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A Bad Argument on Birthright Citizenship (Updated)

A former Trump advisor thinks an Executive Order could end birthright citizenship. A federal judge appointed by President Trump explains why he's wrong.

Michael Anton is best known for penning the infamous, pseudonymous "Flight 93 Election" essay justifying conservative support for Donald Trump. After the 2016 election, Anton briefly joined the Trump Administration as a national security advisor. Now Anton is a research fellow at Hillsdale College and aspiring pundit.

In a recent Washington Post op-ed, Anton takes issue with birthright citizenship -- the principle that those born within this country are citizens of the United States -- and argues that President Trump could unilaterally end the practice of recognizing the citizenship of children born to illegal immigrants on U.S. soil. He is wrong on both counts -- as one of Trump's own judicial appointees would be happy to explain.

The Fourteenth Amendment provides, in relevant part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . ." According to Anton,

the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. . . . The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don't.

Whatever Anton believes the Fourteenth Amendment "clearly" does or does not provide for, scholars who have examined the history have largely reached the opposite conclusion. Among those who have researched the subject is James Ho, former Texas Solicitor General and Counsel to the Senate Judicairy Committee, now a judge on the U.S. Court of Appeals for the Fifth Circuit appointed by President Trump.

As Ho explained in this 2007 op-ed the argument that the "subject to the jurisdiction thereof" language of the 14th Amendment excludes those born in the U.S. to illegal immigrants is based upon a faulty interpretation.

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship — but no one disputed the amendment's meaning. Opponents conceded — indeed, warned — that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

Anton's arguments to the contrary are based upon a selective (mis)reading of the relevant debates. The language "subject to the jurisdiction thereof" does not exclude the children of illegal immigrants, but those of foreign diplomats and the like. The former, whether they arrived here lawfully or overstayed a visa, are obligated to comply with U.S. law. The latter are not.

As Ho noted in another op-ed, the Supreme Court has repeatedly reaffirmed this understanding of birthright citizenship.

In 1898, the court held that a U.S.-born child of Chinese immigrants was entitled to citizenship. In United States v. Wong Kim Ark, it held that the "14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens."

The court reiterated this view in Plyler v. Doe (1982). The majority held—and the dissent agreed—that the 14th Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of illegal aliens. Likewise, in INS v. Rios-Pineda(1985), the court again unanimously agreed that a child born to an undocumented immigrant was in fact a U.S. citizen.

"The court has ruled only that children of legal residents are citizens," Anton claims, citing Wong Kim Ark, ignoring plain statements in subsequent cases making clear the "subject to the jurisdiction thereof" langauge applies to legal and illegal immigrants alike. (For a more complete explanation of the actual meaning of this clause, see this longer Green Bag article by Ho on the subject.)

Undeterred, Anton argues that Congress retains the power to deny citizenship to those born in U.S. territory to unlawful immigrants. Further, Anton maintains that if Congress won't act, the President can simply refuse to recognize the citizenship of such individuals by Executive Order, courts be damned.

Anton ends his piece: "Judges faithful to their oaths will have no choice but to agree" with a presidential decree refusing to recognize birthright citizenship. At least one federal judge -- a judge appointed by President Trump no less -- would beg to disagree.

UPDATE: Michael Anton responds to his critics here, largely focusing on the arguments in this piece by Garrett Epps. Daniel Drezner discusses Anton's argument and defense here.

Some readers point to this article by Peter Schuck and Rogers Smith in National Affairs, in which they argue:

Under the best reading of the Citizenship Clause of the 14th Amendment, the citizenship status of the American-born children of illegal immigrants is not mandated by the Constitution. Rather, this clause empowers Congress to decide the matter in its policy discretion (so long as it does not violate other constitutional rights), thereby giving specific content to the principle of popular consent — perhaps the fundamental principle of American democracy — that the clause adopted.

This is a serious argument (albeit I'm not convinced). To oversimplify a bit, their argument is that because the clause extends citizenship extends to those "subject to U.S. jurisdiction," Congress has some ability to define whether different classes of aliens qualify. Even assuming this argument is correct, note that Anton's argument extends far beyond what Schuck and Smith claim. Whereas Schuck and Smith claim the matter is reserved to Congress, Anton claims that the 14th Amendment actually excludes the children of unlawfully present aliens and that the President can unilaterally adopt this view.

For more on the debate about the meaning of the citizenship clause of the Fourteenth Amendment, here's a podcast debate between James Ho and the Chapman University Law Professor John Eastman.

UPDATE: Check out this Language Log post by Neal Goldfarb or a deep linguistic dive into how we should understand Sen. Jacob Howard's comments during the congressional debate over the Fourteenth Amendment. (Spoiler Alert: It doesn't help Anton's case.)

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  • bernard11||

    The only real issue here is why an idiot like Anton has a job as a research fellow at a college, and is granted space on the WaPo editorial page.

  • santamonica811||

    Any time someone makes a dopey argument that the Constitution "clearly" says something, where judges and law profs say the opposite (or even where opinion is quite divided), you know that you can ignore that person in the future, since (a) the guy/girl is not well-informed, and (b) this person does not understand the meaning of "clearly."

    This is a non-partisan point. If someone says, "Assault rifles are clearly outside the protection of the Second Amendment." (Or "Assault rifles are clearly protected by the Second Amendment."), they automatically would go into my mental "ignore henceforth" file.

  • Chem_Geek||

    So-called "assault rifles" are clearly arms, and clearly protected by the Second Amendment. Haven't you been paying attention?

  • santamonica811||

    I can't tell if this was tongue-in-cheek (in which case, very nicely played), or, if you're just inadvertently making my point. Damn the internet and the lack of subtext clues.

  • Brett Bellmore||

    It's not a symmetrical situation between "clearly outside" and "clearly inside", in the case of 'assault' rifles, as you can make very strong originalist arguments for the latter, while the former is dependent more on political elites just rejecting the arguments because they don't like the conclusion.

    Indeed, I think they ARE clearly inside the protection of the 2nd amendment, as intended by the generation that ratified it. Good luck convincing a critical mass of modern politicians in black robes, though.

  • James Pollock||

    Whereas I think they are partially within the 2A, and not at all because of the intention of the authors of the 2A.
    The 2A is just not well-written. Clearly.

  • ||

    It's very well written. Leftists like yourself just don't like it.

  • James Pollock||

    "It's very well written"

    Ah. So you LIKE the fact that it has the words "well-regulated" in it.

    "Leftists like yourself"

    An odd way to say "non-leftist", but whatever. Leftists like myself are a lot like leftists like yourself. Hint: The fact that you are worthy of contempt in no way implies that leftist twits are not also. They just have different default insults they throw at anyone who points out their stupidities.

    "just don't like it"
    It's poorly drafted, and I don't like THAT. If it were nice and clear, like, say, the Third, then you wouldn't have a couple of hundred years' worth of people arguingabout what it means.
    You can pretend you're a fan of the 2A, but you're really only a fan of half of it.

  • ||

    Anyone who trots out the "well-regulated" clause as proof that the government can regulate it is a liar or a moron. Which are you?

  • James Pollock||

    "Anyone who trots out the "well-regulated" clause as proof that the government can regulate i"

    Anyone who thinks the government can't regulate it has opinions that are not worth further consideration.

  • Dan S.||

    The Second Amendment is not well written because of the extra commas it contains. Any attempt to interpret it properly has to start by ignoring the commas after "militia" and "arms" and simply pretending they are not there. One theory says they weren't supposed to be there at all, that stray drops of ink on a draft copy were taken as commas and rendered as such on the final copy. I guess we'll never know. But the 14th Amendment provision about birthright citizenship is quite clear. Yes, children born here to illegal immigrants are citizens.

  • Shosei||

    Personally, I would argue that the 2nd Amendment as originally envisioned also applies to automatic rifles, rocket launchers, howitzers, and other larger arms as well. Perhaps acknowledging this would nudge people into actually debating the purpose and reasoning of the 2nd Amendment rather than debating syntax and wording. If we come up with a new amendment to clarify the 2nd, so much the better.

  • Pettifogger||

    Probably so, but one side would clearly want to protect AR 15-like weapons, and the other would want as much room as possible to ban them. Good luck getting agreement on new wording.

    It's no longer a question of people of good will disagreeing about the best means to an agreed end. It's rather a question of who can fool whom and get their way.

  • ||

    The left wouldn't stop at AR15s. They'd want to ban all of them. While of course making sure that the "right" to kill babies and have gay buttsex is codified.

  • James Pollock||

    "The left wouldn't stop at AR15s. They'd want to ban all of them."

    Someday, I suspect you're going to find out the hard way that a significant portion of "the left" have their own AR15s, and don't need yours. The look of surprise on your face will be exquisite, although very brief.

  • James Pollock||

    I think ordinary principles of freedom apply to automatic rifles, rocket launchers, howitzers and other larger arms as well, and probably would have been better off as an unenumerated right, like the right to travel freely, or the rights of closeted right-wing patriots to have as much homosexual butt-sex with each other as they want as long as they aren't doing it in the street and frightening horses and small children.

  • EscherEnigma||

    The generation that ratified it didn't intend for or to be applied to it limit states, only the Fed.

    Incorporation makes originalism moot.

  • James Pollock||

    A process for amendment makes originalism moot. That, plus ineffective methods of seance.

  • M.L.||

    I disagree. The mere fact that some law profs and judges take a position, does not necessarily mean that such position isn't clearly wrong.

