Immigration

The GOP's Unconstitutional Attack on Birthright Citizenship

Why Donald Trump is wrong about the text and history of the 14th Amendment.

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Credit: Todd Kranin

Attacks on birthright citizenship are back in the news. At last week's GOP presidential debate, Republican frontrunner Donald Trump led the charge in favor of eliminating the practice. "A woman gets pregnant. She's nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don't think so," Trump declared. "I believe that a reading of the 14th Amendment allows you to have an interpretation where [birthright citizenship] is not legal and where it can't be done."

Donald Trump is free to believe whatever nonsense he wants. But that belief cannot change the text and history of the 14th Amendment. And make no mistake, the text and history of the 14th Amendment are clear on this point: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.

Let's start with the text. The Citizenship Clause of the 14th Amendment says, "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." The primary author of those words was Republican Senator Jacob Howard of Michigan. "This amendment I have offered," Howard told the Senate on May 30, 1866, "is simply declarative of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States."

What does it mean to be "subject to the jurisdiction" of the United States? Howard supplied an answer. The Citizenship Clause, he explained on the Senate floor, "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship, "ambassadors" and "foreign ministers." What makes ambassadors and foreign ministers different from other aliens present on U.S. soil? Simple: Ambassadors and foreign ministers have diplomatic immunity and are therefore not "subject to the jurisdiction" of the United States. Instead they remain subject to the jurisdiction of their home governments. By contrast, "every other class" of aliens, including permanent resident aliens, temporary resident aliens, and illegal aliens, is subject to U.S. jurisdiction, which is another way of saying that those aliens must obey U.S. laws or else face punishment in the U.S. legal system. Thus, according to Sen. Howard, the vast majority of U.S.-born children qualify for automatic birthright citizenship. The only exceptions are the U.S.-born children of diplomats, foreign ministers, and, we might add, invading foreign troops, who are subject to the laws of war, not to the laws of the particular nations that they're fighting.

This understanding of the Citizenship Clause is amply supported by the debates surrounding the passage and ratification of the 14th Amendment.

For example, the first senator to rise in opposition to Howard's citizenship proposal was Edgar Cowan of Pennsylvania, a conservative Republican who ultimately voted against the amendment. "Is the child of a Gypsy born in Pennsylvania a citizen?" Cowan fretted. "Is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race?"

Cowan's concerns were promptly addressed by Republican Sen. John Conness of California. "We are entirely ready to accept the provision proposed in this constitutional amendment," Conness responded, "that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law." Even the children of unpopular immigrants, Conness made clear, including the Chinese and the Gypsies, "shall be citizens."

In short, both the supporters and the opponents of the 14th Amendment understood it to secure birthright citizenship to all but an extremely narrow group of U.S.-born children. The two sides only disagreed about whether this broad grant of birthright citizenship was a good idea to begin with. The original meaning of the Citizenship Clause went unchallenged.

Three decades later, the U.S. Supreme Court gave its stamp of approval to this original understanding in United States v. Wong Kim Ark (1898), in which the Court affirmed the U.S. citizenship of a man born to non-citizen Chinese parents in San Francisco. The case arose after the man temporarily left the U.S. in order to visit China and was nearly denied reentry due to the xenophobic Chinese Exclusion Act.

"The Fourteenth Amendment," the Court observed in Wong Kim Ark, "affirms the ancient and fundamental rule of citizenship by birth within the territory, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." That original understanding has held sway in American law ever since, and rightfully so.

Most Republicans today claim to revere the text of the Constitution. If that's truly the case, they will reject Donald Trump's ill-informed and unconstitutional attack on the 14th Amendment.

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373 responses to “The GOP's Unconstitutional Attack on Birthright Citizenship

  1. ANKER BEBBIES!

    1. Damon Root is wrong. Period.

      1. Root is a fool. ‘And subject to the jurisdiction of”

      2. What does it mean to be “subject to the jurisdiction” of the United States?… The Citizenship Clause, he explained on the Senate floor, “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

        Notice that Howard specified two types of aliens whose U.S.-born children would not qualify for birthright citizenship…

        Damon, I count 300,000 people a year gaming the system by coming to America for the sole purpose of dumping an anchor fetus. Even you cannot argue that this is what was intended by the 14th Amendment.

        I say anchor babies are not US Citizens. You say they are. What does the Supreme Court say?

        In the Slaughterhouse Cases 83 U.S. 36 (1872) the Supreme Court interpreted the “subject to the jurisdiction therefor” clause as follows:

        “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.”

        The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

        Care to explain that away?

        1. Care to explain that away?

          It’s a parenthetical in a case having nothing to do with birthright citizenship that was explicitly set aside in a case having everything to do with birthright citizenship.

          Explanation enough?

          1. It most certainly is.

            1. Not really.

        2. Yes. People within embassies are not subject to the jurisdiction of the United States. Your entire interpretation hinges on the misinterpretation of a German comma as an Oxford comma. But of course this is all moot: SCOTUS settled the question in 1898. Root’s characterization of the portion of the Congressional Globe tallies with my impressions: the nativists and their opponents agree that the children of Chinese immigrants become citizens if they are born here. The esteemed Senator from California also has some choice words for the esteemed racist from Pennsylvania about the horrors of Chinese-Americans’ existence, to wit, “we’ve got this.”

          You, who have misread the text, are not two people because I put the comma before “who.”

          1. Except that the Court identified in the Wong Kim Ark decision that such birthright citizenship was limited to only a subset of resident aliens: those who were permanently domiciled in the United States.

            Honest question: how can anyone who can be scooped up at any moment by law enforcement and deported ever have a legally meaningful intent to permanently live and reside in the U.S., especially when such intent is wholly conditional on not being caught and deported?

            1. The Court did not decide on those who were temporarily domiciled or even sojourning in the United States because it wasn’t asked to and didn’t have to.

              1. The word domicile is understood inherently to mean a permanent residence… there’s no such thing as temporary domicile.

                1. Whatever.

                  In fairness, it looks like a good many of those 9000+ hits are saying that domiciles are not temporary. But most others have a full understanding that some meanings are modified when adjectives appear in front of them.

            2. Several times the Wong decision describes his parents as permanent residents. I can therefor argue that it’s granting of citizenship only applies to permanent residents, as other classes are not mentioned.

          2. You people use the term ‘nativist’ as a pejorative. A more accurate term would be ‘citizenist’. Under the current regime, and with anchor babies, there is no value to being a citizen. Yet there is more liability through greater cost, legal scrutiny, etc..

            You open borders types better get on the right side of this. I know patriotism is a punchline to you people, but maybe you will all wake up and your sense of self preservation may provide some motivation.

            1. Most economists agree that immigration is a net positive. Sense of self-preservation? What, you think too many Mexicans in California will finally cause the Big One? Where the hell is this fear of immigrants coming from?

          3. That stuff about embassies is a myth. The host country retains sovereignty over the space. If an unimmune person commits a murder in an embassy the host country can arrest and try them.

        3. Although I’m a libertarian, from a strictly legal perspective, the real debate should be whether Congress can legislate the “subject to its jurisdiction” clause. Native Americans did not gain citizenship with the ratification of the 14th amendment. It took an act of Congress in 1924 and again in 1940 to extend citizenship to Native Americans. The constitutionality of the legislation has never been challenged in courts. In the absence of any relevant legislation, SCOTUS correctly ruled that Wong Kim Ark was a citizen. So, the question is: If Congress can pass legislation conferring citizenship to Native Americans, can they also legislate limiting eligibility for citizenship? What’s also missing from the citizenship debate are the diminishing benefits of citizenship and the increasing burdens of citizenship. Current interpretation of law is that all persons (subject to its jurisdiction) born in the US are automatically citizens, regardless whether a person wants it or not, or whether any affirmative act, such as voting or application for a passport, is required to gain citizenship. And should someone decide they don’t want US citizenship, it will cost them $2500 to renounce it.

    2. Latino’s need to speak English!

  2. …and we take care of the baby for 85 years.

    Everyone is a burden on the state to people like Trump who thinks government must solve every problem.

    1. It’s not that Trump thinks the government must solve every problem (although he might). Rather, it’s that he acknowledges that the government WILL try to solve every problem, and even as president, he’d be powerless to stop that.

      1. I don’t really see him, as president, saying to anyone, “I can’t fix your problem. I don’t have the answer for this.”

        1. But he doesn’t even try to give an answer. It’s all…
          “I’ve talked to people”
          “I’ve seen X,y,z”
          “People don’t respect us”
          “I’ve been very successful”

          He has no fucking idea what he is doing.

          1. No presidential candidate really gives full answers to anything nor do any give specifics on anything and they all say I’ve talked to people or I’ve seen, so Trump is right in line with the rest of the lying candidates.

    2. And you are a fool. The government, rather than solving every problem, actually makes many more problems then it solves.

      1. – 1 reading comprehension.

  3. It is true that the current Supreme Court would never interpret the 14th Amendment as NOT granting jus soli citizenship. However, that doesn’t prevent us from creating a new amendment to fix that. It’s an idea whose time has come. We need to join the community of nations who have jus sanguinis citizenship. We shouldn’t be on the wrong side of history. (isn’t this the way we’re supposed to argue?)

    1. I like it when the argument switched from the usual American exceptionalism and suddenly we should be more like those countries that we are supposedly better than.

      1. I was attempting to sarcastically turn liberals’ own normal arguments against them. I don’t care what the rest of the world does, in our current situation, jus soli makes no sense.

      2. I was attempting to sarcastically turn liberals’ own normal arguments against them. I don’t care what the rest of the world does, in our current situation, jus soli makes no sense.

        1. That’s what I figured. But I have heard anti-immigration right-wing folk make a very similar argument of “no one else has birthright citizenship”.

        2. I’m sure creating an underclass of millions of people who have lived their entire lives here, know no other country, and still don’t have legal residence is going to do wonders to improve the country (and I’m sure it will totally promote assimilation, which conservatives supposedly care about a lot!).

          1. I’ll make you a deal. For every illegal we grant amnesty, you agree to help pick a progressive that will be deported in their place. This involves stripping them of citizenship, assets, etc.. And sending them to some Marxist shithole. Never to return.

          2. 160 other countries manage it.

