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Birthright Citizenship and the Constitution

Why Trump cannot eliminate birthright citizenship for children of undocumented immigrants by executive order.

In a recent interview, President Donald Trump claimed that he can issue an executive order to end birthright citizenship for children of undocumented immigrants born in the United States. The proposed order might also prevent US-born children of foreigners here on temporary visas from getting citizenship. Can Trump legally do that? The short answer is no. The Fourteenth Amendment gives birthright citizenship to children of undocumented immigrants and visa holders, if they are born on US soil. Even if that were not the case, the power to grant citizenship is a congressional power, not an executive one. I have some reservations about the morality and policy of birthright citizenship. But the constitutional issue is clear: Trump does not have the power to end birthright citizenship at all, and certainly not by an executive order issued without congressional authorization.

Prominent originalist legal scholar Michael Ramsey summarized the issue well in a 2015 post:

The first sentence of the Fourteenth Amendment conveys U.S. citizenship on all persons "born … in the United States and subject to the jurisdiction thereof." Obviously we are talking here about persons "born … in the United States." Thus the children of illegal aliens are not U.S. citizens only if they are not "subject to the jurisdiction" of the United States.

But there is no sense in which children of illegal aliens are not "subject to the jurisdiction" of the United States. So long as they remain in the United States, they are subject to U.S. law. If they violate U.S. law, they can be arrested by U.S. law enforcement, brought before a U.S. court, and sentenced to U.S. prison.

As Ramsey describes, undocumented immigrants differ from foreign diplomats (and their families), who are largely exempt from US law. The same point applies to soldiers of invading armies, and (as Ramsey points out), possibly some members of Indian tribes who are under the jurisdiction of tribal governments traditionally exempt from most US laws (though Congress has given such Indians birthright citizenship by statute).

There is a broad, though not quite universal, consensus among experts that the Fourteenth Amendment extends birthright citizenship to children of undocumented aliens and other foreigners present in the United States, with the exception of diplomats and a few others who are not subject to US law. That agreement includes both liberal living constitutionalists (such as Michael Dorf), and conservative originalists such as Ramsey, John Yoo, and James Ho (a well-known conservative lawyer whom Trump appointed to the US Court of Appeals for the Fifth Circuit).

The expert near-consensus on this subject is backed by longstanding Supreme Court precedent, going back to United States v. Wong Kim Ark (1898). James Ho's article on this subject includes an excellent discussion of Wong Kim Ark and other relevant precedent. As the Court explained in Wong Kim Ark:

The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications... of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

While Wong Kim Ark involved legal immigrants, the logic of the Court's holding is not limited to that scenario. It applies to children of undocumented immigrants, as well, and indeed to all children born on US soil, other than those of foreign diplomats, soldiers of invading armies, and (at the time) certain members of Indian tribes. As Ho describes, the Court's ruling in that case was backed by the original understanding of the Fourteenth Amendment. For example, Senator Jacob Howard, one of the key drafters of the amendment, stated that eligibility for birthright citizenship "will not, of course, include [children of] persons 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" (emphasis added).

A few dissenting scholars, such as John Eastman, argue that birthright citizenship only applies to children of persons within the "complete" jurisdiction of the United States, which they claim applies only to those who not only are subject to American law, but also have rights and duties of citizenship, such as the right to vote and being subject to jury duty. I responded to such claims here:

[U]ltimately, [Eastman's] argument fails because it relies on a dubious distinction between "complete, political jurisdiction; and… partial, territorial jurisdiction." Eastman explains that a person subject only to the latter "does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance...."

One obvious problem with this distinction is that it is nowhere to be found in the text of the Fourteenth Amendment, which simply refers to "the jurisdiction" of the United States. This language encompasses all forms of jurisdiction, not merely that which applies only to citizens subject to "complete political" jurisdiction. The framers could have used the phrase "complete political jurisdiction" (or similar language), but did not. Another problem with the complete jurisdiction theory is that it would enable Congress to deny citizenship even to children of legal immigrants who are not yet citizens themselves. After all, they too do not get to vote or serve on juries, and some of them might not be subject to a military draft if we had one.

But perhaps the most important flaw in this argument is that it would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment, which was to reverse the Dred Scott decision's notorious holding that blacks – even those who were not slaves – could not be citizens of the United States. In his infamous opinion in Dred Scott, Chief Justice Roger Taney concluded that blacks could not be citizens in part precisely because of the sorts of distinctions Eastman relies on. As Taney pointed out, in most states free blacks could not vote, could not serve on juries, and were barred from serving in the militia (including under the 1792 federal Militia Act, which limited militia service to white men). While Taney did not deny that free blacks were subject to what Eastman calls "territorial jurisdiction," most were not subject to what he calls "political jurisdiction." If Eastman's analysis is correct, Congress..... could have prevented newly freed slaves and their children from becoming citizens simply by declaring that they were not entitled to vote, could not serve on juries, and so on.

The argument that children of undocumented immigrants and temporary visa holders are not within the "jurisdiction" of the US because their parents do not owe exclusive "allegiance" to the United States has similar flaws. Among other things, it too would deny birthright citizenship even to children of legal immigrants who have permanent resident status in the US, since such individuals still legally owe "allegiance" to a foreign government so long as they remain citizens of that nation. Jim Ho addresses this issue in greater detail.

Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order. The Naturalization Clause of Article I of the Constitution gives Congress, not the president, the power to "establish an uniform Rule of Naturalization." And, when it comes to children of aliens born on US soil, Congress has in fact exercised that power. A federal statute, 8 U.S.C. Section 1401, extends birthright citizenship to any "person born in the United States, and subject to the jurisdiction thereof." For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.

Unlike most other advocates of immigration and immigrant rights, I have significant reservations about birthright citizenship. In my view, important human rights should not be so heavily dependent on parentage and place of birth. Our current citizenship system has all too much in common with medieval hereditary aristocracy, under which freedom of movement and other crucial rights were largely dependent on ancestry. I cannot outline anything like a comprehensive alternative here. But, as a general rule, I would prefer a system under which which some rights now largely determined by citizenship (particularly freedom of movement, residency, and employment) were delinked from citizenship and made presumptively available to everyone, and citizenship itself were made easier to acquire through pathways that do not require the applicant to be a relative of a current citizen.

Trump's proposed policies, however, would not liberalize the hereditary aristocracy of citizenship. Quite the opposite, in fact. His plans to massively cut legal immigration and restrict birthright citizenship to a narrower class of children, are efforts to make the system more exclusionary, not less so. If implemented, his approach would simultaneously reduce the class of people eligible for hereditary citizenship and make it much harder to acquire the rights associated with citizenship by means other than birth. The end result would be not liberalization, but a smaller and more exclusive aristocracy.

Be that as it may, Trump's plan to curb birthright citizenship by executive order is unconstitutional, regardless of the moral aspects of the issue. If he tries to pursue the idea, it should be struck down by the courts.

UPDATE: Reason's Damon Root has a helpful post on the original meaning of the Citizenship Clause of the Fourteenth Amendment here.

UPDATE #2: I wrote this post before seeing co-blogger Eugene Volokh's post referencing James Ho's work. I also recommend this critique of Trump's proposal by Georgetown law professor Neal Katyal and prominent conservative lawyer George Conway.

UPDATE #3: I have slightly expanded the discussion of the Wong Kim Ark case in the post.

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  • Dilan Esper||

    "If Eastman's analysis is correct, Congress..... could have prevented newly freed slaves and their children from becoming citizens simply by declaring that they were not entitled to vote, could not serve on juries, and so on."

    This is key.

    If you are going to tell us that "subject to the jurisdiction" doesn't mean what Wong Kim Ark and Plyer and Prof. Somin say it means, then you need to tell us what it DOES mean. Don't just JAQ off. You have to answer the question. And it needs to be an answer that doesn't call the constitutional citizenship status of large numbers of people who are undisputed citizens into question.

    Restrictionists can't do it, which is why John Eastman (who is both a nut and a hack) is the only right wing scholar of any note who is pushing this line. Even the mainstream Federalist Society right doesn't go there.

  • Brett Bellmore||

    "And it needs to be an answer that doesn't call the constitutional citizenship status of large numbers of people who are undisputed citizens into question."

    That's either trivially easy, or you're being dishonest about whose citizenship is "undisputed". Because we're talking about the children of illegal immigrants, and possibly pregnancy tourists, nobody else. And the citizenship of THOSE children is very much disputed. Or we wouldn't be having this argument.

    Wong Kim Ark was the son of legal resident aliens. Plyer has no relevance to this question at all, being about the extent to which children who lacked citizenship or legal residency could be denied public services. I believe it was wrongly decided, but either way it's got nothing to do with birthright citizenship.

    This is going to be a question of first impression, let's not pretend there's precedent against Trump.

  • Deep Lurker||

    Did 14th Amendment citizenship apply to the children of illegally-imported slaves? That's precedent for it applying to children of illegal and allegedly-illegal immigrants.