    I appreciate that your comment would, I think, stipulate that many scholars such as Larry Tribe and Cass Sunstein should be ignored, are not well-informed, and don't understand words, since their Constitutional views are often stated in self-assured terms. And perhaps that is the case to some extent, although I think opinionated advocacy eclipsing academic integrity plays a bigger role. Regardless, I understand where you're coming from but I think your categorical statement is "clearly" incorrect (if it were stated in probabilistic terms then I might agree).

  • santamonica811||

    ML,
    That's a fair criticism of my comment.

  • nonzenze||

    Kind of raises the question why you comment here at all :-P

  • Voize of Reazon||

    This has the makings of a drinking game.
    Mutterings of "... clearly ..." or " ... obviously ... " are to be followed by shouts of "CHUG!'

  • James Pollock||

    When I was a 1L, and took legal writing class, we were told to avoid "clearly"... if it WAS clear, we didn't need to tell people it was clear, and if it wasn't clear, calling it clear doesn't make it so.
    The next year, working on the law-review, I started to learn just how many people never got this advice when THEY were in law school.

  • santamonica811||

    Exactly. I cannot tell you how many times I have seen lawyers use "clearly" in court when the issue was very much in dispute. This I can excuse a bit, since lawyers are speaking without notes. But I also have seen it used dozens and dozens and dozens of times in appellate briefs, and there--when it's used with careful consideration--I have no sympathy for such sloppiness.

  • James Pollock||

    "-I have no sympathy for such sloppiness."

    Clearly.

  • Voize of Reazon||

    I am drinking as I read this.

  • santamonica811||

    James,
    Heh.

  • Chem_Geek||

    It's Hillsdale; this sort of lunacy is their stock in trade.

  • Rev. Arthur L. Kirkland||

    The only real issue here is why an idiot like Anton has a job as a research fellow at a college

    Relax -- it's just Hillsdale.

  • M.L.||

    Rest assured, he's not idiot, and you are much closer to being an idiot than he is.

  • DjDiverDan||

    Amazing. A point on which I agree with bernard11. That is an incredibly rare occurrence.

    The only thing which this Op-Ed by Anton "clearly" proves is that there is derangement on both ends of the political spectrum. Trump's mere existence (and his residence at 1600 Pennsylvania in D.C.) makes the political left so crazy that they are incapable of rational thought. Apparently the existence of 7 million illegal aliens (or whatever the number is; I don't care so I'm not going to try and research the issue) on U.S. soil has the same effect on some on the right, including Anton. Crazy people should not be given megaphones to publish their craziness, whether it is Whoopi Goldberg, Joy Behar or Maxine Waters (among oh so many others) on the left, or Michael Anton (and many others deranged by illegal immigration, or the alleged threat of the Chinese selling us goods at prices that please American consumers) on the right.

  • M.L.||

    There is nothing deranged about Anton or his argument here, even if he could have made his case better. Read the rest of the thread to become better informed.

    In fact, the deranged position here is to suggest that there's no debate to had on this question. I have come to place a pretty high amount of trust in what Adler writes. This is a very rare dubious post by him.

  • TheAmazingEmu||

    There's nothing to debate here because there's no merit to the argument. This has been well-settled for over 120 years and everyone agreed since the drafting of the amendment what it meant. It's only people who don't like the results of the amendment that have suggested there is doubt.

  • James Pollock||

    "Trump's mere existence (and his residence at 1600 Pennsylvania in D.C.) makes the political left so crazy that they are incapable of rational thought."

    That's an overstatement.
    There's a bit of that, but it's thoroughly mixed in with outrage, real and feigned, at the willingness of Mr. T to try to wing it while doing the most important job in the world.
    Plus, there's a certain amount of "why can't the Trumpistas see that he's lying right to their faces?" astonishment, but that's not directed at Trump, but at the fan club.

    Meh. Seems fair tit-for-tat for the way the right reacted to the words "President" and "Obama" being used together. He did start out knowing what he was doing, either, but at least he took the job seriously.

  • Brett Bellmore||

    "Infamous"? I'd heard of that essay before, never read it, but it's only the last couple of days I've heard anybody refer to it as "infamous". I suspect it's "infamous" only among a fairly small circle of people. Based on the couple of people I've seen describe it that way, maybe the group is defined by TDS.

    Anyway, yeah, not a very good argument, certainly not originalist. But not very good arguments without any originalist basis prevail all the time at the Supreme court. Worse arguments than this one, in fact, far worse.

    If the Supreme court WANTED to end birthright citizenship for anchor babies, I don't think they'd find Anton's argument hard to swallow at all.

    But, of course, they likely don't want to. So even a good argument would have tough sledding.

    Personally, I'd favor an amendment to specify that birthright citizenship was not available to the children of tourists, illegal immigrants, and invading armies.

  • Rev. Arthur L. Kirkland||

    Thanks for taking time from researching Obama's birth certificate to bring us more "libertarian" insights, Mr. Bellmore.

  • VinniUSMC||

    Thanks for taking the time from doing... (what is it that you do? Nothing that requires much thought I suspect) to bring us your copypasta insights, Artie. We look forward to, yet again, reading the exact same reason-free, logic-free, insight-free, ad nauseam word vomit from your next posting.

  • Rev. Arthur L. Kirkland||

    Shouldn't you be out continuing to do your part to make sure the American military doesn't win a war for another 75 years?

  • Rev. Arthur L. Kirkland||

    I doubt you would like my substantive contributions any better, you half-educated, right-wing rube:


    America has encountered successive waves of ignorance and intolerance -- often associated with skin color, religion, immigration, or perceived economic pressure -- throughout its run. Those targeted -- hated, feared, demonized, discriminated against -- have included Hispanics, Jews, Italians, blacks, agnostics, gays, the Irish, eastern Europeans, Asians, atheists, women, Catholics, and others.

    Intolerance and ignorance have been bad bets in America over all but the shorter terms, however, and this latest batch of bigots seems nothing special, its reliance on the charms, insights, and effectiveness of Donald Trump notwithstanding.

    America's way has been progress and improvement, forged during our most recent half-century by our liberal-libertarian alliance, against the wishes and efforts of the conservative-Republican electoral coalition. I expect that course to continue. American culture has withstood egg rolls, tacos, Liberace, bagels, race music, sushi, Santana, pierogis, Rosa Parks, Friday fish frys, Susan B. Anthony, bingo, and Jameson whiskey, and James Jamerson. Tacos, egg rolls, fried fish, and pierogis sounds like the menu of an average American diner.

    America will continue to improve, making right-wingers such as Mr. Anton sad and increasingly disaffected.

    Carry on, clingers.

  • M.L.||

    Don't base your assessment on Adler's incomplete summary of the issue here. There is absolutely a good originalist argument that "birthright citizenship" isn't constitutionally required, and it's the better originalist argument in my view.

  • Voize of Reazon||

    Would that be Justice Taney's argument in Dred Scott?

  • James Pollock||

    That, plus the way they treated the Natives.

  • y81||

    I believe it is generally agreed that birthright citizenship would not apply to children of invading soldiers, since they are not "subject to the jurisdiction" of the United States. For a more useful discussion of this issue than Prof. Adler's, with citations for those who want to explore the issue still further, see http://www.becker-posner-blog......sner.html.

  • James Pollock||

    "Invading soldiers" tend to be all male, with very few births among them.

  • James Pollock||

    The real question is, if Mr. Anton believes that children of illegal immigrants and not subject to the jurisdiction of the United States, then how is capturing them, detaining them, and deporting them not a gross violation of their rights?

  • Brett Bellmore||

    His argument does rest on "subject to the jurisdiction of", and "subject to the laws of" not being the same. It isn't a great argument, but it does anticipate that objection.

  • Life of Brian||

    if Mr. Anton believes that children of illegal immigrants [are] not subject to the jurisdiction of the United States, then how is capturing them, detaining them, and deporting them not a gross violation of their rights?

    A gross violation of what rights, under what laws of what country? Your argument seems circular.

  • James Pollock||

    The Constitution grants a number of rights to "all persons", not just "all citizens" or "all lawful entrants". You should give it a read sometime.

  • Phanatic||

    Anton's just wrong, but so are you.

    Enemy soldiers (to use the other example given) aren't subject to the jurisdiction of the United States, but they could certainly be captured, detained, and repatriated without violating their rights.

  • James Pollock||

    "Enemy soldiers (to use the other example given) aren't subject to the jurisdiction of the United States,"

    Really? What happened to the Nazi soldiers who invaded the U.S. Were they immune from trial? (Hint: no.)

  • jph12||

    I don't remember us capturing any Nazi soldiers invading the US. We did capture some Nazi spies, but they were tried by military tribunals, which isn't really the same thing (think Ex Parte Milligan) and mostly executed.

  • James Pollock||

    You may not remember it.

    http://www.historynet.com/nazi.....-court.htm

    They came ashore in uniform.

  • Alpheus W Drinkwater||

    Besides that, we held many U-Boat crews that were captured in US waters, or came ashore in the US. My mother grew up in Rehoboth, Delaware, and there was a detention center for captured U-Boat crews there. They were mainly just young kids, and my grandfather felt bad for them and occasionally brought them to his house for dinner.

  • santamonica811||

    Alpheus,
    Really. We could bring detainees home for dinner??? That is sort of an amazing story...how was this allowed by the people doing the actual, um, detaining?

  • jph12||

    No, that's one of the incidents I was thinking of. Once they discarded their uniforms they were no longer considered soldiers. As the article notes:

    "An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law," Chief Justice Stone wrote. The prisoners had no right to civilian trial, he explained, because the acts they were charged with as enemies operating under orders to destroy wartime infrastructure were violations of the law of war that military tribunals are set up to adjudicate.

    To the defense attorneys' claim that their clients should not be considered unlawful enemy combatants, the court held, in Chief Justice Stone's words, "Those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission."