  4. So, I guess you can say that the weaknesses in Donald Trump’s argument are YUUUUUGGGGE!!

  5. You can have open borders and a Nation OR a Welfare State and a Nation, but not all three. I would argue that the problem is not Trump (who is an idiot) and his dubious interpretation of the 14th Amendment, but the political establishment and THEIR dubious interpretation of the entire Constitution as allowing them to play Lady Bountiful with other peoples’ money.

    1. The ridiculous interpretation of the “Commerce Clause” has pretty much rendered the rest of the Constitution invalid. When the commerce clause can be used to negate the 2nd amendment (see: gun free zones), there’s not a right or liberty that is safe.

      1. Another example of the absurdity of the commerce clause used to infringe is the background check process. It is based on the government’s “authority” to regulate interstate commerce. It claims that background checks are justified by the authority of government to act in the interest of society in “compelling” circumstances. But, if that were true with firearms then they could also justify the background checks intrastate as well. They can’t. So logic would suggest that the justification for the authority is because a product passes over state lines. It’s bullshit.
        The “compelling interest” is bullshit anyway because it was based on a study that showed handguns represented 80% of firearm deaths and . . . shazam . . . government can now compel a people give testimony against themselves, create a record of gun model, make and serial number, your address etc . . . in order to exercise your right.
        I think I’ve gone rant again . . . 🙁

    2. I’m curious what is meant by “Nation” in this context? It seems to me that you absolutely can have all three, but your welfare system might end up bankrupt more quickly than it otherwise would.

      1. Let us define “Nation” as a society with a culture of its own and a political system works as well as any of them ever do. Yiu can have open borders and such a thing, only so long as people crossing the borders do so because they want to a) join that Nation or b) earn money in it for a while and then go home. If they come to live in enclaves of another culture and collect welfare, then you very rapisly no longer have a nation, you have a basket case.

        1. But even now you have a variety of cultures within the U.S. I don’t see how you can’t in a large, geographically-dispersed nation of 350 million people with little shared history. Maybe that already makes us a basket case but it’s been true for a long time.

          1. The Romans were fantastic at Romanization for a long time. It was because after conquering another people they were usually quick to grant them rights and start pumping money into the new territory.

            Well, in general life under Roman rule was a huge improvement for a few hundred years there,

            1. But the Roman empire was still culturally diverse. You just have to look at the way it broke up to see that. And how much of that Romanization occurred among the ruling class, as opposed to the commoners?

              1. Yes and the Romans had political hegemony over these ppl. They didn’t sit back in Rome and assimilate immigrants, they pushed out and gained political power over the lives of the origin countries.

                Comparing Imperialist dominion over foreign cultures to Cultural Suicide Host Countries is apples to oranges. The diversity may be similar but the geography and exertion of political control are both different.

                Ultimately Rome was not being invaded by beggars. Rome was exporting dominion.

                1. Steve Sailor has an interesting article that depicts how immigration of an antagonistic unassimilated mass of foreigners did in fact contribute to Rome’s fall:

                  http://www.unz.com/isteve/civi…..an-empire/

                  1. Thanks for that link!

        2. I missed the part in libertarian theory where it talks about the right to one’s culture.

    3. Trump’s interpretation of the 14th amendment is correct. It was NEVER intended to work the way it does now. Only an uneducated fool thinks otherwise.

      1. You know a person has a bad argument when he declares himself the winner, and his opponents idiots, before he’s uttered even one word of it.

        1. You know who REALLY has a bad argument? Someone who responds to such a proclamation with snark. As if that has any bearing. But i can understand your confusion, given your apparent cognitive limitations.

      2. Interpretations, like Root’s, seem to think that the primary author of the fourteenth listed “foreigners” and “aliens” followed by examples of those, instead of these being distinct examples – foreigners, aliens, ambassadors and foreign ministers.
        Why would he say foreigners and aliens when the “examples”, claimed to be what followed, would have sufficed?

        1. The clause “…who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States…” does not provide examples: It provides explicit circumscription of who “…will not, of course, include…” applies to.

          When I say “residents of New York who are Yankees fans”, “who are Yankees fans” is not an example, but an explicit description of which residents of New York I am talking about.

          As if there is any more question, that circumscription is immediately followed by “…but will include every other class of persons.”

          1. Maybe so, but he also uses the “who are” prefix before he says “foreigners, aliens”, then the next category of “ambassadors and foreign ministers”.
            Two, separate categories using the same qualifier of “who are”.
            The language, in the record is not so clear as the pro-invaders make out and Congress should use their prerogative to clarify, if they had the guts.

  6. The simple solution, and I think everyone will agree with me here, is to test their blood to see if they truly bleed red, white and blue.

    Just tie up every brown person, put them on a couch, extract their blood, and have a bearded Kurt Russel test it for purity.

    1. I know you gentlemen have been through a lot, but when you find the time, I’d rather not spend the rest of this winter TIED TO THIS FUCKING COUCH!

      1. i need to watch The Thing again…what a killer flick!

    2. Have you always been such an idiot, or did you take stupidity lessons?

  7. Root doesn’t know his butt from thrid base. There is NO god reaon to asume thta birthright applied to child of illegal immigrants. What sense would that make? Calling someone a citizen whose parents will most likely never be citizens? How dumb is that.

    1. Did you bother to read the article? Can you address the constitutionality beyond “I says so!!”?

      1. Read teh article? YOu sound like a reel losre. Some ofe us are trying to mak Ameirca grate again.

        1. MAKE AMERICA GRATE AGAIN!

          /Neenah Foundry

          http://www.nfco.com/municipal/…..age-grates

          1. Where the hell is Neenah?
            [url]https://youtu.be/Iqw7D-6W5kQ[/url]

          2. MAKE AMERICA GRATE AGAIN!

            It has been grating on me since 1/20/09.

        2. I bet Arthur’s best friend’s sis-in-law makes 50,000$ an hour on her laptop.

      2. I read it. And it isn’t ‘I says so’. It’s more about ‘IT says so’. Jurisdiction doesn’t mean what you think it does. This has been addressed several times here and many other places as late. You just want open borders so badly you don’t care how badly the constitution is shredded, do you?

    2. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…

      Are you claiming people in the US illegally are not subject to the jurisdiction of the US? It’s pretty clear.

      1. That would be a pretty sound claim. Seeing as how someone in the country legally clearly feels they are not subject to the jurisdiction of the USA by there flagrant defiance of the U.S.’s expressed laws. This is really simple guys.

        It’s a complete red herring to pretend that anything said about the 14th Amendment, when the category of illegal residents didn’t exist, is material to understanding how to treat illegal aliens and their children.

        1. I don’t think that feelings matter here. Illegal aliens clearly are, in fact, subject to US jurisdiction. The fact that they can be arrested and deported makes that abundantly clear. How you or they feel about it is entirely irrelevant.

          1. Jurisdiction was historically used in a different context. The way you use it, anyone setting foot here qualifies. So there would be no need to make a written distinction.

            1. Agreed. The phrase is ambiguous. An alien here illegally can be deemed “subject to the jurisdiction” of the U.S. because he or she must follow our laws, but he or she can also be deemed “subject to the jurisdiction” of his or her country of origin because that county could still demand his or her allegiance. It is not as simple as simply reading the words.

              Also, Cowan’s question about Gypsies and “Mongols” pertained to the States losing the ability to define who was and was not a citizen of the State, not to the definition of United States citizenship.

            2. For example, ambassadors, and those who their governments attach “diplomatic immunity” cannot be arrested, but any other foreign minster can.
              How does that jibe with Root’s assessment?

        2. Do agents of the US government also not think those people are subject to their jurisdiction?

          1. Illegals are citizens of other countries. And therefore subject to their jurisdiction. That’s what it means in its original historical context.

            1. You haven’t provided a citation for this claim and you won’t, because it’s just wishful-thinking on your part.

              1. Try this. It has an extended discussion of the two types of jurisdiction.
                http://www.nationalreview.com/…..-amendment

                1. Thank you LW. That gonna work for you Marty?

              2. How about this? Native Americans were not covered by the 14th Amendment, with many not being allowed to become citizens until the Twentieth Century.

                Since they were obviously subject to the laws of the United States, the term “subject to their jurisdiction” refers to allegiance. The law makers at that time believed that Native Americans owed fealty to their tribal leaders. Thus, the inclusion of that term in the 14th Amendment excluded them from its coverage.

            2. No, illegals can be arrested in the US. Diplomats, on the other hand, cannot be. We can either declare them persona non grata and have them shipped home or ask the sending country for permission to apply US (or state or local) laws to them.

              1. They are subject to US territorial jurisdiction but not US political jurisdiction. For instance foreigner can not be tried for treason in the US because they are not a citizen.

                1. I should have said becasue they don’t owe allegiance to the US.

        3. Do you obey every law to the letter all the time? I know I don’t. I flagrantly defy many laws regularly, yet I am still subject to the jurisdiction of the US and the state I am in whether I like it or not. Respecting or obeying laws has nothing to do with whether or not you are subject to them.

        4. Okay, Sam, an illegal alien rapes and kills your wife and murders your kids…are they or are they not tried and punished under US/state law?

          Or does he stand there with an ID in his hand, like Arjen Rudd, claiming, “DIPLOMATIK IMMUNITY?”

          1. Okay, Sam, an illegal alien rapes and kills your wife and murders your kids…are they or are they not tried and punished under US/state law?

            Depends.

            Are they in a sanctuary city?

            [Ducks, runs]

          2. Well if as is likely he returns home to Mexico most likely he will never be subject to those laws. There’s a reason the FBIs most wanted list is dominated by foreign nationals these days and it’s not just terrorism.

            1. Well if as is likely he returns home to Mexico most likely he will never be subject to those laws.

              Which has absolutely no bearing on whether they are subject to the jurisdiction thereof.

            2. So, what you’re saying is that I could go to Mexico, murder someone, and come back to the US and I won’t have to worry about being arrested and standing trial for murder?

          3. They are ultimately subject t the jurisdiction of another country being a citizen of another country.

            1. So you’re saying an illegal immigrant can’t be arrested and charged with a crime?

              1. That has nothing to do with the point. Scroll up and read a detailed explanation. It’s been posted several times. Long Woodchopper also posted a link to a more detailed discussion of the use of the word.

                1. Woodchopper?

                  Thing of a store run by a guy named Long which sells woodchippers, for whatever use

        5. I don’t feel I’m subject to the jurisdiction of the US. But it doesn’t matter what I feel.

          If they are not subject to US laws, they are not illegal immigrants, and so by what authority can the US eject them?