  • Brett Bellmore||

    That would be precedent for it applying to the children of kidnap victims, anyway.

  • Dilan Esper||

    Brett:

    You just proved you are incompetent to be an appellate lawyer.

    Read the question again and try to answer it specifically. What do the words "subject to jurisdiction" mean if they ONLY exclude children of undocumented immigrants as you claim?

  • VinniUSMC||

    "Undocumented" immigrants are illegal immigrants. They are an invading army of a foreign country. Are foreign armies "subject to jurisdiction"? No.

  • NToJ||

    So you think the United States can't pass laws making it illegal for immigrants to enter the country, and to prosecute them for that? We have to hand them over to the MPs? Illegal immigrants are subject to jurisdiction.

  • M.L.||

    NTOJ -- Please apply your acumen to this issue a bit more in depth.

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

    -The Slaughterhouse Cases

    "The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."

    - Elk v. Wilkins

    "[S]ubject to the jurisdiction meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government."

    - Thomas M. Cooley, The General Principles of Constitutional Law in America

  • swood1000||

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

    According to the Supreme Court in United States v. Wong Kim Ark:

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

    (continued)

  • swood1000||

    (continued)

    This part of the 14th amendment was modeled after British law, which granted citizenship to those born on British soil except for children of diplomats and enemy aliens, so it's reasonable to assume that we were intended to have the same rule.

    [S]ubject to the jurisdiction meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.

    But then all that is needed is a statement of allegiance to the U.S. Cooley also said of an Indian who leaves his tribe:

    "He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and, as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property, and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native-born inhabitant."

    Elk v. Wilkins dealt with Indian tribes, which are a special case in which the tribe enjoys a type of sovereignty.

  • M.L.||

    Dicta. But you're right that this language from Wong may suggest a slightly different viewpoint than

    (a) the more contemparaneous Supreme Court cases noted above
    (b) the leading treatise of the time
    (c) the legislative history of the amendment, and
    (d) the text itself.

    But -- even in your quote, note that the language is LIMITED to those who are "resident" aliens and "domiciled" here. And what does that mean?

    "s Black's Law Dictionary defines the word, "domicile" means "A person's legal home. That place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning." In other words, the word "domicile," which is the word used by the Court in the Wong Kim Ark case, encompasses in its definition both "lawful" and "permanent" residence."

  • M.L.||

    As an aside, I saw that Dershowitz had a media appearance where he gave his opinion that the children of longtime illegal alien residents who are born here and then continue to live here for a time are citizens -- but that children of people who come here temporarily, such as on a tourist visa or illegally, and then give birth on U.S. soil are not citizens. You can see why he arrived at this opinion.

  • M.L.||

    Finally - no, I do not think U.S. citizenship was modeled after British common law, with respect to the 14A or otherwise.

    "The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone's Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. 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." 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."

  • NToJ||

    Slaughterhouse quote was dicta too. I don't know why you're relying on Cooley to rebut Wong Kim. He cited it, in the very article you're quoting, for the following proposition:

    "The amendment, therefore, affirms the citizenship of children born within the United States of all persons, of whatever race or color; but it does not affirm the citizenship "of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory.""

  • swood1000||

    NToJ -

    The amendment, therefore, affirms the citizenship of children born within the United States of all persons, of whatever race or color

    Here, Cooley is stressing that the intention of the 14th amendment was to give citizenship to former slaves and their children.

    but it does not affirm the citizenship "of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory."

    Cooley gives examples of people who are not subject to a "qualified and partial jurisdiction, such as may consist with allegiance to some other government." Even though he doesn't list them here he obviously also includes American Indians, despite the fact that they are "born within the United States," because the jurisdiction they are subject to is qualified and partial. Wouldn't the same be true of temporary foreign visitors who intend to return back to their own countries?

  • NToJ||

    He's citing Wong Kim approvingly, and Wong Kim involved "temporary foreign visitors who intend to return back to their own countries".

  • swood1000||

    He's citing Wong Kim approvingly, and Wong Kim involved "temporary foreign visitors who intend to return back to their own countries".

    Wong Kim Ark had a permanent domicile and residence in the United States.

  • James Pollock||

    "'Undocumented' immigrants are illegal immigrants."

    No. There's significant overlap, but the two things are not the same. There are "undocumented" people who are quite lawful, and there are illegal immigrants who have documents.

    In the first category, you have someone who lost all their possessions in a house fire or natural disaster. In the second category, you have visa overstayers.

    "They are an invading army of a foreign country."
    That's just dumb.

    "Are foreign armies "subject to jurisdiction"? No."
    You meant to say "yes", assuming you prefer to be factually correct.
    legal citation 317 U.S. 1 (1942). Look it up.

  • swood1000||

    "Are foreign armies "subject to jurisdiction"? No."
    You meant to say "yes", assuming you prefer to be factually correct.
    legal citation 317 U.S. 1 (1942). Look it up.

    They are subject to jurisdiction in that they are not barred from access to the civil courts and are subject to trial and punishment by military tribunals but, as with the Indians, they are not subject to the jurisdiction of the U.S. for purposes of citizenship.

  • Brett Bellmore||

    I didn't say they ONLY exclude children of illegal aliens. I said that's who we're talking about.

    It also excludes children of invading soldiers, children of diplomatic personnel, and children of tourists.

  • captcrisis||

    Your creative powers positively burst into arcs of shining brilliance when it comes to keeping this country as White as possible.

  • Untermensch den 2||

    A lot of commenters on this site have their Real Big Boy Law Degrees™ (which I presume they got in a Cracker Jack box) on this topic and can tell you for hours why 99% of actual lawyers are wrong. It isn't worth debating them, because the goalposts will always move to accommodate their pre-defined outcome.

  • M.L.||

    Untermensch -- Nice selective drive-by comment.

    The Volokh Conspiracy has many actual lawyers commenting here. If you were a lawyer yourself, you could differentiate among comments that are legally astute and those that are not, and you could even offer your own substantive analysis and opinion.

  • Dilan Esper||

    You still haven't given a definition. You have simply listed the people you wish to exclude.

    That's not the same.

    What does the term "subject to jurisdiction" mean? As I said, liberals have a definition that works pretty well-- that it refers to small classes of people who were considered to be born outside of sovereign powers of the United States because of the existence of another sovereign, such as an Indian tribe recognized as sovereign or a foreign country which exercised sovereign power over its consuls and ambassadors.

    If you wish to use a broader definition, then you have to say why "children of tourists" and "children of undocumented aliens" are NOT subject to US jurisdiction. I can tell you why children of a consul aren't, but you can't tell me why your categories aren't. You have just told me you want them excluded.

  • MatthewSlyfield||

    "because of the existence of another sovereign, such as an Indian tribe recognized as sovereign or a foreign country which exercised sovereign power over its consuls and ambassadors."

    And real soldiers as well.

  • phattyboombatty||

    The Court in Wong Kim Ark definitely seemed to highlight the fact that the alien parents were in the country with the permission of the United States:

    "Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States."

    Note the language "so long as they are permitted by the United States to reside here."

  • phattyboombatty||

    The Wong Kim Ark opinion also seems to make it a requirement that the parents are domiciled in the United States:

    "Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."

    Thus, is a Mexican mother who just happens to jump across the border at the last second before birth, has her baby, and then immediately goes back across the border into Mexico, subject to the jurisdiction of the United States for purposes of the 14th Amendment?

  • NToJ||

    "...and then immediately goes back across the border into Mexico..."

    In Wong Kim the parents were in the United States "at the time of his birth" but then they moved to China. They were "subject to the jurisdiction of the United States" when he was born, even if they ceased to be when they moved back to China in 1890.

  • phattyboombatty||

    "That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento Street, in the city and county of San Francisco, State of California, United States of America, and ...that, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid [and] that said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China."

    How in the world are the facts of the Wong Kim Ark case remotely like the border jumping hypothetical that I gave?? His parents had established and enjoyed a permanent residence in the United States at the time of his birth, and then continued to live in the United States for another 17 years! Regardless, the fact of leaving right after the birth is not the key detail in my hypothesis--it's the failure to establish a residence by the time of the birth that is the main point.

  • MatthewSlyfield||

    Of course you completely ignore the fact that in 1873 and earlier the US had completely open boarders. There was no federal government regulation of immigration until 1875.

    Prior to 1875, you couldn't have entered the US illegally if you tried, because there were no laws restricting entry to anyone for any reason.

    Prior to his birth, Wong Kim Arks parents had no green card or any other federal government paperwork authorizing their immigration to the US, because none such paperwork/government authorization was required and green cards didn't exist.

  • phattyboombatty||

    There's two separate points I'm bringing up here. One is that the Wong Kim Arks case seems to require that the parents have established a domicile in the United States. Immigration laws have no bearing on that point. An illegal alien can still establish a domicile in the United States whether or not permitted. This point is not really directed at undocumented immigrants, but at tourists or other temporary visitors (and the border jumping hypo I gave).

