The 14th Amendment Does Not Mandate Birthright Citizenship

[Emjay]

It was about removing vestiges of slavery, not regulating aliens.

Shortly after the Constitution went into effect, the first Congress enacted a naturalization law. Lawmakers superseded this statute just five years later. Both provisions derived from the Constitution’s grant to the legislature (in Article I, Section 8) of the power “to establish an uniform Rule of Naturalization.” That grant, along with these naturalization statutes of 1790 and 1795, edifies us about the Framers’ conception of citizenship, and of the status of aliens and their children.
Status questions about the children of aliens have moved to the fore in recent months. Central Americans, enticed by laws that perversely incentivize illegal immigration, have sought entry en masse at our southern border.

 This week, with an oncoming “caravan” of migrants galvanizing President Trump’s base on the eve of the midterm elections, these questions have stoked a heated debate — with all the shopworn smears of racism and bad faith that are now staples of American public discourse.

In campaign mode, the president floated the idea of issuing an executive order that would purport to deny “birthright citizenship,” i.e., to end the policy of granting American citizenship to children born in the United States to alien parents who are not legally present here. I highlight “purport” and “policy” because the president’s opponents counter that these newborn children of illegal aliens are granted citizenship by the Constitution, specifically, by the 14th Amendment. Therefore, the argument goes, this grant of citizenship is not a mere policy but a command of the highest law of the land; it may not be reversed by an executive order, or even by a law of Congress, the branch empowered to set the terms of citizenship.



https://www.nationalreview.com/2018/11/birthright-citizenship-14th-amendment-does-not-mandate/

[Emjay]

Long, detailed article about the why's and wherefore's of the 14th Amendment.

This may end up in the Supreme Court.  Thank God for the addition of Kavanaugh.

[mystery-ak]

   The 14th Amendment Does Not Mandate Birthright Citizenship
By Andrew C. McCarthy

November 3, 2018 3:30 AM

It was about removing vestiges of slavery, not regulating aliens.


S hortly after the Constitution went into effect, the first Congress enacted a naturalization law. Lawmakers superseded this statute just five years later. Both provisions derived from the Constitution’s grant to the legislature (in Article I, Section 8) of the power “to establish an uniform Rule of Naturalization.” That grant, along with these naturalization statutes of 1790 and 1795, edifies us about the Framers’ conception of citizenship, and of the status of aliens and their children.

Status questions about the children of aliens have moved to the fore in recent months. Central Americans, enticed by laws that perversely incentivize illegal immigration, have sought entry en masse at our southern border. This week, with an oncoming “caravan” of migrants galvanizing President Trump’s base on the eve of the midterm elections, these questions have stoked a heated debate — with all the shopworn smears of racism and bad faith that are now staples of American public discourse.

In campaign mode, the president floated the idea of issuing an executive order that would purport to deny “birthright citizenship,” i.e., to end the policy of granting American citizenship to children born in the United States to alien parents who are not legally present here. I highlight “purport” and “policy” because the president’s opponents counter that these newborn children of illegal aliens are granted citizenship by the Constitution, specifically, by the 14th Amendment. Therefore, the argument goes, this grant of citizenship is not a mere policy but a command of the highest law of the land; it may not be reversed by an executive order, or even by a law of Congress, the branch empowered to set the terms of citizenship.

That is a lot of weight to put on an amendment that had nothing to do with regulating aliens — an amendment ratified in 1868, a time when there was no federal-law concept of illegal aliens.

more
https://www.nationalreview.com/2018/11/birthright-citizenship-14th-amendment-does-not-mandate/

[Dexter]

This will definitely be interesting. The left is going to lose its shit if Donald pulls this off.

[Oceander]

Yes, it does.  And no, it wasn’t just about eradicating slavery.  It was about providing a definitive, universal definition of who was, and who was not, a citizen.

[Oceander]

Long, detailed article about the why's and wherefore's of the 14th Amendment.

This may end up in the Supreme Court.  Thank God for the addition of Kavanaugh.

Trusting that Kavanaugh has both sufficient textualism and sufficient originalism in his judicial philosophy, Trump will be sorely disappointed if this gets to the Supreme Court. 

[IsailedawayfromFR]

Yes, it does.  And no, it wasn’t just about eradicating slavery.  It was about providing a definitive, universal definition of who was, and who was not, a citizen.

you have an opinion, although clearly  one not shared by most Americans.

Just cause you say it with definition makes no difference, it is just your opinion.

[Oceander]

you have an opinion, although clearly  one not shared by most Americans.

Just cause you say it with definition makes no difference, it is just your opinion.