  • M.L.||

    The authors of the 14th amendment stated on the record that "subject to the jurisdiction of" meant "owing primary allegiance to."

  • James Pollock||

    They left it out of the text that was ratified. Oops.

  • M.L.||

    No, it's right there in the text. "All persons born or naturalized in the United States and subject to the jurisdiction thereof.."

    You are simply wrong in your thinking about what those words mean, and laughably so. It's not even close.

  • James Pollock||

    "You are simply wrong in your thinking about what those words mean, and laughably so"

    Or, and I'm just throwing this out there for completeness' sake. You are.

    It's probably one or the other. Wonder which one? Guess we'll never know, unless, someday a court case comes up where these words get interpreted. Until then...

  • Calidissident||

    That doesn't mean what you think it means. Trumbull (who I assume you are referring to) was explicitly talking about Native Americans living in tribes that were not subject to US laws, could not be sued in court, etc. when he made that comment.

    During the debate over the 14th Amendment, an opponent asked Trumbull if it would mean automatic citizenship for the children of Chinese and Gypsy immigrants (who themselves were not eligible for naturalization in those days) and he explicitly confirmed that it would.

  • M.L.||

    Well, I think it's agreed that the children of legal residents are granted citizenship by the clause, regardless of naturalization. But someone who is present illegally is hardly owing allegiance, same for tourists.

  • Calidissident||

    There was no such thing as illegal immigration in the US at the time so it would seem very strange if they were making this conditional on the parents' allegiance that was dependent on whether they were in the country legally. Also, Anton does not agree with your assumption in the first sentence. Again, Trumbull's quote specifically references not being able to sue a Native American in court, them not being subject to US laws, etc. You can sue an illegal immigrant or a tourist in court and they are fully subject to US laws. And the supreme court held a child of tourists was a citizen in 1844, even before the 14th amendment.

    Howard's quote, which Anton distorted into saying it excluded all foreigners, actually describes diplomats that are not (along with their families) subject to US law, and then explicitly states all other classes of persons are.

  • M.L.||

    Like everything else in the Constitution, there is a statement of a general rule intended to elucidate a principle, which is then applied to particular facts and circumstances as they arise.

    Trumbull addressed some example cases, but more importantly he clarified that the clause meant "complete jurisdiction" and "complete allegiance" with no other allegiance. Howard stated "I concur entirely" with Trumbull, and that "a full and complete jurisdiction" means "the same jurisdiction in extent and quality as applies to every citizen of the United States now" (which implicates things that Congress has the authority to define).

    Despite Howard omitting any conjunction (either disjunctive or conjunctive) in the statement you are referencing, in context he was listing categories beyond just diplomats, otherwise the much more general discussion would have been entirely frivolous.

    Nowhere in the op-ed does Anton say he disagrees with Wong. He merely points out that the actual holding applied to lawful, permanent residents. Not tourists or persons illegally present.

    The record definitely seems to support the idea that the original meaning was not to guarantee citizenship for every person passing a birth canal on US soil, except only for diplomats and Native Americans.

  • MBmb||

    What about legal principles like "fruit of the poisonous tree". It is unseemly to profit in such a blatant manner from law-breaking, especially when this profit was the main intended goal of the law-breaking.
    It is one thing for you to kill your rich uncle by accident and inherit him, quite another for you to assassinate your brother so that you and your children can grab his fortune.
    In this case, gaining the US citizenship for themselves and for their children seems one of the main benefits these people are after when they cross the border illegally, so it seems logical that they should be deprived of it. It would seem fitting that, their US presence being illegal, all benefits that accrue from it and that they are seeking should be denied them, as if they never were present in the US.
    Unfortunately, I guess law and logic have little to do with one another.

  • apedad||

    OK, first, the legal principle of "fruit of the poisonous tree" is the doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained--BY COPS.

    You meant ill-gotten gains.

    Second, the child who receives U.S. citizenship based on jus soli didn't do anything illegal, so why should they be deprived of anything.

    We can have a discussion about anchor babies and how illegal family members should be treated but you started off on the wrong foot.

  • MBmb||

    Knowingly profiting from a crime is also illegal, see the crimes of "fencing" and "possession of stolen goods".
    One doesn't always have to "commit" a crime oneself in order to be guilty.
    Sometimes in order to be guilty it suffices to knowingly take advantage of someone else's crime, if the connection is sufficiently clear.
    And in this case it is.
    To be clear: I'm suggesting that these people should be deprived of the benefits of their parents' crimes, just as receivers of stolen goods are often deprived of said stolen goods.

  • OtisAH||

    And an infant knowingly benefits from the "crimes" of the parents?

  • MBmb||

    I find it hard to believe that most of these illegal immigrants' children do not know that their US citizenship is the result of their parents' illegal acts. And very few of them are infants (a rough guess would say

  • OtisAH||

    To be honest, the only reason I didn't just ignore you as the clown you portray yourself as was to see you twist yourself in knots maintaining your argument.

    By the way, "being born in this country" requires being brought into the country while in the womb, or being conceived and delivered in the country. If you are brought into the country as a child, you weren't born here and don't receive citizenship under "birthright citizenship." So yes, infants.

  • MBmb||

    My point is that very few of them are infants currently, a rough guess would say fewer than 10%. As soon as they reach the age of reason, if they are still living in the US, then they are knowingly taking advantage of their parents' illegal acts.
    Just like people in possession of stolen goods.
    Suppose that your parents robbed a passer-by every week in order to give you pocket money. Suppose that the passer-by was falling-down drunk and didn't really need all that money. If you acquiesced in this situation past the age of, say, 10, wouldn't this still make you an accomplice to their deeds?
    The correct course of action would be for them to leave the US. If they were moral people, then they would agree.

  • juris imprudent||

    While you do contribute to the political diversity here (yay diversity), you fail to add to the intellectual quality.

    How about considering the constitutional prohibition on attainder? Will that shut you up?

  • MBmb||

    I'm not against their children, grandchildren, or grand-grandchildren being granted US citizenship at some point in the future, if they obtain it in a fair and legal way --- not have their parents steal it for them.
    Again, this is common sense. The idea of attainder of blood is quite repugnant to a modern sensibility. I still don't see what it has to do with consciously taking advantage of one's parents' illegal and immoral deeds.

  • MatthewSlyfield||

    " I still don't see what it has to do with consciously taking advantage of one's parents' illegal and immoral deeds."

    Birthright citizenship is an event that happens once and once only for any given individual. How old they are now and what they are consciously aware of now is irrelevant.

    At the point that they obtained US citizenship and all the benefits that go with it, they were not capable of being conscious of their parent's illegal and immoral deeds.

    There is exactly zero basis in the law for revoking birthright citizenship after the fact.

  • MBmb||

    When they were born they obtained US citizenship (in a sneaky and underhanded way, using a dubious interpretation of the US Constitution based purely on political expediency), but by no means all the benefits that go with it.
    If they stayed on in the US to claim the benefits that come with their US citizenship, they made a conscious choice, for which they are responsible. This choice is ethically dubious, to say the least.

  • Sarcastr0||

    I'm not against their children, grandchildren, or grand-grandchildren being granted US citizenship at some point in the future, if they obtain it in a fair and legal way --- not have their parents steal it for them.

    Well, this sure is assuming your conclusions. 'I don't like the current policy, so I declare it unfair and illegal!'

  • MBmb||

    All intended consequences of an illegal and unethical act should be voided, to the extent possible. Do you disagree with this principle?
    If the children of illegal immigrants are consciously taking advantage of their parents' illegal deed, then they become accomplices to it and ought not to receive any benefit from it. If they were sincerely deceived and acted in good faith, then maybe an exception should be granted.
    I have mentioned some situations where this is the accepted practice and could mention more. I maintain that this practice should be extended to illegal immigration. Hopefully, a future Supreme Court will agree with me.
    Many people here disagree, presumably for reasons of political expediency. But they offer no arguments, little more than insults, in fact. Hard to contradict those.

  • MatthewSlyfield||

    "All intended consequences of an illegal and unethical act should be voided, to the extent possible. Do you disagree with this principle?"

    Yes, I disagree. Some of those consequences are benefits that accrue solely to third parties with no culpability for the illegal/unethical act and do not deprive other third parties of anything. Reversing such is an injustice in it's own right.

    "If the children of illegal immigrants are consciously taking advantage of their parents' illegal deed"

    They aren't and such would literally be impossible. The child's advantage from the illegal act was instantaneous, it is not continuous and it occurred at a them where the child was not capable of consciously doing anything.

  • MatthewSlyfield||

    PS.

    Revoking birthright citizenship is not withing the extent of what is possible.

  • MBmb||

    "Revoking birthright citizenship is not withing the extent of what is possible".
    I disagree.

  • James Pollock||

    "'Revoking birthright citizenship is not withing the extent of what is possible'
    I disagree."

    Fine. Your citizenship is revoked. Get out.

  • MBmb||

    Now we are getting closer to the root of the disagreement.
    "Some of those consequences are benefits that accrue solely to third parties with no culpability for the illegal/unethical act and do not deprive other third parties of anything".
    The first "third parties" are accomplices after the fact. Not to get into detail about various harms, vote dilution is harmful to the latter "third parties".
    "The child's advantage from the illegal act was instantaneous, it is not continuous and it occurred at a them where the child was not capable of consciously doing anything."
    Suppose some parents leave a stolen heirloom to their infant child. Even if the transfer occurred instantaneously and the child is not aware of it and does not constantly and consciously profit from it, the child still has no right to it. Agreed?
    Suppose a policeman falsifies evidence. Even if it took no more than a minute and the prosecutor is not aware of it when it happens and derives no benefit from it, the prosecution should still not take conscious advantage of it at any future time. Agreed?