    The other point involves being in the country with the permission of the United States. I'm not ignoring the lack of border controls in the 1800's. Explaining that Wong Kim Arks parents were legally residing in the United States because there was no immigration laws they could have violated does nothing to refute my point. The Supreme Court felt the need to add "so long as they are permitted by the United States to reside here", not me.

  • bernard11||

    The14th Amendment says nothing about the parentage of the individual "born or naturalized in the United States, and subject to the jurisdiction thereof," and thereby entitled to citizenship.

    You are making stuff up.

  • NToJ||

    "The Supreme Court felt the need to add "so long as they are permitted by the United States to reside here", not me."

    I think you're misreading the quote:

    "Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States."

    The Court might have been saying that "protection of, and owe allegiance to" was connected to "permitted by the United States to reside here". But either way, what do you make of "all other aliens residing in the United States"? (I.e., aliens residing in the United States who are not "permitted . . . to reside here".)

  • NToJ||

    There is nothing in the 14A requiring residency as a condition to being subject to the laws of the United States.

  • M.L.||

    Subject to the laws is not the issue, NToJ. "Subject to the jurisdiction" had a certain meaning, explained at length in the legislative history and in more contemporaneous decisions, and supported by the text, historical circumstances, and related previous and subsequent legislation.

    Even under Wong, the court repeatedly noted that it was addressing "resident" aliens who were "domiciled" here (with the U.S.'s permission).

  • bernard11||

    Pbb,

    First, your example is idiotic. Woman jumps across the border just as she is about to give birth. Sure. happens all the time.

    Second, and even more to the point, the 14th is not concerned with whether the parents are "subject to the jurisdiction," but whether the child is.

  • M.L.||

    Yes, it does happen all the time bernard!

    Inside the shadowy world of birth tourism at 'maternity hotels'

  • bernard11||

    We have different definitions of "all the time."

    Not to mention there seems to be other legal issues around this practice, as well as the fact that it looks way too expensive for many people, especially poor ones, to do it.

  • CE||

    Disputed by whom? Many thousands (millions?) of children of illegal immigrants have enjoyed full citizenship status for decades, as have their children. Who could claim that depriving them of that status without an act of Congress is fair and proper and legal and consitutional? It's not just torturing the law and precedent and original intent, it's taking a match to it as you throw it in the shredder.

  • Placeholder Name||

    The problem with this argument is that Congress could NOT declare that newly freed slaves were not entitled to vote because the 15th Amendment was part of the post-war constitutional amendment package. The drafters of the 14th Amendment knew that the 15th Amendment was going to be there too and that, arguably, makes all the difference.

  • ||

    Bingo.

    Dred Scott was wrongly decided, so that argument is irrelevant.

    "Subject to the jurisdiction" clearly meant full jurisdiction, because that's what they wanted slaves to be.

    Children of immigrants are not under the full jurisdiction of the US.

    This is an easy problem to solve- but people would rather justify their ends rather than follow their means.

  • Dilan Esper||

    What does "full jurisdiction" mean?

  • Voize of Reazon||

    "Full jurisdiction" in these discussions is an appeal to statements during the senate debates on the 14th. Senator Jacob Howard of Ohio said

    I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction," as here eimployed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

    Senator Lyman Trumbull of Ilinois in turn had stated

    The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the comlpete jurisdiction thereof."

    and

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

    These are the bits often quoted during arguments about this amendment.

  • Voize of Reazon||

    There is a problem though, that these statements occurred in the context of a discussion largely about Indians (which you can read yourself starting here), and viewing them out of that context changes their meaning. Senator Trumbull continued

    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.

    and

    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?

    He is talking about whether those Indians have an obligation to obey US law, not whether there is some broader notion of jurisdiction that would exclude illegal immigrants.

  • M.L.||

    People who disagree with me are nuts and hacks!! Blah, blah, [total lack of substantive argument]

    Sorry, you're the one who is coming off as a hack.

    So, what does the clause mean? Try this:

    "When the Supreme Court first confronted the language, it reached the identical conclusion as I have. "The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States," it wrote in The Slaughterhouse Cases, decided in 1872 (emphasis added). Granted, that language was dicta, but it was re-affirmed a decade later in Elk v. Wilkins, in which the Court held that "subject to the jurisdiction" meant that one be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." And this view was shared by Thomas Cooley, the leading treatise writer of the day. "[S]ubject to the jurisdiction," he wrote in The General Principles of Constitutional Law in America, "meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.""

  • swood1000||

    but it was re-affirmed a decade later in Elk v. Wilkins

    The problem is that Elk dealt with Indian tribes, who were considered to have their own sovereignty, so the Indians were considered to be currently to be subject to the jurisdiction of this other sovereign, as well as not born in the U.S. This doesn't carry over easily to illegal immigrants.

    And this view was shared by Thomas Cooley, the leading treatise writer of the day. "[S]ubject to the jurisdiction," he wrote in The General Principles of Constitutional Law in America, "meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.""

    Under this rule it would seem that all illegal immigrants would need to do would be to declare their allegiance to the U.S., which might even be assumed by the act of immigrating here. Cooley also said of an Indian who leaves his tribe

    "He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and, as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property, and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native-born inhabitant."
  • M.L.||

    swood -- This is not correct.

    While Indians did indeed owe allegiance to their sovereign tribes, they were also "most clearly subject to our jurisdiction, both civil and military" as the 14A drafters noted at the time. Congressional Globe, 39th Cong., 1st Sess., 2893 (May 30, 1866).

  • David Nieporent||

    The 14A drafters did not note that at the time. That is a quote from one senator.

    Trumbull responded by saying "[I]t is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin," and then he explained exactly why Doolittle was completely wrong, as quoted by Voize of Reazon above. Indians who lived on reservations were not subject to the jurisdiction of the U.S. The U.S. had to deal with them through treaties with their tribes, not by applying regular law to them.

  • M.L.||

    Yes -- Trumbull's response was that Doolittle was wrong in suggesting that Indians would be included:

    Even though Indians were born on U.S. soil, and subject to its laws in some sense, Trumbull stated clearly that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction; "[n]ot owing allegiance to anybody else" !!

  • Voize of Reazon||

    That quote is actually on page 2892. It was not uttered by one of "the 14A drafters", but by Senator James Rood Doolittle of Wisconsin. Doolittle proposed an amendment to the amendment, adding the phrase "excluding Indians not taxed", because he felt the courts would find that the United States exercised sufficient control over the tribes that they would be considered "subject to the jurisdiction thereof". This is what spawned the discussion of "full jurisdiction", where Howard and Trumbull argued against his proposal, which was defeated by a vote of 30-10.

  • M.L.||

    Point taken -- Doolittle was not a drafter -- nonetheless, this discussion illustrates perfectly why "jurisdiction" here did not mean simply subject to U.S. laws; rather, it meant not "owing allegiance to anybody else" as Trumbull stated, i.e. not a "foreigner" or "alien" in Howard's words.

  • Voize of Reazon||

    I don't see it that way at all, Trumbull made a big deal out of the fact that treaty Indians were not susceptible to all US law though there were instances where they might be susceptible to some. He kept returning to whether the US controlled these people directly or through treaties with their "other" sovereign. His view of allegiance seems to be inextricably linked to a duty to fully obey laws. The lack of that duty is the common thread between diplomats, invading soldiers, and treaty Indians, but not illegal immigrants.

    To extend his logic to illegal immigrants you would have to conclude that the US doesn't have legal authority to enforce its laws fully against, say, Mexican border jumpers and must entreat with Mexico instead.

  • M.L.||

    With respect to illegal aliens, I'm not prepared to say that anyone who is born on U.S. soil to parents who are not lawfully present, in perfect in compliance with all immigration laws, is not a U.S. citizen. There seems to be a concept that if an immigrant becomes permanently domiciled here, then there has been mutual consent (albeit implicit) whereby such immigrant has voluntarily submitted to the full jurisdiction of the U.S.

    However, it does seem clear to me that "subject to the jurisdiction" originally meant something more than merely being subject to any U.S. law, merely by nature of being within the territory. The drafters believed that it was "simply declaratory" of current law, and hence that it captured the Civil Rights Act which excluded those "subject to any foreign power," as well as "Indians not taxed" which is why they didn't need the latter language which Doolittle had proposed.

  • M.L.||

    "Under this rule it would seem that all illegal immigrants would need to do would be to declare their allegiance to the U.S., which might even be assumed by the act of immigrating here. "

    That seems partly correct, but the missing piece is that the U.S. has the right to consent, or not, to the act of immigration and the submission to the full political jurisdiction of the U.S.

  • swood1000||

    While Indians did indeed owe allegiance to their sovereign tribes, they were also "most clearly subject to our jurisdiction, both civil and military" as the 14A drafters noted at the time. Congressional Globe, 39th Cong., 1st Sess., 2893 (May 30, 1866).

    But so are diplomats subject to our jurisdiction in that they must drive on the left side of the road while they are here but it was diplomats who were addressed by the "subject to our jurisdiction" phrase. See my comments above.

