they paid local hospitals nothing or a reduced sum for uninsured, low-income patients, according to the affidavits"
#52. To: misterwhite (#46)
The law is what it means. You can't change the definition of some word willy- nilly to mean something totally different.
#53. To: tomder55 (#48)
yes and that has been the problem since they decided they have judicial review in Madison v Marbury . Since then it's been a looking glass world.
#54. To: Vicomte13 (#52)
"Now, you might think that "jurisdiction" means whatever it meant in 1868, but it doesn't. It means what it means to the courts today."
#55. To: misterwhite (#54)
In the context of the 14th amendment, "subject to the jurisdiction thereof" means "owing allegiance to no other country". Always had. Always will.
#56. To: Vicomte13 (#55)
"Even Justices Thomas and Scalia will tell you that."
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