          1. You do get that diplomats can be ejected too right? We reserve the right to eject those not under our jurisdiction. Nice try though.

            1. Immigrants are subject to all laws in the US, you stupid fuck. Diplomats are not.

              1. Illegals weren’t drafted during Vietnam. So they aren’t subject to all US laws.

                1. Neither were women. SO what?

                  1. So illegal immigrant men were not “subject to all laws in the US”. Foreign men who were here legally as well were not subject to the draft. so they too were not “subject to all laws in the US”. So that means they were not subject to the complete jurisdiction of the US and their children should not be citizens.

            2. Illegal immigrants who commit crimes aren’t just subject to ejection but can also be tried and imprisoned. Nice try though.

              1. Anyone in any country is always subject to the territorial jurisdiction of the country. Brits can’t drive on the left side of the road in the US for instance.

          2. Fine.

            Keep the citizen-kids.

            Deport the illegal parents.

            No 14th Amendment question.

            Let’s see how many “anchor babies” happen after that.

            /sarc?

            1. who is paying for the bastard child?

        6. What law did the baby of an illegal immigrant violate?

          And if lawbreaking puts you outside US jurisdiction, I dare say we have millions upon millions living here who are not.

      2. How does Senator Howard’s statement not answer this:

        “will not, of course, include persons born in the United States who are ***foreigners, aliens,*** who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States…”

        Root talks about kids of ambassadors, but somehow skips over the the first two, broader categories. Anyone who is born to someone who just sneaked across the border would be a foreigner, and thus the Citizenship Clause wouldn’t apply to them.

        1. Root is trying to pretend that portion you’ve marked off with stars is one giant appositive some how modifying two different words.

        2. will not, of course, include persons born in the United States who are foreigners, aliens, “WHO” belong to the families of ambassadors or foreign ministers…

          [emphasis mine]

          Words…how do they work?

          1. will not include, of course, persons born in the united states
            1. who are foreigners, (i.e.) aliens
            2. who belong to the families of ambassadors…

            The second who refers to persons, not foreigners and aliens. That’s how words work.

            1. Yeah, Dave…looking for the word “and”…not coming up with it.

              The second “who” refers to the previously listed entities. If it was in addition to, there would be an “and” in there.

              1. Isn’t this a transcript of a verbal statement? The whole thing is a grammatical mess. I see the commas both before and after “aliens” as making this a list, not a set of increasingly narrow modifiers. But to each his own.

                1. I agree with you. The term ‘foreigner’ and ‘alien’ had two distinct meanings back then. Being an alien meant that you had established a residency in the United States. Thus, all aliens are foreigners, but not all foreigners are aliens. Ambassadors and other representatives of foreign countries, while, being residents during their term in office, where only temporarily in the United States.

                  I believe that the proper reading of the phrase is: (1) foreigners who have established a permanent residency in the United States; (2) foreigners who have not established any residency in the United States; and, (3) foreigners who are government representatives who have established a temporary residency in the United States.

                  (If you think about it, the distinction between the two terms still exists. I have never heard anyone refer to an immigrant as an “illegal foreigner” or a “legal foreigner”.)

                  The author also fails to mention that at the time of the case of “United States v. Wong Kim Ark” the Chinese Exclusion Laws were in effect. These laws that were in place from 1882 until the 1940 prohibited Chinese residents, no matter how long they had legally worked in the United States, from becoming naturalized citizens. Thus, if Mr. Ark was would have been of European descent, for example, his parents could have become citizens and the case wouldn’t exist.

            2. There would be absolutely no reason to single out ambassadors if he was already talking about all aliens. Such a reading would also exclude children of legal immigrants who aren’t citizens. That is definitely contrary to standard operating procedure for the country’s entire history. If you read the debate about it, critics attacked it on the grounds that it would give children from “undesirable” groups (like Chinese, gypsies, etc.) citizenship.

          2. Your lack of intelligence is such a profound source of joy for me. They should print of your comments and read them to terminally ill people.

      3. No. Those illegals are still subject to the jurisdiction of their home countries.

        1. So we can’t enforce US laws against them?

    3. If they based citizenship on spelling, you’d be in big trouble.

    4. Maybe it is dumb (I don’t think so). But that’s what the constitution says.

      I suppose you could change the constitution to say something about parents being legal residents or something. But I would be very wary of messing with it. It is a very good thing to have a clear, unambiguous definition of who is a citizen by birth. I really don’t want to see congress empowered to legislate who is or is not a citizen.

      1. Wong already says that per the article, “including all children here born of RESIDENT aliens”.

    5. Calling someone a citizen whose parents will most likely never be citizens? How dumb is that.

      It’s not dumb at all when you consider that children tend to grow into adult human beings with an existence independent of their parents’.

      1. By this logic there should be no exceptions. Are ambassador’s kids prevented by some magical means of seperating into an independent existence? Honestly terrible argument.

        1. I think you missed the point. He’s not saying that growing into adults eventually is the reason why birthright citizenship should exist for children of illegal immigrants. He’s saying that it is a reason why giving citizenship to the child of people who aren’t likely to ever become citizens is not obviously “dumb”.

          1. Ding ding ding

          2. You are making a distinction in your argument while he is showing a counterexample of intent that makes your reading absurd.

            He says example X, and you dig in your heels.

            He was arguing inconsistency, and you are clarifying and ignoring the inconsistency.

            Good logic.

        2. By this logic there should be no exceptions.

          The exception is written directly into The Constitution of the United States of America.

          Can you not read?

          Ambassadors are not subject to the jurisdiction thereof.

          1. You are one of the dumbest people on here so I’ll make this simple. Actually screw it you are so confused what’s the point. We are talking about the logic that went into drafting the amendment dipshit.

            1. We are talking about the logic that went into drafting the amendment dipshit.

              Fine, Sam, then we are agreed. Trump is wrong and claiming the children of illegals aren’t citizens is, in fact, as the article claims, unconstitutional.

              Please petition the government to pass an amendment changing the law of the land to something you find more preferable.

            2. He’s not dumb, he’s willfully obtuse on this issue because it’s a religious belief to him.

              Might as well try to convince a christian that Jesus was really a demon.

              1. He’s not dumb, he’s willfully obtuse on this issue because it’s a religious belief to him.

                You’re talking about Haysom, I assume.

                1. You’re talking about Haysom, I assume.

                  I think you assume wrongly. Frank is handing out ass whoopings on this issue like there’s not tomorrow. All the Trumpkins have to offer is wishful thinking, attacks on his intelligence and a litany of hypothetical that don’t prove what they think that they prove.

        3. The “magical means” are the words of the 14th amendment.

          This is weak, Tulpa. Someone has a case of the Mondays.

    6. I’m not sure I know thrid base either.

      1. Who?

    7. How did you determine legal versus illegal immigration in 1868?

      1. @Will: You didn’t, for the most part.

    8. That’s because there was no concept of an “illegal immigrant” back when the 14th Amendment was ratified. Restrictions on immigration came later.

  8. “A woman gets pregnant. She’s nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years. I don’t think so,” Trump declared.

    I, for one, think we should absolutely not allow people in if they come from a country where babies never grow up. We’d be overrun by diapered vomit machines in just a few years!

    1. So we get to deport David Vitter?

      1. Hey-oh!

    2. Our safe spaces are filled to capacity as it is!

  9. Or we could, you know, simply annex Mexico on the grounds that we’re paying for it anyway….

    1. Let’s just go with Ron White’s idea.

      “eems like eventually somebody’s gonna take that checkbook away, doesn’t it? And you know what? China’s cashing our checks and that’s not a good plan for this country, mark my word. And they can’t figure the fay to fund this war and I came up with a GREAT idea that nobody’ll listen to, well, you’re about to the listen to it because of you’re proximity to the speaker system. I was just down in Coco Beach, Florida. And just a south of Coco Beach, Florida, is a huge air force base, that takes up about 115,000 acres of oceanfront property. They have military housing on the beach. Major Nelson didn’t have oceanfront property and he was an astronaut with a motherfuckin’ genie. If ya gotta’ have oceanfront, join the navy, that’s all I’m saying. And back that base up 15 miles and let us sell this asset to help pay for this war effort. We can sell it to Israel. They’ve got a lot of cash, they need a place to stay, that shit ain’t workin’ out for them over there. And it’s the only part of Florida they don’t already own. And we take the money we make from selling the rest of Florida to Israel, we buy Mexico, fix it up and FLIP IT! Now, we’ll have to send down some painters and landscapers ’cause they’re all up here. And when they’re gone, you’re gonna wonder where the fuck they went. ‘Cause ya ain’t wanna do this shit yourself, not if you’re anything like me.

      1. (Cont)
        “We sell Mexico to a country that can put a ton of cash down, but you know they can’t make the payments, like PeruPeru has billions and billions of US dollars, they do. In cash in banks all over Peru. It’s our cocaine money they tricked us out of. I mean, it’s your cocaine money they… tricked you out of. We get all that money back, billions of dollars, billions. And then, we finance the balance of Mexico to Peru. Right? And we let them get behind on the payments. We repossess Mexico and now, we have Mexico free and clear. New paint, new shrubs. And with all that cocaine money, we start buying countries south of Mexico. We buy them all. We buy Belize, Honduras, Nicaragua, El Salvador, Costa Rica, and every time you buy one of those countries, that long ass wall this country needs to build gets a little fuckin’ shorter, doesn’t it? Until eventually, we buy back the Panama Canal, which we built, anyway, stand there and go “SWIM THIS, BITCH!”

        1. “Tater Salad 2016!”

    2. “simply annex Mexico”

      Looking forward to some cheap beachfront property.

      1. And just THINK of the opportunities for creative eminent domain in Mexico City!

        1. Not to mention the fact that every aspect of their economy is impacted by the drug trade so asset forfeiture galore.

  10. ME LIKE TRUMP! TRUMP TALK TOUGH! TRUMP MAKE PENIS WORK AGAIN!

    1. Stop lying, Sug. That thing still doesn’t work and you know it.

      1. old, shriveled, and lacking in important glucose

        1. Scotch flavored Testosterone Enhancement, with friendly cigar aroma!

        2. Fructose, not glucose.

      2. IT WORK AGAIN WITH PRESIDENT TRUMP! TRUMP! TRUMP TRUMP!

      3. Yeah, but an old drama queen can dream.

  11. “The GOP’s Unconstitutional Attack on Birthright Citizenship”

    How many other Republican candidates are attacking birthright citizenship?