    In any event, it can't be denied that the Indians provided a special case in this country such that analogies to all non-citizens cannot necessarily or easily be made.

    That seems partly correct, but the missing piece is that the U.S. has the right to consent, or not, to the act of immigration and the submission to the full political jurisdiction of the U.S.

    That is not mentioned in the Cooley quote I supplied (which can be found in the Elk v Wilkins dissent of Justice Harlan), though I acknowledge that Cooley was not referring to a person who was in this country without the consent of the U.S.

    In INS v. Rios-Pineda (1985), the Supreme Court unanimously agreed that a child born in the U.S. to an undocumented immigrant was in fact a U.S. citizen.

  • Voize of Reazon||

    INS v. Rios-Pineda held that the Board of Immigration Appeals had discretion to deny the Rios-Pinedas' request to reopen their case. It did not decide anything about the childrens' citizenship, as that question was not before the Court.

  • swood1000||

    It did not decide anything about the childrens' citizenship, as that question was not before the Court.

    I agree that the statement that a child born here to an undocumented immigrant is a citizen was dicta, just like the statement in the Slaughterhouse Cases that the phrase, "subject to its jurisdiction" was intended to exclude subjects of foreign States born within the United States.

  • M.L.||

    "dicta, just like the statement in the Slaughterhouse Cases"

    Yes, it is dicta -- but dicta that is very relevant to the question of the original public meaning of "subject to the jurisdiction." And the interpretation set forth is supported by the text, the legislative history, and other circumstances and sources.

  • M.L.||

    It's abundantly obvious that "subject to the jurisdiction" did not only address diplomats. If it did they could have said so.

    Instead, it also addressed Indians, and excluded all those "subject to any foreign power" as the 1866 Civil Rights Act provided.

  • swood1000||

    Instead, it also addressed Indians, and excluded all those "subject to any foreign power" as the 1866 Civil Rights Act provided.

    But what constitutes being subject to any foreign power? Part of the reason for the War of 1812 was the British practice of impressing American sailors into their navy. They claimed that all people who were once British subjects were always British subjects, and therefore the Navy could impress them. However we claimed that British citizenship could be renounced and that these men were therefore no longer subject to British power.

    So it would seem that to be consistent we would have to recognize that illegal aliens who renounce their former citizenship, or express their intention to be Americans only, are no longer subject to any foreign power, right?

  • BaronGouldianFinch||

    I would note that women, until 1920, could not in many cases vote, serve on juries, or be subject to conscription, but no-one argued they were not US Citizens. Nor, if (say) an American-born woman residing in a US State (say, New York) married and had a child in 1850 with a foreign national (say, a resident of the UK) would any reasonable person say that child shouldn't be considered a natural born US citizen.

  • Brett Bellmore||

    Another commenter has, I think, identified the proper dividing line: Are you subject to prosecution for treason?

    A US citizen, or legal resident alien, has sufficient allegiance to the US that, if they act against the country's interests in a sufficiently serious way they are subject to prosecution for treason. The citizen by virtue of citizenship, the legal resident alien by virtue of an explicit legal adoption of that allegiance.

    Diplomatic personnel, illegal aliens? Nope. Their allegiance is to a different country, they might be prosecuted for something else, but can not be guilty of treason against the US. They're not just not citizens, they have no allegiance to the US.

  • TheAmazingEmu||

    Where are you getting that distinction from? Point to one case or statute that suggests lawful permanent residents can be prosecuted for treason and not illegal immigrants. There is no requirement that an immigrant who is not a citizen not hold loyalty to their home country and there is no reason to suspect a priori that a person who left a country they didn't want to be in to come here even when they weren't eligible to enter holds greater loyalty to the country they left. On top of that, you left out a whole category of people - people who entered lawfully on non-immigrant visas. Are their children entitled to US citizenship? I haven't heard a single person here argue they aren't, but they, almost by definition, hold loyalty to their home country. When they came here, they had to promise to go back one day.

    If you can somehow explain that distinction, now explain where the "treason exception" comes from in the 14th Amendment.

  • Brett Bellmore||

    There are few enough treason prosecutions that there's no case law to speak of, but citizens of a foreign country, who have not formally established any sort of legal allegiance to our own, are never prosecuted for treason, because treason is a crime of betrayal, and you can't betray an allegiance you never had in the first place.

  • Sarcastr0||

    Babies are notorious for their lack of a allegiance. Probably why the 14th talks about allegiances so much.

  • bernard11||

    Which has nothing at all to do with TAE's question.

    Where is the treason exception found?

  • MatthewSlyfield||

    Almost no one has been prosecuted for treason because it's the only crime defined in the constitution and the constitutional definition makes it very difficult to prove treason (you have to have two eye witnesses to an overt act of treason, or a confession in open court).

    You have exactly zero legal basis for your assertion that a non-citizen immigrant, in the country legally or not, would be immune to a charge of treason. There is absolutely nothing in the constitutional definition of treason that makes citizenship or legal immigration status a requirement of treason.

    Note: when both the original constitution including the definition of treason and when 14A were ratified, there was no such thing as illegal immigration, because we had completely open boarders.

    The first actual restrictions on immigration (prohibiting entry of prostitutes and convicts) weren't enacted until 1875.

  • kramartini||

    The whole point of defining treason in the Constitution was to exclude many acts defined as High Treason under English law (i.e. fornication with "the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir").

  • Dilan Esper||

    Brett:

    Green card holders cannot be prosecuted by the US for treason. It applies only to citizens. This is black letter law.

  • MatthewSlyfield||

    Cite required. Where and how is this specified. Treason as a crime is defined in the constitution itself, and citizenship is not mentioned anywhere in the clause of the US constitution that defines treason as a crime.

  • Dilan Esper||

    The language "allegiance to the United States" in the treason statute appears in many immigration cases and has been extensively litigated. It means a US national and excludes permanent residents.

    Google, for instance, Fernandez v. Keisler.

  • Dilan Esper||

    To be a bit more clear. It is possible fir someone to become eligible for a treason prosecution by taking an oath of allegiance (e.g., a member of the military). But the vast majority of LPR's do not fall within the treason statute.

  • MatthewSlyfield||

    "The language "allegiance to the United States" in the treason statute appears in many immigration cases and has been extensively litigated."

    How is that statute not unconstitutional, given the definition of treason in the constitution itself?

  • Dilan Esper||

    Because the Necessary and Proper Clause allows Congress to pass a statute to implement the constitutional definition.

    And because allegiance has always been an element of treason anyway.

  • swood1000||

    How is that statute not unconstitutional, given the definition of treason in the constitution itself?

    The Constitution says what constitutes treason and stipulates the requirement of two witnesses:

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    But how is this contradicted by a statute adding another requirement, that the person must owe allegiance to the United States?

    18 U.S. Code § 2381 – Treason

    Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

    Do illegal immigrants owe allegiance to the United States upon setting foot in the country?

  • David Nieporent||

    Do illegal immigrants owe allegiance to the United States upon setting foot in the country?

    Possibly not, but upon taking up residence here, definitely yes.

  • MatthewSlyfield||

    "But how is this contradicted by a statute adding another requirement, that the person must owe allegiance to the United States?"

    SCOTUS has ruled in the past that neither congress or the states can add or remove requirements for holding congressional offices or the presidency by statute.

    By the same reasoning, Congress can neither expand nor contract the definition of Treason as specified in the constitution.

  • David Nieporent||

    The language "allegiance to the United States" in the treason statute appears in many immigration cases and has been extensively litigated. It means a US national and excludes permanent residents.

    Google, for instance, Fernandez v. Keisler.

    I think you're wrong. What the language "allegiance to the United States" means with respect to the crime of treason has not been heavily litigated; Fernandez v. Keisler was not interpreting the treason statute, but the INA, and indeed was doing so through the lens of Chevron deference.

    But Carlisle v. United States was a Supreme Court case, not a 4th Circuit case, and it expressly stated that resident aliens owed allegiance to the U.S. and were subject to the laws against treason.

  • Dilan Esper||

    Carlile was not a treason prosecution and involved a very weird factual predicate (traders with confederates who got pardoned and wanted their seized property back).

  • David Nieporent||

    Fernandez v. Keisler wasn't a treason prosecution either. But Carlile did involve treason-related-issues, and (as I noted) expressly stated that resident aliens did owe allegiance to the U.S. in the context of treason.

  • swood1000||

    Carlile was not a treason prosecution

    From the syllabus of the Supreme Court case of Carlile v United States:

    Aliens domiciled in the United States owe a local and temporary allegiance to the government of the United States; they are bound to obey all the laws of the country not immediately relating to citizenship during their residence in it, and are equally amenable with citizens for any infraction of those laws. Those aliens who, being domiciled in the country prior to the rebellion, gave aid and comfort to the rebellion were therefore subject to be prosecuted for violation of the laws of the United States against treason and for giving aid and comfort to the rebellion.
  • TheAmazingEmu||

    So you're saying that the statutory definition of treason controls this Constitutional issue rather than the Constitutional definition? So, if Congress were to abolish its treason laws entirely, no one born in the United States would get citizenship?