  • MatthewSlyfield||

    "Suppose some parents leave a stolen heirloom to their infant child. Even if the transfer occurred instantaneously and the child is not aware of it and does not constantly and consciously profit from it, the child still has no right to it. Agreed?"

    Agreed, but I do not and can not agree that that analogy has any applicability to the birthright citizenship issue.

    By leaving the stolen heirloom with the child, the rightful owner is deprived of it. However, the child of illegal immigrants gaining birthright citizenship does not deprive any other person of their citizenship.

    "Suppose a policeman falsifies evidence. Even if it took no more than a minute and the prosecutor is not aware of it when it happens and derives no benefit from it, the prosecution should still not take conscious advantage of it at any future time. Agreed?"

    Agreed, but again it's irrelevant to the birthright citizenship issue. Here the cop and the prosecutor are both legally agents of a single entity (the government) who is the true actor/benefactor in the falsification. Plus the prosecutor already has a positive duty separate from the actions of the police office to not present evidence that he knows to be false. So the prosecutor presenting the falsified evidence would itself be a separate illegal/unethical act.

  • jkj9s||

    So, you support reparations for slavery, the return of this land to the natives, and the return of the English crown to the descendants of Richard III, provided that they immediately turn it over to the descendants of Edgar Aetheling?

    And you'll pay the jaywalking fine if someone pushes you into traffic, right?

  • Sarcastr0||

    Yes, I do disagree.

    First, with your premise that illegal entry is unethical. It's a reverse tragedy of the commons - it sucks for us collectively in a very marginal way, and is a massive improvement for the quality of life of the illegal and their family.

    Second, I disagree with the idea that voiding all consequences of an illegal act is a good principle. Do we purposefully delay people found speeding?

    Third, 'children consciously taking advantage of their parents' illegal deed' makes no sense. They aren't even born when the deed takes place; you foisting some sort of fault on them is just spite pretending it's rationality.

    Finally, you are making a policy argument about how the Supreme Court should change it's Constitutional jurisprudence. Despite what conservatives yell about liberals, you are barking up the wrong tree.

  • David Nieporent||

    Third, 'children consciously taking advantage of their parents' illegal deed' makes no sense. They aren't even born when the deed takes place; you foisting some sort of fault on them is just spite pretending it's rationality.

    Not to mention the significant number of illegal aliens who overstayed visas; that's not actually a crime, so their children wouldn't be taking advantage of a crime even under MBmb's formulation.

  • MBmb||

    Is it an illegal act, though?

  • James Pollock||

    "Not to mention the significant number of illegal aliens who overstayed visas"

    Not to mention the significant number of legal-at-the-time aliens who gave birth, entirely legally, within the U.S., and THEN overstayed.

  • MBmb||

    "It's a reverse tragedy of the commons - it sucks for us collectively in a very marginal way, and is a massive improvement for the quality of life of the illegal and their family".
    If your roommate got the exam questions and gave them to you the night before, then it's not your fault for having them, right? The university still owes you a degree. Your parents also got in by fraud, so now it's your birthright.
    "Do we purposefully delay people found speeding?"
    We expel students who cheated on a test, even if they learned something in the course. Is this close enough?
    If, when they become aware of their parents' deed, the children leave the US, then they are not consciously taking advantage of it. If they choose to keep taking advantage of it, then they are consciously taking advantage of it. It's a conscious choice.

  • James Pollock||

    "All intended consequences of an illegal and unethical act should be voided, to the extent possible. Do you disagree with this principle?"

    So, you want to return your property to the Native Americans now, or wait until some kind of court proceeding?

  • MBmb||

    Maybe I should have written practicable, instead of possible, but thought it was implicit.
    1. The dispossession of Native Americans violated no law that I am aware of. American Indians were foreign and mostly hostile nations (many fought on the British and Confederate sides).
    2. Do you consider giving the US citizenship to children of illegal immigrants a form of reparations for the dispossession of Native Americans? Otherwise, what is the connection?
    3. I'll wait for the court proceedings, because I'm not convinced that this dispossession was illegal or completely unfair.
    4. In principle, I'm not against returning a significant portion of US land to the natives. Would you then agree, based on the same principle of righting past wrongs, to denying the US citizenship to the children of illegal immigrants?

  • James Pollock||

    "1. The dispossession of Native Americans violated no law that I am aware of"

    Ignorance of the law as a defense? Good luck with that.

    "Do you consider giving the US citizenship to children of illegal immigrants a form of reparations for the dispossession of Native Americans?"

    No. Do you?
    You seem to have a view of things that benefit yourself are OK, and things that benefit other people are not. Are you trying to pretend that there's a principle at play there other than you are a selfish prick?

    "I'll wait for the court proceedings,"
    They sent you notice by smoke signal. It's not their fault you didn't show up for court.

    "4. In principle, I'm not against returning a significant portion of US land to the natives."
    Let me guess... significant portions that all belong to someone else?

  • juris imprudent||

    I still don't see what it has to do with consciously taking advantage of one's parents' illegal and immoral deeds

    Two points and I am done feeding the troll.

    1) The child has not defrauded the govt by being born in this territory. There is an astonishing lack of mens rea that you keep trying to fabricate.

    2) You are absolutely arguing corruption of blood, that the illegitimate acts of the parent(s) be visited upon the child

    Now kindly stop asserting good faith on your part (and political expediency on mine) and go crawl back into the alt-right hole you climbed out of.

  • MBmb||

    The parent has done the illegal deed, the child is an accomplice after the fact by consciously profiting from it, many years later. What could be clearer.

    And this sort of territorial instinct probably comes in handy in real life, but the more you insult me the less impressed I am with your put-on airs.

  • James Pollock||

    "The parent has done the illegal deed, the child is an accomplice after the fact by consciously profiting from it, many years later. What could be clearer"

    Let me help you with this. The statute of limitations on this accomplice crime you imagine is 0(.0) months.

  • MBmb||

    The law may change (and hopefully will), but such behavior never was and never will be right.
    And I strongly suspect, based on the many inane witticisms offered in response to my points, that most everyone knows this, but some of my interlocutors here
    1. don't care, because they imagine this will help them win elections
    2. have only a larval sense of right and wrong
    or
    3. have a stolen heirloom or two in their attics, with which they are reluctant to part.

  • David Nieporent||

    If you acquiesced in this situation past the age of, say, 10, wouldn't this still make you an accomplice to their deeds?

    Not legally, no. That's not what accomplice means.

  • MBmb||

    If you find out about a crime after it happens, and do something to help the criminal get away with it, or somehow personally profit from the crime, you're an accomplice after the fact.

  • santamonica811||

    MBmb,
    You are not a lawyer, so I'll just make a general point about the pitfalls of relying on TV shows to get one's legal knowledge.

    NO. If I find out about certain crimes after the fact (in your hypo, years and years and years after the fact), and I sit back and do nothing--other than personally profit from that bad prior act--I will NOT be an accomplice after the fact.

    You seem to be saying, "Hey, there was this past crime 10 years ago, that crime has a Statute of Limitations of 8 years, you just found out about it and are profiting from it, so you're an accomplice after the fact."

    I do not think your argument is well-grounded in the existing law.

  • juris imprudent||

    I do not think your argument is well-grounded in the existing law.

    It isn't grounded very well outside of rank prejudice. Considering he wishes to use blood corruption as a basis on which to exclude someone utterly lacking the conscious intent to violate the law.

  • James Pollock||

    Infant? You mean fetus. The illegal act is occurring before the child is even born.

    Is it OK with you if we scour your parents' backgrounds, and if we find something we don't like, we kick you out of the country?

  • OtisAH||

    Fetuses are not granted "birthright citizenship."

    The second part of your post confuses me due to its seeming irrelevance to my comment directed at Mmmbop.

  • James Pollock||

    "Fetuses are not granted "birthright citizenship.""

    They are when they're born in the US.

  • MBmb||

    If I got my citizenship as a consequence of these illegal actions, then yes.
    And I can think of plenty such situations that don't involve illegally crossing the border.

  • Voize of Reazon||

    I think I get it. Those kids got their citizenship by FRAUD!!!

    (for the diversion of oldtime VCers)

  • Smooth Like a Rhapsody||

    (Mick...)

  • santamonica811||

    Ah, I miss the old site. (I think you are supposed to have at least 5 exclamation points, but I'm splitting hairs, here.) :-)

  • James Pollock||

    "If I got my citizenship as a consequence of these illegal actions, then yes"

    So, when are you leaving?

  • MBmb||

    I bow to your superior wit (this was the whole point, right? to exhibit your superior wit?).

  • James Pollock||

    Any amount of wit is superior to 0.

  • MBmb||

    I wasn't even trying to be witty, I was trying to make some reasonable points. You, on the other hand, were "trolling".

  • James Pollock||

    " You, on the other hand, were 'trolling'."

    Incorrect. Trolling a troll is troll(squared).

  • MatthewSlyfield||

    "Infant? You mean fetus. The illegal act is occurring before the child is even born."

    It's not beyond the realm of possibility that the illegal act occurred before the child was even conceived.

  • James Pollock||

    "It's not beyond the realm of possibility that the illegal act occurred before the child was even conceived."

    True enough. But by definition it has to have occurred prior to infancy for birthright citizenship to apply.

  • David Nieporent||

    Knowingly profiting from a crime is also illegal,

    No, it isn't.

    I mean, one can identify certain times when it is, as you did, but there's no such general rule.