    Or is Trump somehow considered the official spokesman of the Republican Party despite only garnering 24% support?

    1. You see Donald Trump is stupid. Donald Trump disagrees with Root on this issue. Therefore, anyone who disagrees with Root on this issue is stupid like Donald Trump.

      1. It sounds like because Trump said something, that means the rest of the GOP feels it in their bones.

      2. Can someone name an issue that Trump HAS been right on?

        You see…Donald Trump IS stupid and anyone who agrees with Donald Trump IS stupid too.

        1. “an someone name an issue that Trump HAS been right on?”

          I think he wants to end the war on drugs. Or at least he used to, not really sure anymore.

          1. He supports the 2nd amendment more strongly that any other republican candidate.

            But that obviously doesn’t matter cause he hates dem mexicans.

    2. Ted Cruz and Scott Walker have also come out with Trump on this issue.

      1. Scott Walker hit less than 1/2 of 1% in the last poll.

        I’d like to see a link to that coming from Ted Cruz.

    3. Several other candidates have. Including Rand Paul, sadly.

  12. Then why didn’t it apply to Native Americans?

    http://nativeamericannetroots.net/diary/617

    1. Past fuck-ups are not an excellent reason to fuck-up again.

      1. I’m speaking to the intent of the Amendment which was the point of the article.

        1. It didn’t apply because the natives had citizenship in their tribe not the USA. It’s at the end of the article.

          1. And Juan’s mother has citizenship in Honduras or Mexico. Do you have a point?

            1. Are you actually that stupid?

              1. Explain the difference between those two conditions.

                1. The difference is where the child is born, not where the parents are born.

                  1. Indians weren’t considered citizens even if they were born outside the reservation. Try again. Let’s say more tries since this is libertarian site and immigration brings out the warm fuzzies.

                    1. Indians weren’t considered citizens even if they were born outside the reservation.

                      And no one ever makes any unconstitutional laws and the courts always get everything right?

                  2. The difference is where the child is born, not where the parents are born.

                    Except Indian children born outside the rez and in the US weren’t considered citizens under the 14A.

                    So why are Honduran childern born outside Honduras and in the US considered citizens under the 14A?

                    1. Indians were considered a special exemption because they were sovereign entities that existed within the borders of the United States. Children of foreign parents were never treated the same. If you read the debate around the amendment, one guy specifically asks (paraphrased) “So this subject to the jurisdiction clause is meant to exclude Indians not taxed, right?” Considering there were way more immigrants than Indians at the time it was passed, it would make no sense for that to be perceived as the primary intent of the clause if it was meant to exclude both groups. Honestly, it is even about the 14th. Jus soli has been the standard principle for the entire history of the country, and for almost every other country in the Americas. Slaves and natives were about the only groups that ever got exempted from that (plus diplomats and the like).

                    2. So this subject to the jurisdiction clause is meant to exclude Indians not taxed, right?

                      I’m no tax lawyer, but I’m pretty sure that illegal aliens are not mentioned in the tax code as being subject to tax, either. The code only refers, as far as I know, to “resident [legal] aliens” and “non-resident aliens”. If tax = “subject to the jurisdiction”, that opens up a new line of inquiry, no?

                    3. that opens up a new line of inquiry, no?

                      I’m not so sure. A sovereign nation can write laws that exempt illegal aliens from certain things. But does that mean that they aren’t subject to the jurisdiction? I would say that it simply means that the government hasn’t chosen to exercise their jurisdiction over them in the particular case.

                    4. Illegal aliens are subject to the Internal Revenue Code as any income earned in the United States is subject to tax. They can, indeed, receive Tax ID numbers and file returns without (theoretically) getting reported to immigration authorities.

                    5. “Jus soli has been the standard principle for the entire history of the country,”

                      Not true. Each state said who was a citizen and many excluded the children of transient/ non domiciled aliens.

              2. Yes. He doesn’t know where Honduras is.

        2. I’d imagine it has something to do with them being considered sovereign nations (as much of a joke as that turned out to be) and therefore not subject to the jurisdiction of the US. Though if they were not considered citizens if born outside of the reservations, that kind of falls apart.

          1. They weren’t.

            1. Ever notice casinos are on Indian territory? Because they don’t have to follow the laws of the state, because they are considered a separate nation.

              1. Reservations don’t fall under state jurisdiction but do fall under federal jurisdiction.

              2. Ever notice tribes have to cut a deal with the state before they can open a casino?

          2. that’s the “not taxed” part. As long as a native claimed citizenship to his tribe, he wasn’t taxed by the US. But if he declared allegiance to the US, then he would be treated as a citizen who had renounced his tribal membership.

      2. I also don’t see how giving birth while on vacation in another country morally obligates that country to grant citizenship to that child. Is that something you would expect as a right if your wife gave birth in another country while on vacation? Would you consider your child not being granted automatic citizenship morally reprehensible? Honestly, this issue is pretty non-existant on the list of things I care about but I don’t follow the logic here.

        1. Why would it be morally reprehensible if my child got citizen somewhere I was on vacation? They would still have US citizenship.

          1. Would it be morally reprehensible if they were NOT granted citizenship by that country.

            1. No. They’re a sovereign nation. They can write whatever laws they want.

        2. I wouldn’t expect it unless the law of that country says that’s how it works, as is the case in the US. It’s a legal obligation, not a moral one.

          I don’t think birthright citizenship is a moral imperative. Though I do think it is a good way to do it because it keeps politics mostly out of who is or isn’t a citizen.

          1. Bingo. Birthright citizenship is easy to understand and discover. Add any ambiguity to birthright citizenship and it just allows disfavored classes to be slowly denied citizenship.

        3. I think the morality of the question is irrelevant. The constitution, however, obligates our country to grant citizenship.

          1. I agree but It seems though as many of the supporters seem to imply it is a moral issue. If you are against it then you are worse…

            1. I don’t know about “moral” or “immoral.” But I can make lots of arguments why jus soli is good. We probably don’t want millions of people in this country who can’t vote or fully participate in our democracy, resenting their second-class status, who never fully assimilate or feel welcome here.

              We have a more vibrant and interesting country because of immigration and because our birthright citizenship laws invest them and their families in our system.

              We’re not a country based on blood and we never have been. In fact, this country is the argument against that notion.

              And, if you are against it, I have to ask: why? Do you think birthright citizenship undermines your claim to it somehow?

    2. Re: AlmightyJB,

      Indian territoties were not US territories. The amendment only mentions those born within US territories and that are subject to the laws of the US, thus ipso facto excluding the sons and daughters of foreign diplomats who are subject to the laws of their own countries and those born in the Indian territories.

      1. What about those born outside the territories?

        1. From your link.

          n 1887 Congress passed the Dawes Act which allowed Indians to become citizens if they had abandoned their tribes and adopted the habits of civilized life. It was generally assumed that “civilized life” meant that they could speak English, had become Christian, and were actively engaged in farming. In 1924 and again in 1940, Congress passed legislation granted citizenship to all Indians.

          1. “Speak English, had become Christian”

            Those monsters!

            1. Those monsters!

              Dawes was an ass. The only reason for passing the Dawes Act was to break the power of the Tribes, and to get additional land.

              The act also provided what the government would classify as “excess” Indian reservation lands remaining after allotments, and sell those lands on the open market, allowing purchase and settlement by non-Native Americans.

          2. So, it took a separate law, and was not done under the Amendment.

            1. Natives were consider part of their sovereign tribe from what I read, so if you want to be American you had to choose to quit being Cherokee or whatever.

              1. Which means that, as we apply the 14A to American Indians, “jurisdiction” meant “exclusive jurisdiction”. Again, interesting.

                1. We did use to make people renounce other citizenships before being naturalized as Americans, so that seems unsurprising.

      2. Indian reservations are absolutely US territory.

        1. Indeed they are. They have a strange sort of semi-sovereignty, but I don’t think there is any question that the Indian reservations are, to quote the Amendment, “in the United States”.

        2. They clearly are now. But it seems like that was less clear in the 19th century.

          1. The Court did hear the case but declined to rule on the merits. The Court determined that the framers of the Constitution did not really consider the Indian Tribes as foreign nations but more as “domestic dependent nation[s]” and consequently the Cherokee Nation lacked the standing to sue as a “foreign” nation. Chief Justice Marshall said; “The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of the opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States.” [Cherokee Nation v. State of Georgia, 30 U.S. 1 (1831)]

            Which was a terrible ruling.

            1. So contra Zeb it couldn’t have been more clear.

              1. So contra Zeb it couldn’t have been more clear.

                Actually no, the ruling cast doubt over what exactly the status of the Indian Nations was, and is. Even today people, well lawyers, still argue over what it really means. That is why I said it was a terrible ruling.

            2. an Indian tribe or nation within the United States

              I wonder if they consciously used the same language as the 14A

              All persons born or naturalized in the United States,

              1. I wonder if they consciously used the same language as the 14A

                Probably not since it was in 1831.

              2. *Looks out window at Indian casino*

                Ima guess they aren’t subject the same jurisdiction I am, even though we’re both in the same state.

                1. Don’t the Indian casinos have to get approval from the states that contain the reservation before they can have a casino? Or am I thinking of something else.

                  Even if they aren’t subject to state jurisdiction, it is pretty clear that they are subject to federal jurisdiction. http://en.wikipedia.org/wiki/I…..latory_Act

                  1. This is what people don’t get.

                    Yes, the Indians have to get state approval for casinos.

                    Yes, state and federal law apply on Indian reservations, including most notably those laws which set up or permit the semi-sovereign Indian “governments”.

                    No, Indian nations are not foreign nations. They are racially-based semi-autonomous sub-governments in the US. Probably, when you boil it all down, relics of a more barbarous age, and should be done away with. Why were reservations in South Africa a crime against humanity, but not in the US?

                    1. and should be done away with. Why were reservations in South Africa a crime against humanity, but not in the US?

                      You would have a devil of a time doing this, as the Indians would fight tooth and nail to keep the reservations. In their view, it is the only land of theirs that they still have, the US has take the rest. If you could figure out a way to end the reservation system while ensuring that the land stays with them, you might have a chance, otherwise no way.