  • kramartini||

    But they can be charged with espionage, and executed for that. (And I guess also deported...)

  • Voize of Reazon||

    After looking into this question some time ago I concluded that part of the problem was that the word "allegiance" historically has two related but distinct meanings. First, it meant the duty of loyalty owed to a sovereign, and the abrogation of that duty constitutes treason. But secondly it meant the duty of obedience to a sovereign. This is the meaning that is coextensive with "subject to the jurisdiction". The hypothetical permanent resident has an allegiance of the second kind to the government of their adopted home even though they have not renounced their allegiance of the first kind to their previous sovereign.

  • Lee Moore||

    secondly it meant the duty of obedience to a sovereign. This is the meaning that is coextensive with "subject to the jurisdiction". The hypothetical permanent resident has an allegiance of the second kind to the government of their adopted home even though they have not renounced their allegiance of the first kind to their previous sovereign

    I think this is the point. I am entirely unconvinced by the "full jurisdiction" argument. The Wong Kim Ark case goes into the English common law question of "allegiance" and I think comes down very clealy on this second, lesser sense. But I am not 100% convinced that that resolves the question in favor of illegal immigrants now. Wong Kim Ark acknowledges exceptions for diplomats and their children, but also carves out invading armies in those parts of the King's territory that are temporarily out of his control. It's not at all hard to see a further carve out - unconsidered at the time because illegal immigration was not a thing - for those who are on the territory that the King does control, but who are present without his permission, indeed, directly contrary to his express command to stay away.

  • Lee Moore||

    After all, invading soldiers are, in principle, legally obliged to obey the King's commands even in the parts of his territory that the King has lost control of. It's just that they won't. Illegal immigrants can be seen as folk who are in an analogous position - people deliberately flouting the King's command to stay out of his territory. That doesn't mean they are not subject to the King's law - as are invading soldiers if they're caught - but it may put them into an analogous position on the "subject to the jurisdiction" - understood as allegiance - point.

  • James Pollock||

    "Another commenter has, I think, identified the proper dividing line: Are you subject to prosecution for treason?"

    Since the only people subject to prosecution for treason are people for whom probable cause exists to believe they committed treason, you've just removed the citizenship from pretty close to every American, including yourself (unless you have something you'd like to confess).

    In short, that's a dumb argument.

    "Diplomatic personnel, illegal aliens? Nope. Their allegiance is to a different country"

    Wait, back up. You're asserting facts not in evidence.
    Note that some illegal immigrants have, in fact, chosen to enlist in the US military forces and in so doing have sworn an oath to uphold and defend the Constitution of the United States. Then you come along and state, without evidence, that they have no alliegance to the U.S.?

  • swood1000||

    In short, that's a dumb argument.

    Get serious. Someone not subject to prosecution for treason cannot be charged with treason, no matter what acts he committed.

  • NToJ||

    It's an invented distinction that happens to conform to the result you want. But lawful permanent resident aliens don't have to take an oath of allegiance to the United States anyway. Their allegiance is to another country.

  • MatthewSlyfield||

    "But lawful permanent resident aliens don't have to take an oath of allegiance to the United States anyway."

    Neither do the vast majority of US Citizens.

  • CE||

    But you're thinking of the illegal parents, not the legal child, who under current law and practice, could be charge with treason, when they are old enough at least.

  • JoeBlow123||

    "But, as a general rule, I would prefer a system under which which some rights now largely determined by citizenship (particularly freedom of movement, residency, and employment) were delinked from citizenship and made presumptively available to all, and citizenship itself were made easier to acquire through pathways that do not require the applicant to be a relative of a current citizen."

    All the well meaning in the world will not save the USA from massive Balkanization if such proposals were carried out. Color me disappointed open borders proposals of all stripes seem to be the only polite opinion to hold in academia and the media :/

  • Brightly||

    Ilya is one of those that subscribes to the ideals of a very naive and suicidal libertarianism in that everyone should have the freedom to go where ever they chose, ignoring that with or without the right to vote transient populations have significant power to upend a nation's political consensus and direction. Where armies do it with force, mobile and transient populations do it with self created humanitarian crisis'es. I wonder, what is his plan when we finally import enough socialists that finally become a socialist nation?

    I reject the idea that anyone has the right to march into your nation and change the way you do things to fit their preferred political system. It is altogether woolly-headed idealism.

  • Kkaap||

    Woolly-headed idealism that was the official policy of the US till 1875, and for all intents and purposes, mostly remains the case in practice to this day. Our immigration laws stop very few unskilled laborers at the end of the day. Skilled immigrants are mainly the ones deterred at this point by the arbitrary caps.

    Immigration is driven by market forces like anything else. When there is a demand for labor that immigrants can supply, they will come. Like the war on drugs, if the government bans the practice, that part of the labor market is driven underground.

    I would say those that seek to restrict immigration on a large scale or based on anachronisms like medieval aristocracy like are the nativist idealists who think that the government outlawing a practice there is demand for will magically make it go away. Good luck with that sir.

  • Brightly||

    "Woolly-headed idealism that was the official policy of the US till 1875"

    No it wasn't. For instance, they did not let you immigrate if you were sick or infirm. And those who made the attempt were doing it legally.

    "Our immigration laws stop very few unskilled laborers at the end of the day"

    "Skilled immigrants are mainly the ones deterred at this point by the arbitrary caps."

    The debate over who is allowed to immigrate is a valid political question, not one that leftists and free-movement libertarians get to decide unilaterally for all of us.

    "I would say those that seek to restrict immigration on a large scale or based on anachronisms like medieval aristocracy like are the nativist idealists who think that the government outlawing a practice there is demand for will magically make it go away. Good luck with that sir."

    Nice word salad, but in the end our problems are principally with enforcement. To say that we cannot successfully combat illegal immigration and we should give up per your preference is simply nonsense.

  • James Pollock||

    "ignoring that with or without the right to vote transient populations have significant power to upend a nation's political consensus and direction."

    So do NON-transient populations. I guess that's ONE argument to withhold citizenship from people just because they were born here.

    Obviously, I should still be allowed to live here, because I am a free-thinking American. But all those people who disagree with me should be kicked out, because they might upend the nation's political consensus and direction.

    .

  • Brightly||

    "So do NON-transient populations. I guess that's ONE argument to withhold citizenship from people just because they were born here."

    No argument from me. Jus Soli citizenship is a broken system..

    "Obviously, I should still be allowed to live here, because I am a free-thinking American. But all those people who disagree with me should be kicked out, because they might upend the nation's political consensus and direction."

    Though you are obviously trying to use these words as a criticism, you fail miserably at doing so. If you are a citizen, you have a right to be here. If you aren't, you do not.

  • NToJ||

    "I reject the idea that anyone has the right to march into your nation and change the way you do things to fit their preferred political system. It is altogether woolly-headed idealism."

    Ok, and when you successfully convince enough people, maybe you can get a law passed to prevent illegal immigration. Good luck with that.

  • CE||

    Give us your poor, your huddled masses yearning to breathe free not good enough any more?

  • swood1000||

    Give us your poor, your huddled masses yearning to breathe free not good enough any more?

    Yes, we still want them. We have just established an orderly process. Is it unreasonable to expect people to wait their turn in line?

  • Brett Bellmore||

    It's true that Trump can't end birthright citizenship for the children of illegal aliens with an EO.

    What he can do is tee up a court case that possibly establishes that they never were entitled to it in the first place. Which is not the same thing, but isn't nothing either.

    Ilya, the case for the children of illegals not being entitled to birthright citizenship isn't rock solid. But you're as aware as anyone that far weaker cases have prevailed before the Court. Sometimes with your enthusiastic support!

    So you're not opposed to this litigation because the case is weak. You're opposed to it because you don't like the cause. Well, fine, you're entitled to your own view of what the best policy would be, even as I'm entitled to think that view wrong.

    But don't let it color your evaluation of Trump's chance of prevailing. It isn't a rock solid case, but it isn't frivolous.

    We know that birthright citizenship isn't available to the children of just anybody. Members of the indian tribes were naturalized by statute, not birthright. Diplomatic personnel.

    To be continued...

  • Brett Bellmore||

    If an army were to invade the US, and some of the soldiers were pregnant, would birthright citizenship apply to those children? Even if it were a deliberate military strategy? Likely not. Are people who are present in the US contrary to our laws, sometimes for the specific purpose of having their children here even if we don't want them to, sufficiently analogous to an invading army?

    There's a line, and we're arguing about where it belongs. Trump is setting things up to have that argument out formally. And it's about time.

  • TheAmazingEmu||

    Brett Bellmore, the invading army is clearly not subject to US jurisdiction. In fact, it's the clearest example. At least diplomats might be subjected to some laws (probably not, but it's ambiguous). Invading armies are under no obligation to follow the laws of the occupied territory.