  • MBmb||

    The connection with the "fruit of the poisonous tree" is that people should not be allowed to benefit from their improprieties, especially when those improprieties were committed with the goal of obtaining that specific benefit. This is the principle at work in both cases.

  • Sarcastr0||

    Eh, lawyers get persnickety if you use their jargon in the wrong context. We do get what you mean.

    But you are advocating disincentivizing parents by punishing their children. That's not really something we do.
    Plus, we don't usually make our immigration policies based on the idea of punishing people with them.

    Finally, this is in the Constitution. You are making policy proposals that we should ignore what is in the Constitution. Which is designed to be a very difficult lift.

  • James Pollock||

    "lawyers get persnickety if you use their jargon in the wrong context."

    Their jargon is the tools of their trade. Most craftsmen get offended when their tools are misused by people who don't know how to use them properly.

    Like, say, not understanding what "subject to the jurisdiction" means.

  • Sarcastr0||

    I understand the impulse, but that guys is not making a legal argument, so these aren't the same tools in this context.

    'Subject to jurisdiction' is a legal argument, where being particular suddenly becomes a virtue.

  • MBmb||

    "Their jargon is the tools of their trade".
    How true! Lawyers trade in jargon, it's what they do. Without it they'd have nothing.

  • MBmb||

    Who wrote anything about incentives? It is wrong to knowingly profit from a wrong deed and the closer the connection to the perpetrator the more wrong it is.
    E.g. suppose you find the buried treasure of a pirate; the gold is rightfully yours.
    Suppose, on the other hand, that your father was an art thief and one day you find a stolen painting in your house.
    Ideally, the law would acknowledge that the painting was never yours, because of the way in which it was obtained. It doesn't matter that you were an infant at the time and aren't guilty. You should not be allowed to submit your father's deeds as evidence that you "own" this painting, even if you helped care for the painting as a small child, were convinced it was a family heirloom, and paid for its safe storage. The minimum restitution should be losing the painting.
    Likewise, children of illegal immigrants should not be allowed to prove their US citizenship using any consequence of their parents' misdeeds. The parents should never have been in the US to begin with.
    Finally, not being a US citizen is not a punishment, because being one is not a right. Most children are not US citizens and few think of it as a punishment for their parents.
    The Constitution is flexible and can be read to mean almost anything, is the lesson of the past century. By bringing common-sense examples, I have shown that this sort of legal reasoning is by no means rare. It is the job of a future Supreme Court to make the appropriate connections.

  • Rev. Arthur L. Kirkland||

    It is wrong to knowingly profit from a wrong deed

    Anyone doubt this guy will overlook his ostensible principles if, after committing a crime, he needs a lawyer?

  • John Rohan||

    Refusing to grant US citizenship to a child is not "punishment". If it were, then the vast majority of children born in the world are "punished" on a daily basis.

  • Sarcastr0||

    The policy put forth is about revoking the citizenship of the child because the parents have acted unjustly. How is this not exactly the same rationale and function of a punishment?

    John Rohan - by your logic I could take away all the guns in America because so many people in the world don't have guns already, and are they being punished?

  • MBmb||

    It's about not granting it in the first place.

  • MatthewSlyfield||

    Not granting birthright citizenship to the children of illegal immigrants is something that could be done only prospectively, that is the as yet unborn children of future illegal immigrants would not gain birthright citizenship.

    However, you have explicitly talked about taking birthright citizen ship away from now adult children of illegal immigrants. That would necessarily involve revoking grants of citizenship that occurred in the past. The grant of birthright citizenship is instantaneous.

    There is no provision in US law or in the Constitution for revocation of birthright citizenship and even less basis for limiting such revocations to the children of illegal immigrants.

    If they can revoke the birthright citizenship of a now adult child of illegal immigrants, then there is no reason why they can't revoke the citizenship of a person whose parents were citizens or legal resident aliens. In other words, they could revoke YOUR citizenship too.

  • MBmb||

    I wrote that their leaving the US would be ethical behavior. Law and ethics are not always the same and there are good reasons to err on the side of lenience sometimes. However, law should be guided by ethics as much as possible.

  • Rev. Arthur L. Kirkland||

    If they can revoke the birthright citizenship of a now adult child of illegal immigrants, then there is no reason why they can't revoke the citizenship of a person whose parents were citizens or legal resident aliens. In other words, they could revoke YOUR citizenship too.

    You make that sound as if it would be a bad idea in MBmb's case.

  • John Rohan||

    No, if the interpretation of the 14th were changed, citizenship would not be revoked, it wouldn't be granted in the first place.

  • MatthewSlyfield||

    "No, if the interpretation of the 14th were changed, citizenship would not be revoked, it wouldn't be granted in the first place."

    Sorry, but such a change in interpretation would not affect the citizenship of those who gained birthright citizenship under the old interpretation. You can not un-grant their citizenship retroactively.

  • James Pollock||

    " You can not un-grant their citizenship retroactively."

    If you can decide that birthright citizenship doesn't mean birthright citizenship, then you can also decide that the prohibition of ex post facto laws doesn't apply, either.

  • Krayt||

    ===If it were, then the vast majority of children born in the world are "punished" on a daily basis.===

    Arguably they are, but that's beside the point.

    It's ironic the left, who did not view shoving a child back to the miserable dictatorship of Cuba against the wishes of his dead mother, who died bringing him to freedom and America, viewed it not as a punishment back then but indeed a blessing, but simply refusing entry is a punishment now.

  • Sarcastr0||

    First, like many anecdotes people seek to generalize into some sort of hypocrisy, once you get rid of the nuance, your side looks like flip flopping hypocrites as well.

    Of course, if you bother to examine the issue, Cuba hadn't been much of a hellhole for ole Elian, from what we see. Plus that was where his father was. Are you in favor of breaking up families, now?

    Coming to America is a benefit for most everyone, but sometimes there are countervailing costs.

  • James Pollock||

    "It's ironic the left, who did not view shoving a child back to the miserable dictatorship of Cuba"

    That's an odd way to spell "honoring the wishes of the child's only parent".

  • santamonica811||

    Krayt,
    Being intentionally misleading does not help improve your credibility. What our government did was return the child to his BIRTH FATHER . . . and the father happened to live in Cuba. EG would have been returned to Canada, or Argentina, or New Zealand, or France without a single whimper of protest from you and Fox News, if that had been where the father happened to live. But because the father lived in Cuba, it suddenly was okay with the "pro-family" party to keep a son from his only living parent.

    Look, I happen to think that--all things equal--EG's life would be better in America than in Cuba. But all things are not equal. A child is better off with a caring parent, as a general rule. I remember when conservatives used to agree with this principle. A judge listened to a ton of evidence, where people tried to show how awful the dad would be as a parent, how awful Elian's life would be back in Cuba, etc...and that judge, after listening to all that evidence, found no support for that proposition.

  • D'tronn||

    You (apedad) seem to ignore the precedence of what is considered legal/illegal. By simple virtue of parental birth, the parents being of an illegal status confer their illegal status upon their offspring... the act of childbirth within the US does not and should not confer a " legal birthright" inclusive with the rights and obligations of a Naturalized legal citizen.
    In fact, until parents which are born of foreign status renounce their allegiance to their country of birth and adhere to the protocols established and recognized by both court and congress....he Naturalization Act of 1790 set the criteria for naturalization to two years of residency, proof of good moral character, and an oath to support the Constitution. It also mandated that one must "absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign Prince, Potentate, State or Sovereignty."proclaim the US as their country of choice".

  • Glaucomatose||

    "By simple virtue of parental birth, the parents being of an illegal status confer their illegal status upon their offspring... the act of childbirth within the US does not and should not confer a " legal birthright" inclusive with the rights and obligations of a Naturalized legal citizen."

    Well, no, the parents being of illegal status doesn't confer illegal status upon their offspring, and yes, the act of childbirth within the US does indeed confer a legal birthright. That's sort of what this whole discussion is about. You can argue about what it _should_ do, but in terms of what it _does_ do, I'm afraid you're wrong under the Constitution.

    And the Naturalization Act of 1790 could have mandated whatever it wanted to, but it wouldn't override the 14th Amendment as ratified in 1868.

  • Calidissident||

    The Naturalization Act also only applied to immigrants. Birthright citizenship was the norm before the 14th Amendment, aside from the Dred Scott decision (almost universally derided as the court's worst decision ever) declaring that black people couldn't be citizens.

  • apedad||

    D'tronn, read up on jus soli and jus sanguine, and the current US law and then get back with us.

    You're clueless.

  • Rev. Arthur L. Kirkland||

    I am grateful to Mr. Anton and many conservatives for embracing bigotry so openly and enthusiastically, and to every other Trump-voting conservative or Republican for appeasing backwardness, ignorance, and intolerance. Your efforts will make it easier for your betters to continue to effect progress in America. Thank you, clingers.

  • ||

    Filling up America with tens of millions of third-world Hispanics is not progress.

  • apedad||

    Tens of millions of mouth-breathing Tennessippians doesn't help progress either.

  • Rev. Arthur L. Kirkland||

    Millions of Pennsyltuckians, Oklabamans, and South West Virtexlinians resent being left behind (yet again).

  • OtisAH||

    Adding one you hasn't done us any favors, either.

  • santamonica811||

    Otis
    Are you referring to ALK? To Actual Right Wing?? To Apedad?????

    Remember, with this horrifically-bad website's visual structure, it's often impossible to know what "you" one is referring to, unless you give a name (as I did, above), or unless you quote a bit of an earlier post that you're responding to.

  • regexp||

    Filling up America with tens of millions of third-world Hispanics is not progress.

    The recent numbers put the number of undocumented immigration at 11million TOTAL. And yet this country still thrives (although the Republicans economic policies will undoubtfully put an end to that).