                      I have often advocated for an ANSCA type law, whereby the Tribes are converted to Indian Corporations and the tribal members are stockholders in that corporation. That ends the dual sovereignty issue and preserves their land. It is an EXTREMELY hard sell to even get someone to listen to that.

                    2. Why were reservations in South Africa a crime against humanity, but not in the US?

                      One could certainly argue that they are given conditions on the reservations that haven’t been able to cash in on the casino thing. I guess the big difference with SA is that in the US they can choose to leave the reservations and just be ordinary US citizens.

                      I say either give them real sovereignty and let them be whatever they want or end the whole charade.

                  2. Article 1, Section 2 of the Constitution states that Natives are not under the control of the United States, and therefore cannot be taxed.

                    As for why they have to axe permission, I’m guessing because they are a defeated domestic nation.

                    1. Does it say that, or does it say that Indians that aren’t taxed don’t count toward apportionment of congress seats? I honestly don’t know what the intent was or how it has been interpreted. But that’s what the text says to me.

                      I would think that the 14th amendment changed that along with the 3/5ths thing, at least for Indians not born on the reservations. But what do I know?

                  3. I don’t know how it is other places, but around here asking about casinos is mostly about treaties and using off reservation lands for casinos.

                    There was a big to do around here when one tribe wanted to build a casino in a town, but a treaty another tribe had said no other tribe could build a casino within x miles of their reservation.

                    And the reservations are under federal jurisdiction, the FBI has immediate jurisdiction over major crimes, not the state or local authorities.

                    I’m guessing the citizenship thing has to do with treaties, of which there are so many it’s hard to know what actually applies.

                  4. No, that’s the whole reason they exist.

                    IIRC back in the 80’s a tribe decided to set up a casino and the state said, “You can’t it’s against state law!” and the tribe said, “We’re not subject to state law, only federal” It went to SCOTUS, and the tribe won.

      3. All citizens of a country are subject to that countries laws no matter where they are on Earth. For instance it’s illegal for a US citizen to have sex with anyone under the age of 16 even if the foreign country allows it.

        1. Depends on the law, doesn’t it? The sex with children thing, for example, is only because a law specifically states that. As far as I know, most criminal laws don’t apply outside of US territory. Could be wrong.

          1. Tell it to the expats who are can’t get a bank account because of US reporting laws.

        2. Yeah, try going to a foreign country and telling them you don’t have to follow their laws because you are subject to US jurisdiction.

          The answer is that you are subject to a foreign country’s jurisdiction and, in some specially carved out cases, like tax law, you are still subject to America’s laws.

          1. I didn’t say you wouldn’t also be subject to the territorial jurisdiction of another country if you are in that country.

    3. Because the tribes were not considered to be fully under the jurisdiction of the United States

      1. Neither are the non-citizen parents of the children we are talking about here.

        1. Shut up. MOAR IMMIGRATION.

        2. Illegal’s are under the jurisdiction of the US government. Unless you think they have diplomatic immunity.

          1. See this is terrible logic. The category of illegal alien did not exist when the 14th was ratified. We have no idea if illegal aliens, who after all stubbornly and selfishly refuse to follow basic American laws, would have been considered subject to the jurisdiction of the USA at the time of ratification. Make your argument without stealing bases.

            1. “You’re following the letter of the law instead of muh feelz!”

              Sam

              1. Yes it’s just my feeling that illegal alien is a new category of residency. No laws were passed nothing.

                1. 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.

                  *Looks for hurts Sam’s feelz clause*

                  Nope, it doesn’t look like they put that in there.

            2. So, you think that speculating about counterfactuals is better than just following the plain meaning of the text?

              Who’s stealing bases?

              1. The plain meaning of the text is irrelevant. A new category was created that didn’t exist before. You don’t just get to say MOAR immigration they count. It’s you that is inject your lust for immigration into this argument. What base am I stealing. I’m simply pointing out that a new type of residency identity exists that couldn’t have been covered by this amendment. But you love burritos so you are getting angry.

                1. The 2nd admendment doesn’t cover assault riffles with the thing that goes up!!!
                  /Sam Derp

                2. The plain meaning of the text is irrelevant.

                  OK, well, that answers my other question. I suppose you also don’t think that the 1st amendment applies to the internet and the second only applies to muzzle loading guns.

                  I guess feelz is all that matters to you. Not sure why my feelings about Mexicans are relevant here or why you think you understand my motivations.

            3. Wong Kim Ark was arrested and considered for deportation when he arrived in San Francisco from China after the passage of the Chinese Exclusion Act, which barred Chinese from immigrating to the US. Wong was born in the US of non-citizen but resident parents before the Exclusion Act was passed. The SCOTUS decision many times mentions that Wong’s parents were permanent residents.

              I doubt that if a pregnant Chinese woman snuck on shore during the period of the Exclusion Act that her child would have been able to win the same case.

          2. Oh well it all makes sense now. Diplomate not ok. Illegal ok.

          3. Well, certain factions of the Political Establishment certainly treat them as is they did……

          4. Illegal’s are under the jurisdiction of the US government.

            So are American Indians. They are also under the jurisdiction of their semi-sovereign tribes, per a grant/delegation from the US government.

            1. Dean,

              Not at the time it was passed. Again, read the debate around the amendment. It was specifically recognized that the clause was intended to exclude untaxed Indians because of their special status as distinct political communities that existed within the boundaries of the US. It was never intended to apply to children of any foreign group besides diplomats.

              1. As noted above, are illegal aliens qua illegal aliens subject to tax under the Internal Revenue Code? I honestly don’t know, but the definitions I have looked at refer only to “resident” aliens, who have to be here legally.

          5. “Illegal’s are under the jurisdiction of the US government.”

            As were Native American’s albeit with certain rights granted within their reservations. Those rights did not apply outside of the reservation though children born off the reservation were still not citizens. My point really is just that there is a lot of ambiguity in how the law has been applied after the amendment was passed. Root is claiming zero ambiguity which I find to be somewhat disingenuous. That said, I really don’t care whether we grant the babies citizenship or not.

    4. and subject to the jurisdiction thereof

  13. I give up.

    *drops ball – heads toward home*

  14. So for the record an alien in American jurisprudence is anyone who is not a citizen or a national. So per the quoted congressional testimony sorry Pedro but thems the breaks. I’m sure you and your mom will love Mexico.

  15. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.online-jobs9.com

  16. and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes

    And exception which appears nowhere in the text of the Constitution.

    It comes down to whether “subject to the jurisdiction” was intended to mean “subject to the exclusive jurisdiction”. They didn’t say so, so it probably wasn’t.

    Still, interesting that they always had in mind at least one unwritten exception.

    1. I’m going to go ahead an assume the operating assumption was that of course they meant exclusively one jurisdiction. I mean that’s why we fought the War of 1812. Ockham’s razor says the Indians weren’t the exception but rather following the intended rule.

    2. It wasn’t specifically written out, but that was how it was understood. Read the debate around it. There was no controversy over the fact that the phrase excluded Indians not taxed and diplomats, while not excluding children of foreigners generally. The reason they didn’t spell it out is because this was understood at the time.

  17. …David Vitter?

    I was gonna say Zach de la Rocha*, but yeah!

    *is a confirmed douche, regardless of issue at hand.

  18. Way to ignore the elephant in the Wong case Root, “including all children here born of RESIDENT aliens”. Illegals and transient aliens are not residents. I would also like to point out that today the people of the US territory of American Samoa are not granted birthright citizenship.

    1. That’s because they are giants who would take over the country.

      1. AND I, FOR ONE, AM TIRED OF LOSING IN RUGBY TO SAMOA!!!

        1. I believe they are percentage wise more represented in the NFL than any major American city.

    2. Exactly libertarians want to pretend that a giant shift in residency laws didn’t occur between now and the 14th amendment. You no longer can just show up in America and be a resident alien.

      1. Residency laws still have nothing to do with the 14th Amendment.

    3. Illegals and transient aliens are not residents.

      Interesting, again. “Resident” often has a legally defined meaning, typically (at the state level) it requires a certain amount of time in-state and the intention to remain indefinitely.

      Apparently, you can be a resident of the United States, but not of the state in which you actually live. Weird, huh?

      There is a definition of “resident alien” in the tax code, but it requires that you be lawfully admitted, etc.

    4. Even before the 14th Amendment, children of foreign mothers who were visiting the United States were recognized as citizens.

  19. One couldn’t be a Reason writer and stay alive very long in many parts of Mexico today. The corruption in Washington and Mexico City is squeezing the patience out of people seeking a peaceful life. When your freedom of press is fucked there are probably many great reasons why people flee to the North, and are willing to do so illegally.

    In spite of the conflux of emotion and political posturing on immigration the single thing that should be addressed immediately is this idea of allowing illegal immigrants back on the street after committing an act of violence on another person. You don’t fucking award illegals with freedom after violence. The genius that came up with this idea should be hammer-fisted directly to the face by a silvertip. Sure, this nasty fuck can stream back across the border but at least a process is in place that doesn’t appear to condone violence.

    I also have to stare blades of writhing vipers at comedians or border patrol enthusiasts going on about average Muricans not being sympathetic to the abusive tactics of some of these arrogant shit-pricking border patrol agents. When you know for a fact that violent illegals are let loose directly into society after being arrested for some form of savagery there is no way clovers, the spineless, and border control agents can justify for a goddamn nanosecond harassing what is clearly a fucking irritated white person going about their business.

  20. “Donald Trump is running for president ? to the delight of uncles everywhere,” Samberg joked.

    Can someone please explain to me what this means? I honestly have no clue…

    1. It’s Andy Samberg, so don’t expect this to make sense.

    2. It probably means his uncle likes Trump

    3. A joke about how everyone has a crazy conservative and/or racist uncle. Y’know, the kind that will not shut up during Thanksgiving or Christmas dinner, making the celebration awkward, blah blah blah.

      1. Ah…ok. He probably should have identified what kind of uncles he was talking about. The way he said it made it sound like he meant ALL uncles. Thanks for the explanation.

    4. My thought was he was referring to “crazy uncles” and inferring (jokingly) that ALL uncles are crazy.

      1. Since I’m not an uncle and will never be one, I’m ok with that inference.

      2. Probably like Drunk Uncle on SNL.

  21. The “ancient and fundamental rule of citizenship by birth within the territory” originated at a time when a “citizen” was in actuality a “subject” of the state. The principle incorporates an affirmation of the individual’s right to protection from the state, but, more importantly, it affirms the state’s right to conscript the services of that individual and tax the fruits of his labor. In essence, birthright citizenship represents the assertion of a state’s ownership of individuals born within its sovereign territory. That does not strike me as a principle that libertarians, as fierce advocates of self ownership, would really want to embrace.