It’s not just my opinion. It is also the most reasonable reading of the language of the amendment itself, and the stated purpose of the senators who proposed the amendment and adopted it for ratification by the states. 

[RoosGirl]

It’s not just my opinion. It is also the most reasonable reading of the language of the amendment itself, and the stated purpose of the senators who proposed the amendment and adopted it for ratification by the states.

If that is the case then the words "and subject to the jurisdiction thereof" would have been completely unnecessary to the Amendment. 

[Dexter]

It’s not just my opinion. It is also the most reasonable reading of the language of the amendment itself, and the stated purpose of the senators who proposed the amendment and adopted it for ratification by the states.

You don't think there's even a snowball's chance in Hell that Trump could pull this off?

[skeeter]

It’s not just my opinion. It is also the most reasonable reading of the language of the amendment itself, and the stated purpose of the senators who proposed the amendment and adopted it for ratification by the states.

I'm no legal scholar but in order to accept what you say we'd have to believe those senators would be OK with "pregnancy holidays". That does not pass the giggle test.

[Fishrrman]

I've been posting about this subject in this forum for some time now.

Even if what Oceander said above about the 14th is a proper interpretation (and his isn't), all it does is prove something ELSE I've been saying in this forum for a while -- that the 14th Amendment is the worst of any amendment passed after #10.

It's time to repeal and replace it with something more up-to-date that will serve the country better.

Or at least pass another amendment that corrects the 14th's oversights.

That amendment should define:
What constitutes a "citizen of the United States" (should be a child born on American soil to American citizens, either natural-born or naturalized)
and
What constitutes a "natural-born" citizen (should be only a child born to two parents who are citizens of the United States).

But I don't believe anything above can or will happen until the Supreme Court is forced to issue a definitive and comprehensive opinion on whether the 14th, as it stands now, establishes "birthright citizenship", or not.

That's why we must "create a case" that the left will take to court, and then "fight it upwards" to obtain that ruling.

Once the Supreme Court decides, then WE can "decide" what to do from that point...

[Oceander]

If that is the case then the words "and subject to the jurisdiction thereof" would have been completely unnecessary to the Amendment. 

Absolutely not.  The question is: what does that phrase do for the amendment; how does it qualify the grant of citizenship.  And the answer is: it does nothing except with respect to certain limited classes of individuals who have immunity to a significant portion of US law based on a relationship those individuals have to another sovereign. 

[Oceander]

I'm no legal scholar but in order to accept what you say we'd have to believe those senators would be OK with "pregnancy holidays". That does not pass the giggle test.

You are, of course, entitled to believe what you wish.  However, wishing doesn’t make it so. What matters first and foremost is the statutory language itself.  If that is clear, then the language governs no matter what one of more senators might have thought it did.  And if, for the sake of argument, there is some ambiguity in the language, one looks to the legislative history.  One does not, ever, look at contemporary speculation about what the senators might have subjectively thought or believed back in the late 1800s. 

In this case, however, even if one warrants that this could be a strange thing for Congress to have intended, one is rescued by the legislative history, because during the Congressional debates on the proposed amendment, one of the senators from California clearly contemplated just that sort of scenario when he thanked the senator from Pennsylvania (who had just inveighed against Mongols in California and Gypsies in Pennsylvania) for being so concerned about the Chinese overrunning California, but that there was nobody by to worry about on that score because the Chinese usually returned to China.   Thus, the Congress clearly understood that the amendment, as proposed, would grant citizenship to the children of people who were present in the US for only a short period of time, and who would most likely return to their country of birth, provided those children were themselves born in the US. 

So, in point of fact, Congress did contemplate what you deride as pregnancy holidays, and they enacted the language that they knew would allow it. 

[Oceander]

You don't think there's even a snowball's chance in Hell that Trump could pull this off?

No.  In a word.

[RoosGirl]

Absolutely not.  The question is: what does that phrase do for the amendment; how does it qualify the grant of citizenship.  And the answer is: it does nothing except with respect to certain limited classes of individuals who have immunity to a significant portion of US law based on a relationship those individuals have to another sovereign.

Nonsense, any sane person (read any non-lawyer) knows it covers anyone who is a citizen of a different country; they are subject to the jurisdiction of whatever country they are citizens of, and therefore their kids would be also.

[Oceander]

Nonsense, any sane person (read any non-lawyer) knows it covers anyone who is a citizen of a different country; they are subject to the jurisdiction of whatever country they are citizens of, and therefore their kids would be also.

Ahh. So you mean that if an ordinary citizen of Germany comes into the territorial US, he can steal and kill with impunity because he is not “subject to the jurisdiction” of the US since he is a citizen of Germany and thus subject to the jurisdiction of Germany?