  • lhfry||

    So what is the definition of "invading army" Perhaps Trump is looking at this phrase which provides for an exception to the birthright citizenship rule: "....enemies within and during a hostile occupation of part of our territory...."

  • TheAmazingEmu||

    I would accept that definition of an invading army but not your interpretation of reality. No use of military force has been authorized and, last I checked, immigrants are placed in removal proceedings, prosecuted in criminal courts, and receive due process of law. All of this suggests that the United States is not treating this as a situation of a sovereign levying war. I'd also suggest that, if we were talking about enemy soldiers, there would be many violations of the Geneva Conventions when they were prosecuted criminally rather than simply held as prisoners of war.

  • Brett Bellmore||

    It's not that an invading army is under no obligation to follow the laws of the invaded country, so much as that it affirmatively rejects any obligation to follow them.

    As do illegal immigrants, note: They violate our immigration laws, they work illegally, they procure false ID in order to live their lives in a country they're not supposed to be in. When caught, and given hearings to attend, they flee instead.

    They reject the jurisdiction of our laws every bit as much as any invading soldier.

  • bernard11||

    "Rejecting" the jurisdiction of the United States - whatever the hell that means - doesn't mean you are not subject to it.

    By your argument a bank robber who flees has "rejected" that jurisdiction. Doesn't help when the police catch up.

  • chemjeff radical individualist||

    So by your standard, ALL criminals of any type are analogous to an "invading army" because all of them violate laws of one type or another.

    Just say it Brett: you make strained analogies to make illegal immigrants out to be worse than they really are because it fits your narrative.

  • MatthewSlyfield||

    No, what makes an invading army not subject to US jurisdiction is that they are an organized, uniformed force acting under the orders and active control of a foreign government.

  • phattyboombatty||

    Matthew, remove the "uniformed" qualifier. If the Nazi's had sent a squad of 100 soldiers to sneak into the United States under cover of darkness in civilian clothing to attack the country, they would also be considered an invading army.

  • MatthewSlyfield||

    "If the Nazi's had sent a squad of 100 soldiers to sneak into the United States under cover of darkness in civilian clothing to attack the country, they would also be considered an invading army."

    If they had done that, under the Geneva convention, those soldiers would be considered illegal combatants and would be subject to summary execution without trial. They would also be subject to prosecution for espionage.

    So, if they came here in civilian clothing, they would in fact be subject to US jurisdiction.

  • BaronGouldianFinch||

    Actually the Nazis DID send a squad of soldiers to sneak into the United States. Operation Pastorius. If you include both submarine crews you'd probably get about 100 men total although a smaller number of eight actually landed. At least two were US citizens. The ones who landed on US soil were arrested, convicted and sentenced to death (Ernst Bulger turned himself and the others in and had his sentence commuted to life imprisonment).

    Two men were landed in a later operation and were arrested by the FBI also.

  • Voize of Reazon||

    No, "lawful combatant immunity" is a thing, and the Third Geneva Convention provides that a prisoner of war is subject only to the same military law that would apply to a member of the defending forces. This applies to their behavior before capture as well as after.

  • TheAmazingEmu||

    If a pregnant person commits a grand larceny and then gives birth to a child, are they also not subject to the jurisdiction of the United States?

  • James Pollock||

    "Invading armies are under no obligation to follow the laws of the occupied territory."

    Oh, no? What happens to American soldiers who go off-base in Okinawa and break Japanese laws?

    Invading armies are (in most cases) acting under treaty that grants uniformed soldiers acting under orders different treatment when captured. If they SUCCESSFULLY occupy territory, it no longer under the jurisdiction of the previous sovereign because it is no longer part of the sovereign. If Canada sends out troops in force and captures all of Montana, then Montana is part of Canada and a U.S. court has no jurisdiction. If Canada sends out one truckload of troops, and they get spread out and captured one by one, then they can (and will) be held under U.S. jurisdiction.

  • Voize of Reazon||

    Although many Okinawans object to the US military presence, those soldiers are there with the permission of the Japanese government. You might argue that the permission was originally not freely given, but Japan has had plenty of opportunity to change its mind. Of course that leads to anothe Okinawan complaint, that Tokyo sacrifices their wellbeing to appease Washington.

  • apedad||

    "What he can do is tee up a court case that possibly establishes that they never were entitled to it in the first place."

    Just ANOTHER example of your hypocrisy.

    Aren't you guys always squawking about judicial activism and how the dems use the courts to make legislative changes.

    And yet here you are doing EXACTLY that.

    Pathetic...

  • Brett Bellmore||

    I suppose it's possible some people are guilty of that sort of hypocrisy, but it's not as common as you imagine, and I'm certainly not guilty of it.

    I don't object to judicial "activism", judges are supposed to actively enforce the law. I object to their actively enforcing their own policy preferences instead of the law, or passively permitting violations of the law, but never to "activism" by itself.

    This concept of "judicial activism" you're appealing to isn't actually held by many conservatives, and those few are actually radicals who object to having an enforced Constitution. Mostly it's just a straw man liberals use to attack conservatives.

  • apedad||

    Mostly it's just a straw man conservatives use to attack liberals.

    FTFY

  • OtisAH||

    "Others may be guilty of hypocrisy, but I, surely, am not."

    This guy. Today's comedians could learn something from this guy. Watch out, Dennis Miller, your tentative hold on a career is at risk!

  • Brett Bellmore||

    Very few people are guilty of that particular hypocrisy, since it amounts to being hypocritical in terms of a position the left attributes to the right, rather than a position the right actually holds.

  • Jerryskids||

    What he can do is tee up a court case that possibly establishes that they never were entitled to it in the first place.

    Chevron deference FTW! Yes, let's overturn over a century of the understanding of the law because it's subject to interpretation and who are the Supremes to second-guess executive branch decisions on how to interpret it? Just because Congress and the President and the Supreme Court have clearly agreed for years and years and years that birthright citizenship is bestowed by the 14th is no reason to stick with silly old customs and traditions and the reasoning of old dead white men.

  • Kkaap||

    It's rock solid. I don't see any respectable legal thinkers stating otherwise.

    An EO wouldn't even tee up a case of first instance regarding birthright citizenship for illegal aliens under the constitution (even if the 14th was ruled to not cover illegal immigrants, the practice would remain under federal statute). The question of whether the president has the authority to issue the EO would be at issue. The answer to that question is obvious.

  • apedad||

    "Eastman explains that a person subject only to the latter 'does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance....'"

    Voting, serving on a jury and being drafted into the military have zero constitutional requirements to be a citizen or even be here in the country legally so Eastman's argument means diddly/squat.

    And the treason issue is simply a non-starter.

    Art III, S3 states, "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

    Note it says Person not citizen.

    This is a dumb issue Trump is using to fire up is base and deflect from other issues, and is otherwise totally meaningless.

  • bernard11||

    This is a dumb issue Trump is using to fire up is base and deflect from other issues, and is otherwise totally meaningless.

    It's worse than that. This like the whole caravan business, is just a way to stoke fear and bigotry for political advantage. It's a campaign tactic reminiscent of Jim Crow politicians railing against blacks.

  • chemjeff radical individualist||

    That is all Trumpism is. Achieving power at the expense of the most powerless and most easily demagogued segments of our society.

  • Smooth Like a Rhapsody||

    Chemjeff
    Why do you hate white women?

  • donojack||

    You forgot "vulnerable." Never forget "vulnerable."

  • donojack||

    That wily old fox Trump. Creates the caravan so that he can demonize the poor victims, those most vulnerable victims, of his evil scheme.

  • Sarcastr0||

    The Mexican military-assaulting young male illegal disease-train that's going to blast past our border on election day is indeed a creation by Trump.

  • donojack||

    Who do you think created the caravan? And for what purpose? Maybe it was the alt-right but I don't think so. It seems to me that the libs thought they had gotten so much mileage out of the family separation bs that they would try to create something like it right before the mid-terms.

  • Sarcastr0||

    Thanks to Trump's constant lying about this issue, we need to ask which caravan, the one in his mind, or the one in reality.

    And now the liberal-funded one in your mind, I guess.
    It's nowhere near the southern border, so if the liberal plan was to have another family seperation crisis near the midterms (note: the old one is still going on), those libs screwed it up big time.

  • donojack||

    I suppose in your mind this a spontaneous act of like-minded Hondurans just seeking asylum from, well what, low wages? They are getting buses for them now. Who is providing these buses? Granted it is stupid enough as a liberal plan to be concocted by someone on the right, but that is unlikely.

  • donojack||

    Also do you think they should be allowed to enter?

  • Sarcastr0||

    They should be allowed to follow the usual US asylum process. Ideally, the strict one under Obama, not the 'never happen' one under Trump.

  • donojack||

    The asylum requests are pretexts for the most part, especially given that they have rejected Mexican asylum offers. This is just a political stunt and not a very good one at that.