    1. In essence, birthright citizenship represents the assertion of a state’s ownership of individuals born within its sovereign territory. That does not strike me as a principle that libertarians, as fierce advocates of self ownership, would really want to embrace.

      True.

    2. Is anyone really saying that it is a libertarian principle? In the ideal world for libertarians, citizenship shouldn’t be relevant to what you can do and where you can go and wouldn’t really be necessary.

      But in the world we live in, it’s kind of important.

  22. John Eastman at NRO appears to have examined the same original sources as Root and come to a different conclusion. Reasonable people may disagree about Eastman’s notion of “political” versus “territorial” jurisdiction, but as the Trumpinator declared and Rand the Younger somewhat echoed, there remains some legitimate dispute about the meaning of the Ark case as well as the arguments put forth at the time of ratification.

    http://www.nationalreview.com/…..-amendment

  23. Donald Trump is free to believe whatever nonsense he wants.

    And so are you and so am I, but what nonsense will the Supreme Court profess to believe?

  24. A note to Mr. Root, a “Senior Editor”. When the comma is used for items in a list, if the conjunctive “and” is used all items must be present. When the conjunctive “or” is used either/any item may be present.

    Thus, in the explanation , “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons” – the part reading “who are foreigners, aliens” is part of the list and is not modifying that part reading “who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States”. All items in the list modify “persons born in the United States” (who).

    So when read this way your analysis is the unconstitutional analysis.

    1. It is seriously torturing the language to interpret those commas around “aliens” as commas in a list rather than parenthetical commas. And the “or” you interpret as anchoring the list is very clearly conjoining “ambassadors” and “foreign ministers” as the object of the preposition modifying “families”.

      Especially given that “foreigners” and “aliens” are synonymous, which is a more sane reading:

      “…persons born in the United States who are foreigners — aliens — who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States…”

      “…persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors, or foreign ministers accredited to the Government of the United States…”

      1. How could a person born in the United States be a foreigner or alien and not a natural born citizen? You would argue they are only not natural born citizens if they belong to the families of ambassadors, or foreign ministers accredited to the Government of the United States. What about the staffs of embassies and consulates? Are their children born here natural born citizens, or are they foreigners or aliens? What if Princess Kate had her third child here while on vacation, a natural born citizen?

        I have not researched the topic, but it may be a mistake to apply today’s definitions to foreigners and aliens to a speech giver in the 1870’s.

        1. How could a person born in the United States be a foreigner or alien and not a natural born citizen?

          Because they are born to diplomats in the service of their governments and hence alien by convention.

          What about the staffs of embassies and consulates? Are their children born here natural born citizens, or are they foreigners or aliens?

          That depends on whether the parents are recognized as diplomats or employees.

        2. What if Princess Kate had her third child here while on vacation, a natural born citizen?

          I need more data. Tell me what happens if she is accused of shoplifting. That should be definitive.

    2. If it excluded all aliens, why would it be necessary to specifically refer to ambassadors or foreign ministers? Such a reading would exclude children of not only illegal immigrants, but also non-citizen legal immigrants, which is contrary to how citizenship has worked for our entire history, even before the 14th amendment. Critics attacked the amendment on the grounds that it codified the right to citizenship of “undesirable” foreign groups (Chinese, gypsies, etc.) and others noted that the jurisdiction clause was meant to exclude untaxed Indians – an odd remark to make if it also excluded immigrants, who were a much, much larger group than Indians at the time.

      1. A foreigner legally domiciled in the country is under the 14th, subject to the jurisdiction thereof.

  25. Trump is wrong but what you really here from Republicans is changing the 14th so that your mother would have had to be legally in the country to be a citizen.

    This would be in line with most countries in the world…

    Actually, many countries don’t have a birth-right clause… Just being born in many does not make you a citizen.

    Seems to me thinks have changed since 1868, the world is more codified, Nation States are the rule, and it probably is time for such an Amendment to be put in place.

    1. MOST countries don’t have birthright citizenship. Like 160 out of 190. The US and Canada being the only first world countries who do.

      1. It’s an Old World vs New World split. Almost every country in the Americas has it.

  26. the tittle is incorrect it is not unconstitutional to question the constitution other wise why have a supreme court if all questions are answered.

  27. Donald Trump notwithstanding, there are plenty of smart people who are constitutionalists and take the opposite stance. Not sure why we need to “other” them. One is allowed to discuss these things in good faith. “Subject to the jurisdiction thereof” COULD lead one to believe that illegal aliens aren’t included regardless of what the senator said on the floor. The senator may have written the thing but those passing it may have held a different interpretation … and without the language he used in the text, other interpretations can’t be dismissed out of hand.

    Also, I get what you’re saying but Trump’s attack is anything but “unconstitutional”. He may be wrong in his interpretation of the constitution (which is what I imagine you were getting at), but the 1st amendment protects all manner of protests … even uninformed ones regarding the document itself. So just sloppy language used. Try “Donald Trump’s fabulously misinformed attack on the 14th amendment”

    1. I’m sure there are plenty of people arguing against birthright citizenship who are much more worthy of respect than Trump and Sam Hayson.
      But I cannot think of any sense in which illegal immigrants are not subject to the jurisdiction of the US.

      1. Isn’t it blatantly obvious? The reason Obama doesn’t deport them is that they are not subject to his government’s jurisdiction!

      2. “This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction. Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.”

        http://www.nationalreview.com/…..-amendment

        1. Yeah, no.

          Jurisdiction and allegiance are two very different things.

        2. Yes, people can use complicated legal arguments to avoid the plain meaning of the constitution.

          1. You don’t see the distinction he is positing?

            Because I think its a real distinction. Whether the 14A was intended to mean “partial territorial” or “complete political” is a legitimate question. IOW, I’m not sure the meaning is “plain” without assuming the conclusion, or at least winning the argument that they meant “partial territorial”.

            1. Whether the 14A was intended to mean “partial territorial” or “complete political” is a legitimate question.

              Aside from allegiance, this distinction is not at all interesting. Look at the examples:

              He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces…

              Voting and serving on a jury are for citizens, not even permanent legal residents. And whether he can be drafted is entirely up to the government during an extreme wartime emergency, which will not hesitate to draft him if it feels it’s required. It is likely that his claim of allegiance to another government will get him out of such service, but then he’ll probably be asked to leave as an uncooperative alien.

              The relevant margin is allegiance, not jurisdiction.

          2. The plain meaning of phrases in the constitution like “well-regulated”? That term means “controlled by the government” right?

            Root’s take on what the Ark decision meant and exactly what the commas did or did not delineate in the transcript may one day be vindicated by a subsequent court decision. But for now, the operative meaning of “jurisdiction” and the existing case law is not as self-evident as his article would lead one to believe.

        3. Congress also has authority via statute to determine who is under jurisdiction of U.S. laws. They did this with Indians, conferring birthright citizenship on them in 1923. They could easily legislate that children of illegal aliens are not under U.S. jurisdiction and therefore are not citizens.

          1. That would certainly make arresting them exciting!

            Act of war? Or millions of cases originating in the Supreme Court?

            It could be both!

      3. Richard Epstein tied “jurisdiction” to one’s residence based on common law tradition, iirc. So if an illegal alien comes over the border for a couple minutes to have a child it wouldn’t matter if she “lives” in Mexico. Similarly the British tourist y’all are discussing wouldn’t be subject to this either as their “home” is across the Atlantic. A hotel isn’t a “residence”.

        Under this interpretation illegal aliens that have established permanent residency in the U.S. WOULD fall under the 14th amendment’s purpose.

        So, while I’m not sure I agree with him given the reasons you’re discussing, I can SEE how someone might come to a different conclusion and don’t believe anyone’s purpose is served by questioning the motives or intelligence of the other side. Let’s leave that to Trump. All I’m saying.

        1. How can an illegal establish permanent residency when they are at all times subject to deportation?

          1. De facto residency. Where you keep your stuff. He explained it on “The Libertarian” podcast but I don’t remember all of it. It was a few weeks ago at this point. Recommend checking it out.

  28. Given that the laws pertaining to gun ownership, slander, human sacrifice and other religious practices have passed muster with the Supreme Court, I seriously doubt carving out an exception to the 14th would present much of a problem. You might argue that constitutional rights aren’t subject to curtailment, but that ship done sailed before the ink was even dry on it.

    1. I wish to know more about this religion which has gun ownership as a religious practice.

      1. free Anglo-Saxon men were buried with at least one weapon in the pagan tradition, often a seax, but sometimes also with a spear, sword or shield, or a combination of these.

        (From wikipedia)

        You could argue that, as part of funerary-rites, it belonged to the religion. (You could also argue it properly a cultural-construct, but since religion is a part of culture that doesn’t exclude the possibility like you might think.)

        In any case, celebrate your Anglo-Saxon heritage and wear a weapon! 😉

  29. Why not propose an amendment to the Constitution establishing jus sanguinis citizenship? Libertarians already want to repeal the amendment authorizing federal income tax, so it’s not like constitutional amendments are sacrosanct or beyond debate. Jus soli citizenship really doesn’t make sense given how easy it is to travel these days (unlike in 1866). There is, of course, the problem that immigrants, legal or illegal, qualify for all sorts of benefits once they have children in the US, so birthright citizenship in practice allows foreigners to exploit our social safety net. Of course, maybe libertarians would like to see the welfare state bankrupted by letting the world’s poor come here and take advantage of it, but they might be less pleased at the prospect of these poor immigrants having poor citizen babies who will grow up to vote overwhelmingly Democrat and perpetuate welfare and affirmative action at the expense of native-born, economically productive citizens.

    Since these immigrants will form the future polity of this nation, I think it’s important to step back from our ideological blinkers and ask whether our libertarian vision is at all realizable given the kind of people we are giving the vote throughout indiscriminate jus soli citizenship.