    Immigrants are required for a country to continue to grow and they bring new ideas to the country.

  • ||

    I'm not talking about undocumented, but legal third-world immigration as well.

    They don't bring "ideas." They bring crime, poverty, illegitimacy and welfare dependence.

  • James Pollock||

    "They don't bring "ideas." They bring crime, poverty, illegitimacy and welfare dependence."

    They're taking the jobs of actual right-wing patriots! If anyone should be bringing crime, poverty, illegitimacy, and welfare dependence, it's actual right-wing patriots, the inventors of all those things.

  • bernard11||

    They have lower crime rates than those born here. And that's true for illegal immigrants as well.

    But don't let facts ruin your bigotry.

  • ||

    Only if you include in "those born here" our black and Hispanic (citizen) population. Third-world immigrants have a far higher crime rate than our white and Asian native population.

  • James Pollock||

    You so desperately WANT this to be true, don't you? If only that were how things came to become true...

  • ||

    Truth hurt?

  • James Pollock||

    "Truth hurt?"

    You'll never know, the distance you keep away from it.

  • James Pollock||

    You mean until they watch by, patiently defending their man as he sells us all to Russia, right? Because after that, progress ain't gonna be effected by much of anyone.

  • Thomas O.||

    If Anton thinks Trump can modify the 14th Amendment by Executive Order, he must have overlooked the very end of the 14th Amendment: "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Doesn't say anything about the President having that power.

    Not to mention Article I Section 8 sets immigration law as an exclusive power of the House and Senate.

  • Brett Bellmore||

    I don't think the claim is that Trump can modify the 14th amendment. Just like when the Supreme court finds penumbras and emanations, he'd just be interpreting it.

    But, yeah, this is the weakest area of the argument. If he were arguing Congress could enact legislation to this effect, he'd be on solider grounds.

  • James Pollock||

    The claim is that Trump can IGNORE the 14th amendment.

    Expect equal protection and substantive due process to quickly follow after we get rid of that pesky birthright citizenship "problem". Then we can get on to establishing that state religion...

  • Pettifogger||

    We should be skeptical of legal arguments made by someone who glosses over the difference between presidential decrees and executive orders

  • John Rohan||

    Playing devil's advocate here - in 2015, SCOTUS used really creative theories to explain how the framers of 14th amendment meant it to apply to gay marriage. So it would be far less of a stretch to creatively interpret "subject to the jurisdiction thereof".

    After all,

    1. Are illegal immigrants subject to the draft?

    2. Can illegal immigrants perform jury duty?

    3. Are illegal immigrants eligible to vote, join a police force, join the military, or run for office?

    In any case, whether it can be done by POTUS, Congress, or Constitutional Amendment, it's clear that the 14th needs to be changed. It was never meant to apply the way it is now. International tourism was not really even a concept in 1868, and there is no way they would have predicted the statute would be abused so blatantly 100 years later (some tourist agencies in Phillipines and China even openly advertise "citizenship tours" for pregnant women to travel to the United States).

    I realize that Reason generally favors open borders, but this issue goes beyond illegal immigration. In fact these birth tourists are far worse. At least illegal immigrants live here and participate in society. But birth tourists have no intention of living in this country or contributing to anything, paying taxes, or building ties here. They simply want that US citizen status for their child to open up future options, making it easier to attend college in the US, for example.

  • David Nieporent||

    1. Are illegal immigrants subject to the draft?

    There is no draft, but if there were, Congress could certainly require them to serve, because they are subject to Congressional jurisdiction.

    2. Can illegal immigrants perform jury duty?

    We generally don't want them to. But they could be forced to do so, because they are subject to the jurisdiction they live in.

    3. Are illegal immigrants eligible to vote, join a police force, join the military, or run for office?

    Maybe yes, maybe no. Depends on the jurisdiction one lives in. But again, they could be, because they're subject to the jurisdiction of U.S. law.

  • Calidissident||

    Also, a lot of those things are true of legal immigrants. You have to be a citizen to serve on juries, or vote or hold office (for the most part, there might be exceptions in some localities).

  • Calidissident||

    Another thing - the language talks about whether the person born in the United States is subject to its jurisdiction - not their parents. So even if their parents weren't (which is incorrect, but assuming for the sake of argument) that doesn't mean they are not.

  • James Pollock||

    The U.S. military does sometimes accept non-citizens for service. It's one of the paths for non-citizens to become citizens. Of course, a service-member posted to a US base is not in the US illegally, and a service-member posted to an overseas post is not in the US at all.

  • ||

    It's time to repeal the 14th Amendment. It was a fun experiment, but a disaster in practice.

  • regexp||

    The very fact you find it a 'disaster' just reinforces the genius behind the amendment and why it needs to stay.

  • Rev. Arthur L. Kirkland||

    It's time to repeal the 14th Amendment. It was a fun experiment, but a disaster in practice.

    You claim to be a graduate of a top-six law school. Do you practice law? Does your employer, or do your clients, know you are an aggressive right-wing bigot? Do your friends, family members, or neighbors? How do you manage to function in decent or professional society with your viciously retrograde opinions and general anti-social personality?

  • ||

    I do not practice law anymore. Anyway, the only bigot around here is you.

  • Bart DePalma||

    Judge James Ho: "When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. The "jurisdiction" requirement excludes only those who are not required to obey U.S. law."

    Under Anglo-American law, the original meaning of the term of art "subject to the jurisdiction" does not include invading foreign soldiers. Magliocca, Gerard N., Indians and Invaders: The Citizenship Clause and Illegal Aliens (March 2008). University of Pennsylvania Journal of Constitutional Law, 10, 499. Available at SSRN: https://ssrn.com/abstract=965268

    Foreign soldiers are, in fact, subject to the jurisdiction of our laws and can be criminally prosecuted, detained and expelled. Thus, the term of art "subject to the jurisdiction" cannot be limited to those the government requires to obey U.S. law.

    The exclusion of foreign soldiers can only be understood if the term of art takes the point of view of the invading alien, rather than the government. Foreign soldiers are excluded because they refuse to subject themselves to the jurisdiction of our laws barring their entry into our territory.

    The exclusion of invading alien soldiers thus applies to all illegal aliens.

  • Sarcastr0||

    Foreign soldiers are excluded because they refuse to subject themselves to the jurisdiction of our laws barring their entry into our territory.

    There might be some other reasons why foreign soldiers are frowned upon, chief.

  • James Pollock||

    Spend some time on a US military base, and you'll probably run into quite a few. I went to tech school on the same base that used to teach people how to read aerial and satellite surveillance photos, so it had all the branches of the US military plus a substantial number of foreign (allied) military on detached duty.

  • Glaucomatose||

    I think you're misunderstanding the "foreign soldiers" exception. It's not that children of foreign soldiers - even hostile ones - aren't granted citizenship automatically, it's that children of foreign soldiers "born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King." In other words, if a foreign army occupies a portion of the country, that portion of the country is now, effectively, part of a foreign state; as the King (or domestic government, in this case) has no power to enforce its law over that territory, the inhabitants of that territory are no longer subject to the King's/state's jurisdiction.

  • M.L.||

    The argument isn't bad and the issue isn't beyond question. Adler is overstating and under-informing. Here's pro-open borders Ilya Shapiro:

    [A] natural reading of "subject to the jurisdiction" suggests that the children of illegals are citizens if born here.

    On the other hand, the Fourteenth Amendment's enactors probably didn't intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration. "Subject to the jurisdiction" probably meant primary allegiance to the United States as a sovereign.

    When the original public meaning of a legal text is unambiguous, you have to adopt that meaning unless it leads to absurd consequences. Here, the consequences may well be irrational and self-defeating: We prohibit unauthorized entry while offering an inducement, giving citizenship to the children of those who violate the law. So if Congress were to deny citizenship to children of illegal aliens, the Supreme Court might not declare that law unconstitutional. It's a close call (read the strong arguments pro and con constitutional birthright citizenship by my friends Jim Ho and John Eastman, respectively).
  • Sarcastr0||

    probably didn't intend

    Yeah, this is totally deeply researched scholarship and not outcome oriented rationalization.

    And the absurd consequences argument stretches that cannon to laughable proportions. By that logic, any policy I don't like becomes absurd, from the war on drugs to Obamacare not mandating medicare expansion.

  • M.L.||

    If you want deeply researched scholarship see the links below to John Eastman (academic paper and NR op-ed). He also has an NYT op-ed you can find from Dec 22 2015.

    As for Ilya Shapiro, it is worthy inclusion here because it is a reasonably well-informed opinion that is coming from someone who has a diametrically opposed view of the policy issue.

  • Sarcastr0||

    No, it's not well-informed, as evinced by his laughable absurd result argument. To lawyers it's silly. To everyone else, it's propaganda.

    Stick to Eastman's partisan advocacy-scholarship.

  • M.L.||

    No, you're not well-informed.

    I don't particularly like the sound of the "absurdity doctrine" . . . . . but it is a thing.

  • M.L.||

    Second link was supposed to be like this.

  • Sarcastr0||

    Oh, I know the doctrine/cannon. It's just being very, very misapplied.

    I wouldn't think you'd fall for the propaganda, though, you're a lawyer!

  • M.L.||

    Oh, sorry, I thought you were actually attempting to make a substantive argument, by saying that the form of "absurd result argument" is wrong as a matter of law.

    Silly me! I should have known that you were just calling an argument "laughable absurd" without saying why.

    Regardless, these are Ilya Shapiro's genuine views, not propaganda. Their credibility is bolstered by the fact that this runs counter to policy preferences that this guy spends his life advocating for. He cites John Eastman for the reason he thinks it's a close call. The absurd results argument seems to be thrown in for good measure.