How wonderful.  My German friends will be quite interested to hear this. 

[RoosGirl]

Ahh. So you mean that if an ordinary citizen of Germany comes into the territorial US, he can steal and kill with impunity because he is not “subject to the jurisdiction” of the US since he is a citizen of Germany and thus subject to the jurisdiction of Germany?

How wonderful.  My German friends will be quite interested to hear this.

I didn't know that murder was covered by the 14th amendment.  Seems to me just a definition of who is or isn't a citizen.  But you're the lawyer, I guess you know different.

[Oceander]

I didn't know that murder was covered by the 14th amendment.  Seems to me just a definition of who is or isn't a citizen.  But you're the lawyer, I guess you know different.

If one is not subject to the the jurisdiction of a particular sovereign, then that necesssrily means that the sovereign cannot impose its laws on one’s self; in short, it means that one has immunity from that sovereign’s law. 

Therefore, if being a citizen of another country means that you are not subject to the jurisdiction of the US, then that necessarily means that the US cannot enforce its laws against you, including any laws it might have on murder. 

That is a necessary inference from the proposition you stated.  Because, if - as is more likely - my bloodthirsty German friends are to be disappointed, and US laws against murder enforced against them if they murder someone while they’re here in the US, then they are necessarily “subject to the jurisdiction” of the US. 

But that, of course, would mean that their children, if born here, would be US citizens. 

Since you have assured us that this is neither the intention nor the effect of the 14th Amendment though, it means that the conclusion that they are subject to US law is wrong, which means that the premise: that they can be prosecuted for violating US law, is wrong, which means that they can in fact get away with murder in the US if your proposition is correct.  It is a simple syllogism, after all.

[RoosGirl]

If one is not subject to the the jurisdiction of a particular sovereign, then that necesssrily means that the sovereign cannot impose its laws on one’s self; in short, it means that one has immunity from that sovereign’s law. 

Therefore, if being a citizen of another country means that you are not subject to the jurisdiction of the US, then that necessarily means that the US cannot enforce its laws against you, including any laws it might have on murder. 

That is a necessary inference from the proposition you stated.  Because, if - as is more likely - my bloodthirsty German friends are to be disappointed, and US laws against murder enforced against them if they murder someone while they’re here in the US, then they are necessarily “subject to the jurisdiction” of the US. 

But that, of course, would mean that their children, if born here, would be US citizens. 

Since you have assured us that this is neither the intention nor the effect of the 14th Amendment though, it means that the conclusion that they are subject to US law is wrong, which means that the premise: that they can be prosecuted for violating US law, is wrong, which means that they can in fact get away with murder in the US if your proposition is correct.  It is a simple syllogism, after all.

That's the lawyer-speak bullshit that I'm talking about that people are sick of.  The first sentence of the amendment is clearly talking just about how citizenship is defined and who it applies to.  It doesn't say anything about non-citizens not having to follow our laws.  If your interpretation was correct then anyone should also be able to vote in any of our elections because the laws for being eligible to vote don't apply to them.

[Dexter]

That's the lawyer-speak bullshit

What kinds of bullshit do you think will decide this stuff in court?

[RoosGirl]

What kinds of bullshit do you think will decide this stuff in court?

Lawyer-speak bullshit, which is the problem.

[Elderberry]

9 Things to Know About Birthright Citizenship

The Heritage Foundation 10/31/2018 by Amy Swearer and Hans A. von Spakovsky

https://www.heritage.org/immigration/commentary/9-things-know-about-birthright-citizenship

President Donald Trump’s announcement that he’s considering an executive order on birthright citizenship has raised questions and much interest in the 14th Amendment. Here are some the basic things you should know about birthright citizenship.

---
5. Wong Kim Ark stands only for the narrow proposition that the U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing with respect to the U.S.-born children of illegal or non-permanent resident aliens.

6. In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

7. American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

More at link above.

[Cyber Liberty]

 

[RoosGirl]

9 Things to Know About Birthright Citizenship

The Heritage Foundation 10/31/2018 by Amy Swearer and Hans A. von Spakovsky

https://www.heritage.org/immigration/commentary/9-things-know-about-birthright-citizenship

President Donald Trump’s announcement that he’s considering an executive order on birthright citizenship has raised questions and much interest in the 14th Amendment. Here are some the basic things you should know about birthright citizenship.

---
5. Wong Kim Ark stands only for the narrow proposition that the U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing with respect to the U.S.-born children of illegal or non-permanent resident aliens.

6. In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

7. American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

More at link above.

I guess Amy, Hans and I are off to re-education camp.