  • ReaderY||

    The inculturation here is that one can make these sorts of claims only if one takes some sort of textualist or originalist position. From a living constitutionalist perspective, all bets are off. "Subject to its jurisdiction" could easily be read in a modern, pragmatic (you know the usual adjectives) manner, one designed to foster the direction the opinion-maker thinks society ought to go in.

    It's true that living constitutionalists have tended to be liberals who have tended to want to foster society developing in liberal directions. But there's no reason things should stay that way. Living constitutionalism is itself a living doctrine, by its nature not limited to the original intent of its framers. It, like the constitution itself, could easily be re-interpreted in a completely different direction. There's no guarantee what you'll get.

  • ReaderY||

    The inculturation here is that one can make these sorts of claims only if one takes some sort of textualist or originalist position. From a living constitutionalist perspective, all bets are off. "Subject to its jurisdiction" could easily be read in a modern, pragmatic (you know the usual adjectives) manner, one designed to foster the direction the opinion-maker thinks society ought to go in.

    It's true that living constitutionalists have tended to be liberals who have tended to want to foster society developing in liberal directions. But there's no reason things should stay that way. Living constitutionalism is itself a living doctrine, by its nature not limited to the original intent of its framers. It, like the constitution itself, could easily be re-interpreted in a completely different direction. There's no guarantee what you'll get.

  • Sarcastr0||

    So you hate it as unprincipled but you'll embrace it...because you're unprincipled?

  • Ghost of Patrick Henry||

    What is the difference between a soldier invading America and having a child during an occupying period and an illegal immigrant doing the same thing?

    Were the children of the Nazis born citizens of France or the USSR in 1942?

    The test must be naturalized or citizen parents, not physical presence.

    This calls to mind the end of the Roman Empire in the 4th and 5th centuries. The Goths were (inexplicably) invited into the Empire, refused to assimilate and overwhelmed the social and economic resources of Rome.

    http://www.bbc.co.uk/history/a.....e_01.shtml

    History repeats itsrlf for those who dont read and understand it.

  • Sarcastr0||

    Odd the wise Founders weren't as worried as you are about Mexican neo-Goths.

  • Smooth Like a Rhapsody||

    Why is that odd?
    We did not share a common border with "Mexico" in 1789.

  • David Nieporent||

    Not sure why you're talking about 1789, when the issue is the 14th amendment. And we did indeed share a border with Mexico when the 14th was ratified.

  • mad_kalak||

    Because Sarcasto references the Founders, and Smooth should have pointed out what you pointed out.

  • Sarcastr0||

    From both is blog and law school, common parlance allows that Founders includes the drafters of the 13th, 14th, and 15th.

    Sorry for the lack of clarity, but as David Nieporent points out, that only strengthens my larger point that Ghost of Patrick Henry's policy doesn't quite align with our Constitution.

  • donojack||

    I guess that makes Gregory Watson a Founder then. Who knew?

  • mad_kalak||

    The Founders where explicitly aware of the cyclical nature of the rise and fall of civilizations, Rome and Greece in particular, and sought to avoid the problems of the late Roman Republic and Athenian direct democracy, and the late Roman imperial weakness. To that effect, they weren't worried about (at that time) Spanish mobs, but they did worry about mobs. The Alien and Sedition Acts should show you that.

  • MatthewSlyfield||

    "What is the difference between a soldier invading America and having a child during an occupying period and an illegal immigrant doing the same thing?"

    The soldier is here wearing the uniform of, and and is acting under the orders and positive control of a foreign government, an illegal immigrant is not.

  • bevis the lumberjack||

    "Were the children of the Nazis born citizens of France or the USSR in 1942?"

    No. Had the American 14th Amendment applied to France or the USSR, they wouldn't have been citizens because the Nazis were an invading army.

  • bernard11||

    France does not have birthright citizenship, and neither did the USSR.

    Among other problems with your analogy.

  • TwelveInchPianist||

    "France does not have birthright citizenship..."

    This is my favorite argument in favor of birthright citizenship.

  • David Nieporent||

    France did apply jus sol/ii. It has a modified form of it now, but it had it. But of course it didn't apply to invading armies, so the issue is moot.

    ("Jus soli" sounds a lot more lawyerly and less demagogic than "birthright citizenship.")

  • donojack||

    I always use French phrases when I want to impress my friends. That and Latin.

  • TheAmazingEmu||

    To my knowledge, France does not have a Jus Soli requirement, although the children born from a German soldier and French mother probably did get citizenship. I'm not an expert in this subject.

    What I am far more knowledgeable about is the late Roman Empire and Germanic tribes. I'd suggest reading Barbarian Migrations and the Roman West by Guy Halsal to truly understand the situation. Rome didn't fall because barbarian tribes overwhelmed social and economic resources. There weren't really any social resources like that and Rome didn't fall due to economic collapse anyway except, perhaps, some influence from the debasement of currency. But that had to do with the massive armies with limited conquest, the fact that Romans didn't understand economics, and the destructive Civil Wars in the Crisis of the Third Century. Rome consistently prioritized fighting themselves over fighting barbarians and that gradually collapsed their empire. The political shifts in power forced generals to find another source of power besides the fact that they got their job from the Emperor (because the Emperor frequently changed to someone else) so they began to emphasize their ethnicity and heritage as an independent source of auctoritas (while never ignoring the idea that they were Romans as well).

    But this is all off topic and has nothing to do with the current debate.

  • ||

    Why would the drafters have drafted the 14th Amendment to cover people born to illegals? Was there a reason behind it? If not, it's reasonable to argue that that is NOT what they meant.

    Somin, just how many mestizos do you think America needs? There's not a majority mestizo nation anywhere in the world that is successful. Not. One. Puerto Rico, which is majority Taino, has half the average income of Mississippi, our poorest state. What do you think accounts for that?

  • Kkaap||

    They specifically debated the issue of alien birthright on the floor and stated they would accept that result. Critics of the amendment pointed it out. It was their intention to codify what was already common law at the time - that birthright citizenship was granted except the children on diplomats and enemy occupiers.

    This interpreted was reaffirmed in US v. Wong in 1898 which explicitly held that the intention of that language was to extend birthright to all except those two categories.

    Pretty cut and dry.

    How man "mestizos" Somin thinks America needs has nothing to do with the legal matter at hand. You bringing it up makes you look like an idiot.

  • ||

    It has a lot to do with the legal matter at hand, because Somin also supports steps that will create more illegals here to give birth on U.S. soil.

  • MatthewSlyfield||

    "Why would the drafters have drafted the 14th Amendment to cover people born to illegals?"

    When 14A was drafted there was no such thing as illegal immigration. The first immigration restrictions weren't enacted until 7 years AFTER 14A was ratified.

  • Kkaap||

    They specifically debated the issue of alien birthright on the floor and stated they would accept that result. Critics of the amendment pointed it out. It was their intention to codify what was already common law at the time - that birthright citizenship was granted except children of diplomats and enemy occupiers.

    This interpretation was reaffirmed in US v. Wong in 1898 which explicitly held that the intention of that language was to extend birthright to all except those two categories.

    Pretty cut and dry.

    How many "mestizos" Somin thinks America needs has nothing to do with the legal matter at hand. You bringing it up makes you look like an idiot.

  • Rev. Arthur L. Kirkland||

    Somin, just how many mestizos do you think America needs?

    These are your peeps, Prof. Volokh.

    Still wondering why America's strongest law schools seem uninterested in the Volokh Conspiracy's suggestion that they invite more movement conservatives to join their faculties? Or why conservative-controlled schools tend to be mediocre, or worse?

  • mad_kalak||

    I don't think Volokh would call ARWP his "peep" anymore than you might call the screaming cat ladies clawing at the doors of the Supreme Court at Kavanaugh's confirmation your peeps. Scratch that, you just might. Let us know.

  • Rev. Arthur L. Kirkland||

    "These" referred to more Conspiracy fans than merely The Man Of Many Names. It referred to all of the white nationalists clamoring to build walls, dismantle the citizenship standard, engage in race-targeted voter suppression, enforce authoritarian immigration practices, and generally 'take the country back' from all of this damned progress, reason, science, tolerance, education, diversity, and modernity.

  • mad_kalak||

    So, are the screaming cat ladies your peeps or not?

  • Rev. Arthur L. Kirkland||

    Do they favor reason, tolerance, science, education, modernity, inclusivity, liberty, and progress? Are they peaceful and reasonable?

    If there are screaming cat ladies, do you agree we should develop a program to match those screaming cat ladies with the disaffected, nationalist white incels? Perhaps true love for those who are missing it could benefit everyone!

  • mad_kalak||

    If you think (in my opinion wrongly) that 3rd wave feminism favors reason, tolerance, science, education, modernity, inclusivity (which my spell checker doesn't even recognize as a word btw), liberty, and progress, then I guess they are your peeps.

    Incels would be better off with online porn than a cat lady, who will regret after a couple days/weeks/years and claim they were raped. But if they did get together, who would convert whom, and how would they raise the kids? lol.