  • James Pollock||

    "these are Ilya Shapiro's genuine views, not propaganda"

    I'm going to need some documentation that supports the notion that these are mutually exclusive categories.

  • juris imprudent||

    You Sarcastr0, if you are talking legal cannons are they 16-pounders or howitzers?

  • Voize of Reazon||

    Sounds like a question of cannon law, I'll have to ask the Bishop.

  • James Pollock||

    My own training and experience is with 20 and 30mm cannons, though I've also had years experience with typoes, and people who think typoes are significant in Internet commentary.

  • juris imprudent||

    I think Sarcastr0 more than able to tolerate and appreciate a [very] modest bit of humor.

  • Sarcastr0||

    Especially when I'm asking don't it with a typo like that...

  • Purple Martin||

    Now if we can just convince Sarc to start using "its" instead of "it's" as the possessive form...

  • James Pollock||

    " the Fourteenth Amendment's enactors probably didn't intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration."

    This is the same logic that says semi-automatic pistols aren't covered by the second amendment, because the guys who wrote it were thinking of muzzle-loading long guns.
    Careful. Certain people don't like it when you get caught using this logic (or pointing it out).

    " 'Subject to the jurisdiction' probably meant primary allegiance to the United States as a sovereign."

    They meant to exclude diplomats' children and native peoples.

  • bernard11||

    The arguments that drafters "probably didn't intend" that their work would apply to a situation they probably never even thought about is idiotic. It is nothing but baseless supposition used to support a point of view.

    The drafters certainly intended birthright citizenship. Did they mean for this to apply only to those here legally, citizens or otherwise? If they did, then they could have said so. They were silent on the point, so either they never thought about it or they thought birthright citizenship should apply regardless.

  • FlameCCT||

    Technically the child has dual citizenship however the parents are a different matter. I know that most people with dual citizenship (US & other) must choose their primary when they turn 18. Until such time, they cannot confer residency for the parent(s). IOW those legally in the country may be allowed to stay longer should they so choose whereas those illegally in the country may be deported.

  • James Pollock||

    They may or may not be dual citizens. That would be up to the laws of the other countr(ies) involved.

  • M.L.||

    Here's more opining at NR:

    A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the "jurisdiction of the United States" and therefore eligible for citizenship...

    Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation's geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that "subject to the jurisdiction thereof" meant "not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States."

    Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but "persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers."
  • M.L.||

    cont'd

    Thus, "subject to the jurisdiction" does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S...

    ..Blackstone speaks only of "birthright subjectship" or "birthright allegiance," never using the terms "citizen" or "citizenship." The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a "debt of gratitude." ....America's Founders rejected this doctrine...

    Beginning in 1870.. Congress began to pass legislation offering citizenship to Indians on a tribe-by-tribe basis. Finally, in 1923, there was a universal offer to all tribes. Any Indian who consented could become a citizen. Thus Congress used its legislative authority under Section Five of the 14th Amendment to determine who was within the jurisdiction of the U.S. It could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens are not subject to the jurisdiction of the United States. A constitutional amendment is no more required today than it was in 1923.
  • Voize of Reazon||

    I'm not aware of any tests of the constitutionality of the Snyder Act of 1923, but I wouldn't expect it to rest on Congress's ability to redefine "subject to the jurisdiction" on a selective basis. The Constitution says that citizens may be born or naturalized, and that Congress has full discretion to "establish an uniform Rule of Naturalization", and the Snyder Act would most naturally be seen as an exercise of that power. I admit to being confused by one issue: The 14th says that anyone whether born or naturalized is a citizen of the United States and of their state of residence, but the Act purported to only grant US citizenship and it was decades later before all the states got on board.

  • James Pollock||

    Federalism. Congress can legislate naturalization, but people within the U.S. determine their state citizenship by residence. And of course, some people live in the United States but are not citizens of any of the 50 states, and that was more common in the past, when the western territories were still territories and not yet states.

  • Voize of Reazon||

    Thanks for the response, but "federalism" despite the explicit language in the 14th?

    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.
  • James Pollock||

    Nah. "Federalism" BECAUSE OF the explicit language of the 14th. Congress has the authority to determine whether, or when, a candidate for citizenship becomes a citizen of the United States... by virtue of the grant of authority to determine naturalization. But the Constitution expressly denies the federal government the ability to make anyone a citizen of any of the states. Rather, the new citizen becomes a citizen of of the state wherein they reside.

    So, consider these possible combinations:
    1) a person is naturalized and resides in Atlanta, Georgia. This is the easy one. The new citizen is also a citizen of Georgia by operation of the 14th amendment.

    2) a person is naturalized and resides in one of the Pacific trust territories. The new citizen is not a citizen of any state.

    The result is the same each time... naturalizing a citizen, or birthright, creates a citizen of the state if the new citizen resides in a state. Congress takes care of the U.S. citizenship... it's allowed to do that. But Congress can't make any of the states recognize a citizen. That happens by residency.

  • James Pollock||

    Recall that the need for this bit of Constitution was that various prior slave states attempted to limit state citizenship (and voting rights) by defining state citizenship as arising from being born of state citizens... the former slaves had almost all come about from parents who weren't state citizens, and their children mostly likewise.

    The thirteenth amendment made them free, but (thought the legislatures of the former Confederacy) they can't tell us who's a citizen of our state from Washington! Well, turns out they can.

  • Glaucomatose||

    You are quoting Erler, who is also the source of the argument that Anton paraphrased, and therefore you repeat one of the more egregious mistakes that first Erler, and then Anton, made: namely, altering the quote of Senator Howard by inserting an 'or' that changes the meaning of Howard's statement.

    You may be interested to see that NR felt the need to go back to this article in the wake of Anton's op-ed, three years later, and fix Erler's misquote.

  • Calidissident||

    Also, as I said above, Trumbull - who they rely on in misinterpreting his statement about allegiance - explicitly stated in the debates about the 14th Amendment that children of Chinese and Gypsy immigrants (who were ineligible for naturalization at the time) would be citizens. This was understood by both the proponents and the opponents of the amendment.

  • M.L.||

    Interesting - that does introduce some ambiguity, not much though.

  • bernard11||

    "persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers."

    There is no "or" in the actual quote. Writers who put it in are lying.

  • Voize of Reazon||

    Trumbull said a lot in those debates and it is a task to read it consistently. He said

    What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means.

    Hardly taking a breath, he then adds

    Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty?
  • Voize of Reazon||

    A minute later, when asked about IIndians he adds

    Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.

    This makes sense to me only if I understand his "allegiance to ..." to mean "duty to obey the laws of ...".

  • M.L.||

    This paper by John Eastman is required reading for Adler and anyone who thinks likewise.

    Abstract
    Testimony before the U.S. House of Representatives, Judiciary Committee, Subcommittee on Immigration, Border Security, and Claims (Sept. 29, 2005) contends that the Citizenship Clause of the 14th Amendment has been misconstrued as mandating birthright citizenship. Rather, the clause was a codification of the 1866 Civil Rights Act, which quite clearly exempted from the automatic citizenship provisions children of parents who owed allegiance to a foreign power - i.e., those who were in the U.S. only temporarily (and particularly those who were in the U.S. illegally). This was the understanding of those who drafted and those who ratified the 14th Amendment, and was confirmed by the Supreme Court in the first two cases to address the clause. In 1898, the Court reversed course, though, holding that the Clause mandated birthright citizenship, resulting in a repudiation of the principle of bilateral consent as the foundation for citizenship.
  • Sarcastr0||

    I disagree. The mere fact that some law profs and judges take a position, does not necessarily mean that such position isn't clearly wrong.

    Sounds like your dislike of appeal to authority is pretty outcome-oriented.

  • M.L.||

    No, it's just too easy to shoot down the idea that law profs and judges could never take a clearly wrong position.

    If you are referencing the fact that I used Tribe and Sunstein as examples of persons that might state a position in certain terms, when at least some law profs and judges disagree with them, this is just a gracious acknowledgement of the neutrality of santamonica's point given his/her left-leaning views, and an acknowledgement of my own conservative-leaning views.

  • Sarcastr0||

    So Prof. Somin is saying that this isn't a 'clearly' situation. You seem to agree, but are kinda angry he's taken the other side?

  • M.L.||

    No... ? I agree it's a close call.

  • Calidissident||

    There were no immigration laws in 1866, which is how I know right off the bat that this argument is terrible. Also, the court held in 1844 that a woman born to an Irish couple who were visiting the United States temporarily was a citizen. There was no reversal of course on that either.

  • M.L.||

    As I explained above, the fact that there were no migration laws (there were naturalization laws of course) is really irrelevant.

  • ReaderY||

    I agree. But that said, a Congress intent on reaching the result, willing to manipulate legal categories to do so, and unconcerned about the foreign relations of its actions, could achieve it.

    As one path, Congress could declare war on its country, declare its citizens to be enemy aliens, partially suspend the writ of habeas corpis (in time of war) and then declare enemy aliens to be legally outlaws. All things it can legally do under the Constitution.

    And it could do all these things as pure legal formalities in order to achieve the desired results under internal U.S. law, without ever intending to actually fire a shot or conduct any hostilities.

    And if the other country(ies) is/are small, weak, and friendless enough, it could get away with it.

    Such actions have not in the recent past generally occurred to us, although enemy civilians were indeed regarded as legal outlaws at common law at the time of the Founding. But in these times, how to break a constitution legally ought to be required study in law schools.