  30. Let me wade into this intellectual cluster-fuck.
    I would argue (for the sake of argument) that nobody has a RIGHT to citizenship in the first place. I have a human right to believe in whatever God I choose, to defend my home and community, to speak my mind, to be secure in my home from unreasonable intrusion by government, as examples of things we would mostly agree are human rights. The right to marry whom we chose, to move freely, perhaps, to have children. There are a lot of un-memorialized things we consider human rights that are not in the Constitution. And the Constitution lists them to prohibit infringement, not to grant them.
    That said, my argument continues, that there is no particular right to be a citizen of the country in which your mother happens to drop you from the womb (not the vagina for all you feminists out there complaining about men telling you what to do with it). I realize that is just my opinion and others will disagree. Though I would love to see how you rationalize the “right to citizenship any place you happen to be born in the world.”

    1. This is exactly correct: There is no right to citizenship. There is a right to travel, to residence, to association, and to contract. But no right to citizenship, no right to welfare, no right to vote.

      And certainly the constitution can be amended to change the rules of birth citizenship.

      But the sad fact is that this whole debate exists solely because the people who don’t want birth citizenship don’t believe in the rights of travel, residence, association, and contract.

    2. Children born in a country to citizen parents, i.e. natural born Citizens, do have a natural right to citizenship in that country.

  31. . . . So, if that isn’t a human right, then it is arguably a Constitutional right because of the 14th amendment. But if a right is not a thing granted by government, then the thing granted by government is privilege, not right. Citizenship fits in with privilege better than right in my mind.
    That belief makes much of this discussion mental masturbation, because privileges granted by the “state” are subject to some degree of state qualification. So arguing the state can not put restrictions on who has “birthright citizenship”, is illogical.
    Just a thought.

    1. So arguing the state can not put restrictions on who has “birthright citizenship”, is illogical.

      Of course it can. See Article V of the Constitution.

    2. If we were discussing natural law, I’d agree. Citizenship obviously can’t exist without government and so isn’t a “right”. Therefore the state can put whatever qualifications on it they deem prudent.

      I think most here are arguing that under the state’s qualifications as expressed in the 14th amendment, that the restrictions are limited to diplomats. So it’s a legal argument vice a philosophical one. The state CAN decide who and who isn’t a citizen and their decision WAS that 99.9% of those born here qualify.

      1. That makes sense. I personally figure that the issue of birthright citizenship is granted to all those born within legal jurisdiction of the US, with the specified exception of diplomats. But, many people who insist that the 14th be taken as absolute – and not subject to legislative qualification – are some of the same people who are happy to restrict my 4th amendment right by canine knee-jerk, or gladly put infringements on my right to provide for my defense, or refusal to self-incriminate. All of these are unacceptable legislative or judicial qualifications of actual natural rights in my mind.
        I’d be thrilled if we’d all agreed to quick messing with the bill of rights to suit our personal preferences.

        1. And to the point of the article – attacking Trump’s position – is hypocritical. Trump is saying in effect that there is a compelling social interest in restricting birthright citizenship to those people in the US legally. I don’t think that’s at all a compelling argument but it’s one that virtually EVERY politician and every citizen in this country countenances with it comes to other rights. The 2nd amendment is (personally) a good example. We put vast restrictions and infringements on the right to provide for one’s self-defense, but nobody at Reason is writing articles about how “crazy” or “xenophobic” mainstream politicians and citizens are for dumping all over that natural right.
          The flavor of the week is bash Trump. I get that, it sells clicks, but . . . it’s kinda bullshit, too.

          1. We put vast restrictions and infringements on the right to provide for one’s self-defense, but nobody at Reason is writing articles about how “crazy” or “xenophobic” mainstream politicians and citizens are for dumping all over that natural right.

            Wha?

            I don’t know about you, but “Gun control” is one of the six topics given prominent position at the top of this page.

            1. You’re correct about Reason’s positions on our rights. That’s why I value this site.
              I just meant that people in general don’t get nasty about a person proposing restricting other well-established natural rights when they like the person who is suggesting “compelling social interest” as a justification for putting a saddle on the right.

  32. A-14, Sec-5:
    “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    And, if the Congress defined “birthright citizenship” as to NOT extending to the US born children of Illegal Aliens, that would mean what?

  33. Does anyone believe that the intent of the citizenship clause was intended to address immigrants or was it more likely to address any and all questions forever about the status of emancipated slaves?

  34. 14th amendment be damned. Birthright citizenship sucks.

    I have a lengthy application process for any person or people who would like to coordinate with me and make decisions that obligate me to do and refrain from doing any and all sorts of things. Being born within 2000 miles of me doesn’t really cut it.

  35. Ah yes, let’s quote Conness in defense of a controversial view of the intentions of the law. The very same Conness who LOST HIS SENATE SEAT for that exact reason.

  36. The fifth section of the 14th Amendment states:

    “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    In the 1860s the US had a scarce few laws on the books dealing with immigration and it was almost impossible to be in the country illegally. But one law that was on the books in 1868 (and still is today) is the Alien Enemies Act of 1798. A person who was expelled from this country under this law and found a way to remain on American soil would be in the country illegally. Was the intent of the authors of the 14th Amendment to draft the citizenship clause in such a way that it would preclude Congress from passing a law that would deny automatic birthright citizenship to a child born of two alien parents who are both in the country illegally after being expelled under the Alien Enemies Act?

  37. “…who are foreigners, aliens, who belong to the family of ambassadors or foreign ministers…”
    There are three distinct groups, not one. The comma delineates them as separate. Otherwise it should have been foreign aliens who belong…. And that is precisely NOT what was said or written. It also could have been written “…foreigners; aliens who belong…” and limited the classification to one distinct group.
    Besides, the best way to deal with this within the politcal atmosphere of the day is to deport the parents while observing the precedent of the Elian Gonzales case which gave to the parents the right to determine the disposition of the child. But the parents are illegal aliens and should go. What they do with their child is up to them. Citizenship does not have to be denied to have an effective fix to the problems associated with anchor babies.

    1. Given that foreigners are aliens, it is obvious that this parses as follows:

      “…who are foreigners — aliens — who belong to the family of ambassadors or foreign ministers…”

      1. That is nonsense, Mike. Clearly it parses as three separate categories. Otherwise, you would not have the commas. You would have something like: foreigner or aliens who belong. The commas makes your claim completely false. However, don’t feel bad, Damon Root is just as wrong.

        1. I think the person transcribing the verbal arguments just didn’t here the “or”.

          1. *hear

            Stupid auto correct.

          2. I think the person transcribing the verbal arguments heard the pause before and after “aliens”.

            1. “…who are foreigners, aliens”

              More like, “Who are foreigners? Aliens?” Hahahah… fun with inflection…

              Seriously though, did any of these guys ever define “foreigners” or “aliens”? Seems like there’s a crap ton of wiggle room if not.

        2. The way you are parsing it, there needs to be a comma after “ambassadors”, so “who belong to the family of ambassadors” becomes a parenthetical of aliens.

          But then that leaves one to wonder what the state of the family of foreign ministers is and why they’re treated differently from the family of ambassadors.

  38. In all the history quoted in the story, I believe they only considered legal aliens.

    If we still hold to the belief that words mean what they say, then the words “resident alien” in the Supreme Court case means someone who enters the country legally. Illegal aliens have no birthright citizenship.

    Looked up the definition of “resident alien” here, http://dictionary.reference.co…..ent+alien. Got the following definitions:
    1. an alien who has legally established residence in the U.S.
    2. an alien who has legally entered the U.S. as an immigrant with the intention of becoming a citizen.

  39. Yah, if they want to change birthright citizenship then they need to amend the constitution. Really, they ought to stop lying to people about how easy this is to do – why not make it an actual referendum on the issue, then regardless of the result they can put it down later and move on to something that’s actually productive…

    Oh right, these are politicians… I forgot.

  40. Isn’t it interesting that in the hemisphere with a tradition of birthright citizenship, immigration is mostly a problem only in the fevered racist imaginations of assholes. Where blood citizenship is the norm, there seem to be real problems associated with the movement of people. Maybe there’s some sort of virtue in making babies born in the same territory inherently equal regardless of any other differences they have.

    1. What are you on about? Are you seriously arguing that immigration is not a problem in the US? There are no schools or hospitals or other public services overwhelmed and bankrupted by having to care for mostly poor immigrants and their children when they were originally designed for far richer populations? Also, you know, the jus sanguinis Europeans invented Schengen. So basically your claims fall flat on all counts. Thanks for trying!

  41. Did Mr. Root read over his own text? “What does it mean to be “subject to the jurisdiction” of the United States? Howard supplied an answer. The Citizenship Clause, he explained on the Senate floor, “will not, of course, include persons born in the United States who are foreigners, aliens”

    There is a part in there about foreigners and aliens. What do you call a person of foreign descent that comes here illegal and has a baby. How is that person not a foreigner or an alien? Explanation please.

    1. That was a transcript of a speech, so it’s understandable that the syntax is unclear. Who knows whether Howard meant “foreigners and aliens who happen to be diplomats or foreign officers (but not other foreigners and aliens)” or rather “foreigners and aliens as well as diplomats and foreign officers (who are also foreigners but whatever)”? A better argument would be to cite Elk vs Wilkins 1884, where a distinction was made between partial, territorial jurisdiction (i.e. subject to the laws and liable for prosecution if you break them) and complete, political jurisdiction (allegiance to the government, eligibility to vote, serve on juries etc).

      http://www.nationalreview.com/…..-amendment

      This shows that the meaning of “jurisdiction” in the 14th amendment is not in fact as straightforward as Root and others make out. Congress could pass a law clarifying that parents needed to be under the full, political jurisdiction of the US in order for their children to claim citizenship by birth. I’m sure that law would be challenged and the courts would finally clarify what on earth “jurisdiction” means for citizenship purposes, but until then it’s an open question.

    2. That was a transcript of a speech, so it’s understandable that the syntax is unclear. Who knows whether Howard meant “foreigners and aliens who happen to be diplomats or foreign officers (but not other foreigners and aliens)” or rather “foreigners and aliens as well as diplomats and foreign officers (who are also foreigners but whatever)”? A better argument would be to cite Elk vs Wilkins 1884, where a distinction was made between partial, territorial jurisdiction (i.e. subject to the laws and liable for prosecution if you break them) and complete, political jurisdiction (allegiance to the government, eligibility to vote, serve on juries etc).

      http://www.nationalreview.com/…..-amendment

      This shows that the meaning of “jurisdiction” in the 14th amendment is not in fact as straightforward as Root and others make out. Congress could pass a law clarifying that parents needed to be under the full, political jurisdiction of the US in order for their children to claim citizenship by birth. I’m sure that law would be challenged and the courts would finally clarify what on earth “jurisdiction” means for citizenship purposes, but until then it’s an open question.