  • M.L.||

    Even our own Ilya Somin (!!!) -- who is known to become alarmingly unhinged from rationality when discussing immigration and attendant legal issues -- acknowledges that "both sides have some serious arguments."

  • M.L.||

    And that the "the anti-birthright citizenship side of the debate" as exemplified by Eastman's recent argument "cannot be easily dismissed."

  • Sarcastr0||

    Though you notably cut off which side he comes down on:
    While both sides have some serious arguments, the defenders of birthright citizenship ultimately have the better case. Legal scholar Michael Ramsey has an excellent summary of the key reason why...

  • D'tronn||

    While I understand the historical majority viewpoints of the various justices opinions; I do not understand the reason(s) for which illegal aliens- those who still owe an allegiance to another government- giving birth to children within any state, are awarded US citizenship. To me this seems an outdated form of protectionism that would be understandable IF they (the illegal parents) were claiming sanctuary, or similar, from their original birth country; in which case wouldn't they be constitutionally obligated to follow proper LEGAL immigration protocols?

  • David Nieporent||

    I do not understand the reason(s) for which illegal aliens- those who still owe an allegiance to another government- giving birth to children within any state, are awarded US citizenship.

    Illegal aliens are not awarded U.S. citizenship.

  • Brett Bellmore||

    After doing a bit of research, I found this paper at the Federalist Society.

    What 'Subject to the Jurisdiction Thereof' Really Means

    Alton's case seems stronger than I first thought; Senator Howard appears to have agreed with him!

  • M.L.||

    Another good link. I think Anton has the stronger case, even if he didn't make the best argument(s). But there's room for reasonable debate.

  • David Nieporent||

    Another good link. I think Anton has the stronger case, even if he didn't make the best argument(s). But there's room for reasonable debate.

    Anton made really stupid arguments. For instance, he wrote:

    Those framers understood, as did America's founders, that birthright citizenship is inherently self-contradictory. A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact's scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact.

    But this is not an argument against illegal aliens' kids becoming citizens; it is an argument against anyone becoming a citizen at birth, including children of citizens.

    I know that I didn't consent to Michael Anton becoming a citizen when his mother gave birth to him. Did you?

  • M.L.||

    Aha, you are correct that Anton did not argue clearly. But let me clue you in on the legitimate point that he probably read elsewhere and then bungled:

    The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a "debt of gratitude." According to Blackstone, this debt is "intrinsic" and "cannot be forfeited, cancelled, or altered." Birthright subjectship under common law is the doctrine of perpetual allegiance.

    America's Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that "the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved." So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.
  • M.L.||

    cont'd

    Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the 14th Amendment, and characterized the right of expatriation as "a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness." Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: "The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy." The notion of birthright citizenship was characterized by another member as an "indefensible doctrine of indefeasible allegiance," a feudal doctrine wholly at odds with republican government.

    As John Eastman stated, what is at work here is "the principle of bilateral consent as the foundation for citizenship."

  • David Nieporent||

    The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a "debt of gratitude."

    No. This is dumb. Every country on the planet, probably every country in history, has "birthright citizenship." Some do it based on jus soli and some based on jus sanguinis -- but in either case, people become citizens at birth.

    According to Blackstone, this debt is "intrinsic" and "cannot be forfeited, cancelled, or altered." Birthright subjectship under common law is the doctrine of perpetual allegiance.

    ...

    So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.

    No, it isn't. Whether someone born in the territory is a citizen at birth has nothing whatsoever to do with whether citizenship can be renounced. It's a completely unrelated concept.

  • M.L.||

    David, We were discussing the principle of consent as the basis for citizenship. You rightly took issue with Anton's incomplete exposition, pointing out that people born into citizenship did not consent to it. This background and specifically the Expatriation Act very much helps to explain why this principle was not only held by the Founders and the Framers of the 14th but remains operative today, save for the absurd situation of "maternity hotels" and "anchor babies." Would anyone care to defend the policy merits of these asinine byproducts of our flawed immigration regime?

  • Rev. Arthur L. Kirkland||

    America has encountered successive waves of ignorance and intolerance -- often associated with skin color, religion, immigration, or perceived economic pressure -- throughout its run. Those targeted -- hated, feared, demonized, discriminated against -- have included Hispanics, Jews, Italians, blacks, agnostics, gays, the Irish, eastern Europeans, Asians, atheists, women, Catholics, and others.

    Intolerance and ignorance have been bad bets in America over all but the shorter terms, however, and this latest batch of bigots seems nothing special, its reliance on the charms, insights, and effectiveness of Donald Trump notwithstanding.

    America's way has been progress and improvement, forged during our most recent half-century by our liberal-libertarian alliance, against the wishes and efforts of the conservative-Republican electoral coalition. I expect that course to continue. American culture has withstood egg rolls, tacos, Liberace, bagels, race music, sushi, Santana, pierogis, Rosa Parks, Friday fish frys, Susan B. Anthony, bingo, and Jameson whiskey, and James Jamerson. Tacos, egg rolls, fried fish, and pierogis sounds like the menu of an average American diner.

    America will continue to improve, making right-wingers such as Mr. Anton sad and increasingly disaffected.

  • Jason NYC||

    This isn't as obvious to me as it is to others here.

    If I understand Jonathan correctly, at the time this language was adopted, it was seen as meaning that foreign soldiers who were present in the United States without permission, could not claim citizenship for their children.

    At the time of adoption there was no such thing as an illegal alien, because there were no federal laws that prohibited foreign citizens from entering the country. Now there are.

    What is the legal basis for saying that this text applies to foreign soldiers who enter the United States without permission, but not foreign citizens, who enter the US in violation of our laws and with the intent to continue to violate those laws? Aren't they deliberately flouting the jurisdiction of the United States of America?

  • Glaucomatose||

    "If I understand Jonathan correctly, at the time this language was adopted, it was seen as meaning that foreign soldiers who were present in the United States without permission, could not claim citizenship for their children."

    Not quite: it was seen as meaning that foreign soldiers who had invaded the United States and who had children "born during and within their hostile occupation of part of the ... dominions" of the United States could not claim citizenship for those children. This is because "If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs."

    The point isn't that someone is "deliberately flouting the jurisdiction of the United States of America," the point is whether or not the United States of America has the power to do something about it. And unless the person in question is a foreign ambassador with diplomatic immunity, or a member of an invading army that's occupied and controls U.S. territory, the answer is yes.

  • Jason NYC||

    Where does your language "born during and within their hostile occupation of part of the ... dominions" come from. I can not find it in Jonathan's post.

  • Glaucomatose||

    It's from the Supreme Court, in its (rather extensive) spelunking into the common-law tradition of jus soli that it did in the Wong Kim Ark opinion.

  • James Pollock||

    "it was seen as meaning that foreign soldiers who were present in the United States without permission, could not claim citizenship for their children."

    No. They meant foreign diplomats, but mostly native Americans, could not claim citizenship for their children via this avenue.

    They meant to INCLUDE a whole bunch of people who were presently lawfully within the United States, but who failed citizenship based on parentage because while their parents had been lawfully within the United States, they were not granted citizenship, either.

    Claiming that birthright citizenship excludes persons who "owe alliegance to a foreign power" would have defeated the primary purpose of the birthright citizenship provision in the first place, because the slaves had been taken from foreign countries and had not renounced any prior citizenship they might have held.

  • Jason NYC||

    Where does your language "born during and within their hostile occupation of part of the ... dominions" come from. I can not find it in Jonathan's post.

  • Tom Watson||

    I highly recommend the very good 9/11/15 FedSoc debate on this topic between Prof. Yoo and Prof. Eastman, titled "Debating Birthright Citizenship - Podcast". The link is too long to post here, but you can search for it.

    I had assumed I would side with Prof. Yoo (who endorses Prof. Adler's position), but was swayed by Prof. Eastman's arguments, which I think will ultimately prevail should SCOTUS every reach the issue.

  • Voize of Reazon||

    I hope Putin doesn't hear about this. He could destroy the US in a generation by granting Russian citizenship to everyone born here, by Eastman's logic those newborns would not be US citizens because they would not be subject to the country's "complete jurisdiction".

  • Rev. Arthur L. Kirkland||

    I highly recommend the very good 9/11/15 FedSoc debate on this topic between Prof. Yoo and Prof. Eastman, titled "Debating Birthright Citizenship - Podcast". The link is too long to post here, but you can search for it.

    That one covers the ideological spectrum from movement conservative to wingnut. Which one took the position that Jesus was on his side?

    (Trick question: They both did.)

  • vek||

    Whatever they intended, birthright citizenship for anybody on our soil is a HORRIBLE idea. At least one of the parents should have to be a citizen. The fact that people can just come here from China on vacation, pop out a baby, and have them get dual citizenship is ridiculous. Yet that is becoming quite a thing now.

    I see that there is enough wiggle room in the wording there that it could probably be reasonably stripped away... Which I would be fine with. Everything else in the constitution gets ignored anyway, so might as well go with an interpretation that actually does something positive for once!

  • ExGAnyst||

    The following are merely questions, not a position:

    In the following documented statement during the debate by the drafters of the 14th Amendment over the jurisdiction clause:

    "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, but will include every other class of persons."

    Why did the drafters feel compelled to enumerate "foreigners, aliens" in the statement if they did not desire to distinguish them?

    Are not persons "...who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States..." by definition, "foreigners,(and) aliens"?

    Why not write instead:

    "This will not, of course, include persons born in the United States 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."?

    Without the words "foreigners, aliens"? Would this not mean Exactly what the writer of this article and the quoted writers of the opinions counter to Mr. Anton's, contend that the original writing intends?

    In my readings of the Constitution and surrounding debates, I have not found the drafters to be this ineloquent.

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