  42. Trump is a classic protectionist. Instead of cutting welfare (because you know that shit ain’t popular), ignore the actual root of the problem and go after immigrants.

    1. I agree with this basically. But isn’t it interesting how much more popular some aspects of the libertarian program are with the progressive commentariat (legal drugs, open borders), than others (free market, no welfare)? I’m concerned about the effects of just achieving one part of the program without fixing the others, and I’m afraid that opening the borders without first dismantling the welfare state will be worse for our citizens than Trump’s proposal to crack down on immigration without touching welfare.

      1. Those good things changed precisely because of the LP. That is the case for voting libertarian. You have to have integrity to change laws for the better, but we could prioritize the platform to take what we can get when we can get it. This is a good time to go for repeal of the personal income tax. It is a violation of individual rights. Corporations are artificial people, not liable to prison or death penalties. I would like to deal with DBAs, not corporations. Someday, after that is accomplished, I would go for more. Democratic gradualism works and is an excellent alternative to blowing stuff up.

        1. I don’t really understand what you’re talking about, sorry. Are you agreeing with me or not?

      2. But there really is no justification for closed borders at all.

        So? Starve the beast., and count on the rising number of Hispanic conservatives and libertarians to help in that process. Illegal immigrants pay taxes, and do not draw from public programs, even the ones they are eligible for. In some cases, legal immigrants are forced to wait up to 130 years in many cases to immigrate to the US, even if they already have existing relatives. Immigration restrictions are more tyrannical than the perceived “mooching” that immigrants do.

        http://latinopoliticsblog.com/…..lifetimes/

        http://usatoday30.usatoday.com…..axes_N.htm

        1. If you could frame this in a way that better shows the benefits of open borders to current citizens, that would be nice. Too often the open borders fanatics frame it terms of the rights or needs of foreigners, to which I think the sensible response is that the welfare of foreigners is not the responsibility of the US government. There is a case to be made, I’m sure, that opening our borders and letting market forces manage immigration will, in the long-run at least, benefit our citizens, but that’s how you have to frame it if you want any hope of winning over Trump’s supporters.

  43. More goddam Trump? Izzis a remake of the Ross Perot campaign? He’s already signed the God’s Own Party agreement to not run as a libertarian, and he sure as hell ain’t getting that machine’s nomination, so he’s history. So… is Reason gonna keep being the Trump n Bernie Show and completely forget about real non-sclerotic political parties?

    1. Maybe we can run Trump as a libertarian and hope enough third party and independent votes go to him to break the 5% point. Pragmatism over principle, I’d say.

  44. It has always amazed me that some people believe that something legal can come of an illegal action. Trump (unfortunately) is right. It is the liberal mindset that believes that just being born here conveys citizenship. No other educated civilization see citizenship this way. That is why the constitutional framers believed that the President had to be born with both parents being US citizens. Not one. Not none. BUT BOTH.

    1. Where does the Constitution say that the President must be born of two citizens? I know it says the president must be born in the US, but not that both parents must be citizens.

      I agree with you that it doesn’t seem right to let the children of illegal immigrants earn citizenship simply because they were born here, given that one important function of immigration restriction is to manage our demographic future. Whether it’s better to let government bureaucracy or the market manage that future is, of course, another question.

  45. Nah. You’re on the wrong side of history, loser! The constitution is a living document that means whatever Justice Kennedy thinks it means. Heck, he even thinks it mandates that states recognize gay marriage! Forget sticking to the text and history, just do whatever feels good! Anchor babies away!

    1. There’s been a worrying trend in recent libertarianism of cheering on every expansion of the federal government, especially its judicial power, as long as such expansion promotes “personal freedom”. To a degree that is not surprising; libertarians in the past have famously questioned the benefits of democracy. But there’s a fine line between restraining full democracy in order to protect minority rights and simply imposing the minority’s will on the majority.

  46. In what practical sense can a baby be subject to the jurisdiction of a country, whether we take “jurisdiction” to mean something to do with “authority to apply the law” or “allegiance to a country”? Babies can’t break the law and babies can’t pledge allegiance to anyone!

    So why do people make arguments of the form, “foreigners who break the law in the U.S. are subject to U.S. laws, therefore they’re subject to U.S. jurisdiction as per the 14th amendment”?

    Obviously people are referring to foreign PARENTS who may or may not be subject to U.S. jurisdiction, and then are using that as a proxy for the child.

    Where is there ANY indication that a parent’s subjection to law or allegiance to a country transfers to their child? It doesn’t say so in the Constitution and I can’t find any references to anyone ever making such a claim.

    If this transfer of jurisdiction isn’t made explicit anywhere then it shouldn’t be assumed. If it isn’t assumed then any discussion of foreign parents being subject to U.S. jurisdiction is completely irrelevant!

    1. Where is there ANY indication that a parent’s subjection to law or allegiance to a country transfers to their child? It doesn’t say so in the Constitution and I can’t find any references to anyone ever making such a claim.

      Well, you can read Wong Kim Ark for plenty of such indications descending from English Common Law. For example:

      “By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

      1. The phrase “or merely temporarily sojourning” does seem relevant here, at least a propos of arguments that aliens here on temporary or tourist visas should be excluded from full jurisdiction along with illegal residents.

        A problem with all this appeal to ancient legal precedent, however, is that nobody extends this argument to all aspects of ancient law. Nobody is proposing we reinstate hanging, drawing and quartering as a penalty for treason, for example. Sensible arguments should address the circumstances we face today and not try to apply solutions appropriate for past eras to today’s problems. A liberal policy towards immigration, for instance, makes a lot of sense in a time when long-distance travel is prohibitively expensive or arduous for most people, making mass immigration a non-issue. Once modern transportation facilitates mass movement, suddenly we have to confront the effects of mass immigration and all its social consequences.

      2. Hmmm I don’t think so. That quotation really doesn’t imply that a parent’s subjection to law or allegiance transfers to their child.

        In fact, it says that a child born within the dominions of the Crown, with foreign parents “temporarily sojourning” in the country, is an English subject. Foreign parents who are temporarily sojourning in England don’t have any allegiance to the Crown nor are they English subjects… yet their children are. Given that subjecthood is essentially equated with allegiance to the Crown later on in the court opinion, that means the parents have a DIFFERENT allegiance than their child. That means the parents’ allegiance does NOT transfer to the child.

        1. Sorry, I didn’t understand your argument. I thought you were saying that jurisdiction doesn’t accrue to the child at all rather than that jurisdiction doesn’t accrue to the child through the parents.

          On that latter question, Wong Kim Ark quotes Grant’s Secretary of State, who agrees with it:

          “The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.”

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  49. Illegal immigrants are not “subject to the jurisdiction thereof” but to the jurisdiction in which they have last legally been domiciled by the consent of that state. Wong Kim Ark: Citizenship is granted by consent, not birth, the judge said. The family had been legally domiciled in the USA and that was the reason he became American at birth. My grandparents were legally domiciled in the USA at the time of my father’s and aunt’s births. They had permanent resident status. That’s why they were citizens at birth, due to consent of the host country.

  50. From the SCOTUS case majority opinion (United States v. Wong Kim Ark (No. 18); Argued: March 5, 8, 1897; Decided: March 28, 1898: [http://bit.ly/1MtAHyZ]

    “The Chief Justice first laid down the general principle:

    The jurisdiction of the nation within its own territory is [p684] necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory….” et passim

    1. Indeed, that is the dark side of Wong Kim Ark: the Supreme Court invented out of whole cloth a federal power over immigration that the Constitution did not enumerate. Very Progressive of them, even if they reached back into common law to divine it.

      But that only solidifies the Court’s argument that the 14th intends and provides birthright citizenship.

      1. What about Article I, Section 9, first clause?

        “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

        This allows Congress power over immigration from 1808 onwards, and also presumes state power over immigration before that date and presumably after it as well. Sorry, but the argument that somehow the constitution does not allow Congress jurisdiction over immigration is particularly weak, and even if the federal government did not have jurisdiction, then the states would.

        1. This allows Congress power over immigration from 1808 onwards, and also presumes state power over immigration before that date and presumably after it as well.

          No, it doesn’t. Everyone at that time and in every time since knows this clause is entirely about migrating or importing slaves. If this was actually a general power given to Congress, then it would have been in Section 8, which enumerates what Congress can do, not Section 9, which enumerates what Congress can’t do.

          …even if the federal government did not have jurisdiction, then the states would.

          Indeed.

          And all this isn’t to say that an amendment that actually grants Congress power over immigration wouldn’t be unanimously ratified. But the government would have to start behaving constitutionally in general for this to happen.

          1. Well if you support giving the states power over immigration, I guess I don’t have a problem with that. What’s important is that, at some level or other, people need to be able to control who comes into their communities. Making that power more local is fine with me. The Constitution does explicitly give states power to tax and control imports, so there’s no reason that can’t apply to immigrants as well.

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  52. “The text and history of the 14th Amendment are clear on this point: If a child is born on U.S. soil, and that child’s parents don’t happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.”

    There was a time when “Indians not taxed” were also included in this list as well. In fact, the 14th Amendment only applies to those who are “stateless”, which is why Justice Horace Gray saw diplomats, foreign ministers, or invading foreign troops as exceptions to the 14th Amendment as well, nor can it apply to the offspring born here of illegal aliens, as they are subject to a foreign sovereignty as well.

    1. By this logic, it cannot apply to the offspring born here of legal aliens either, as they too are subject to a foreign sovereignty.

      And let’s not talk of parents with dual citizenship.

  53. If you don’t like the XIVth amendment, then change it, but don’t claim it doesn’t mean what it clearly says! There seem to be a lot of “conservatives” who are perfectly fine with creative interpretation when it comes to birthright citizenship, but who are outraged when the left does the same thing with the Second Amendment, or the non-Establishment clause.

  54. There is one most important aspect missing. This 14th Amendment was in fact making ‘citizens’ of the former ‘black population’…and their future generations through Congressional and constitutional enactment. This was enacted following the Civil War and ratified July 28, 1868. It did not give foreigners or illegal aliens citizenship , or special rights…nor did it give person-hood to a corporation.

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