  • TwelveInchPianist||

    It's funny, ARWP talking about Latin America sounds exactly like Kirkland talking about red states.

  • ||

    I am a racial realist. Professor Volokh, while a fine libertarian in most cases, is not. I speak for myself only.

  • Ghost of Patrick Henry||

    What is the difference between a soldier invading America and having a child during an occupying period and an illegal immigrant doing the same thing?

    Were the children of the Nazis born citizens of France or the USSR in 1942?

    The test must be naturalized or citizen parents, not physical presence.

    This calls to mind the end of the Roman Empire in the 4th and 5th centuries. The Goths were (inexplicably) invited into the Empire, refused to assimilate and overwhelmed the social and economic resources of Rome.

    http://www.bbc.co.uk/history/a.....e_01.shtml

    History repeats itsrlf for those who dont read and understand it.

  • Sarcastr0||

    Telling conservatives cannot tell the difference between illegals and soldiers.

    Their threat evaluation is completely borked.

  • Hank Ferrous||

    The key term is 'invading,' but, by all means, push your stupid narrative about perceived threat.

  • Smooth Like a Rhapsody||

    Telling that liberals refuse to acknowledge the analogy and resort to name calling.
    If you're here illegally--whether you've got an M-16 on your back or not, you are here illegally.

  • Dilan Esper||

    We don't acknowledge BAD analogies.

  • mad_kalak||

    So, the "reconquista" is empty jargon?

  • Sarcastr0||

    I don't treat someone who says that like a dude in a uniform with a gun coming at me.

  • mad_kalak||

    No, perhaps not, but the goal is the same. The timelines and methods are just different.

  • David Nieporent||

    What is the difference between a soldier invading America and having a child during an occupying period and an illegal immigrant doing the same thing?

    One of my kids' favorite jokes is:

    "What's the difference between a kangaroo and a mailbox?"

    And the person is supposed to answer, "I don't know, what?"

    With the punchline being, "Well, if you don't know, I'm not going to ask you to mail any letters."

    If you can't tell the difference between an invading soldier and an illegal immigrant, not only am I not going to trust you with my postage, but I'm going to buy you shoes with velcro because you're not really even mentally competent to tie your own shoelaces.

  • Lee Moore||

    A federal statute, 8 U.S.C. Section 1401, extends birthright citizenship to any "person born in the United States, and subject to the jurisdiction thereof." For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.

    I thought Dorf's argument was very weak. Essentially his argument is that "and subject to the jurisdiction thereof" would have to be interpreted as meaning something different from the meaning of the same words in the 14th Amendment. Which is of course possible, but unlikely. By far the most natural reading is that Congress copied the words directly, using them in the same way as in the 14A, because it was providing a comprehensive list of who was a citizen. The first item on the list is simply a repetition of the constitutional text, the rest are extensions to different categories of people. Had Congress excluded the first item (ie the repetition of 14A) it would have created a mess. They would have had to say something like "aside from those folk granted citizenship directly by 14A, the following categories are also citizens...." Much simpler just to include the 14A folk in the list.

  • Dilan Esper||

    When Congress copies language, it adopts the prevailing interpretation. So it was incorporating Wong Kim Ark.

  • phattyboombatty||

    And Wong Kim Ark could be interpreted as only applying to children of parents who are living in the country with the permission of the United States.

  • Dilan Esper||

    Many things "could be".

    However, the Supreme Court has since told us that wasn't what Wong Kim Ark meant.

  • phattyboombatty||

    That's news to me about a subsequent Supreme Court case. What case do you have in mind?

  • Dilan Esper||

    There are several cited in Prof. Volokh's post. Most importantly Plyer.

  • phattyboombatty||

    Have you read Plyer? It has nothing whatsoever to do with birthright citizenship. The plaintiffs involved were children that were admittedly not citizens, but instead had illegally crossed the border with their parents. The case doesn't even mention Wong Kim Ark (why would it?).

    The fundamental premise of Plyler was that non-citizens had to be treated equally under the law the same as citizens.

  • NToJ||

    Yes, that illegal immigrants had to be treated the same because they were "within the jurisdiction" of the US under the 14A.

  • Mannix||

    Most of the states and DC denied citizenship by statute to children born to "transient aliens". A few states like Calif. required voters to be a citizen of the united states, defining that to mean born to a citizen father. The US AG in 1873 said "subject to the jurisdiction" did not apply to aliens because political and military rights and duties did not apply to them.

  • Dilan Esper||

    It is pretty clear the 14th Amendment rendered many state citizenship statutes unconstitutional. Indeed it was interended to.

  • John Rohan||

    "The Fourteenth Amendment gives birthright citizenship to children of undocumented immigrants and visa holders, if they are born on US soil."

    Yet that definitely wasn't the intent when it was passed. Seriously - a law that was passed to guarantee that freed slaves would be US citizens. The framers had no intention of creating loopholes for wealthy Chinese tourists to travel to the US, have a baby, crassly obtaining citizenship with no intention of living here afterwards or participating in American life.

    Also, Native Americans didn't become citizens until passage of the Indian Citizenship Act in 1924. If the 14th Amendment simply made all persons born here citizens, then they would have been citizens beginning in 1868.


    "Even if that were not the case, the power to grant citizenship is a congressional power, not an executive one."

    And yet Mr. Somin is on record claiming that Obama's DACA decision WAS Constitutional!! You can't have it both ways here.

    (Reason.com won't let me put links here, but you can search for the article titled: "Why Obama's Immigration Policy Is Constitutional")

  • Sarcastr0||

    Off they just wanted to make slaves citizens that's what the 14th would say. Your appeal to incredulity is weak.

  • John Rohan||

    I'll use the same reasoning.

    If they wanted to make children of illegal immigrants citizens, that's what the 14th would say. Your appeal to incredulity is weak.

  • chemjeff radical individualist||

    Except that in 1868, there was no concept of "legal" or "illegal" immigration in the first place.

  • John Rohan||

    Which leads to the problem of how it's being misinterpreted today.

  • Sarcastr0||

    That is what they said, though.

    The ones arguing against the plain text are you guys.

  • bernard11||

    Native Americans didn't become citizens until passage of the Indian Citizenship Act in 1924. If the 14th Amendment simply made all persons born here citizens, then they would have been citizens beginning in 1868.

    No.

    Because they were not considered to be under the jurisdiction of the United States, having some sort of quasi-independent status.

  • John Rohan||

    And how is that practically any different from a population that hides the fact that that are here, works for cash off the books, and is ineligible for legal status?

  • TheAmazingEmu||

    Because those people, when caught, can be prosecuted for violating the law. The fact that they can be prosecuted demonstrates that they are subject to the jurisdiction of the US. It's no different than a bootlegger hiding in the woods is still subject to the jurisdiction of the US.

  • John Rohan||

    Then the entire planet is subject to our jurisdiction, because we can and do kill or arrest people in other countries, either during wartime, or on anti-terrorism operations etc. But I don't think Osama Bin Laden was subject to our jurisdiction by the intention of the 14th.

  • TheAmazingEmu||

    The Alien Tort Act would demonstrate that those abroad are not subject close to the same jurisdiction.

  • ||

    So let me get this straight.

    - It's "cruel" to "separate" families at the border.
    - It's also cruel to hold children in detention for more than three weeks.
    - The only "non-cruel" thing to do is to let them stay in the United States until their asylum hearing, which often takes years.
    - If in the meantime, one of those women gets pregnant and pops out a kid, that child is a U.S. citizen, as American as you and me! How dare you advocate denying services to one of your COUNTRYMEN!

    Am I getting this right?

  • apedad||

    Yes you are right.

    Google jus soli (and jus sanguinis while you're at it).

  • ||

    I know what the terms mean. So in other words, the goal of the left is to create as many third-world citizens as possible. It's that simple.

  • James Pollock||

    " the goal of the left is to create as many third-world citizens as possible"

    The U.S. is a first-world country. Birthright Citizenship via the 14th amendment makes American citizens. Thus, shouldn't you be complaining about attempting to create as many first-world citizens as possible?

  • ||

    Third-world people born in America still have third-world genes and culture. They're third-world people.

  • Paladin_44||

    3rd world genes? 3rd world culture? I suppose you think you are 1st world with respect to these. But just what do you really mean? Does a DNA test via genealogy.com or 23andme.com define me in terms of "worlds"? And how does gene mapping define "culture" anyway? Phrenology, anyone?

  • mad_kalak||

    The left is seeking to bring in 3rd worlders as as client groups, and doing so does not, by virtue of geography, make them into inculcated into our culture. Ask yourself, "who benefits" from illegal immigration and anchor babies.

  • ||

    And they don't care if they're of inferior genetics, because their goal is votes. Period.

  • TheAmazingEmu||

    And this is why everyone should stop replying to this jackass.

  • Paladin_44||

    Ah yes, inferior genetics. Next comment, Herr Himmler?

  • apedad||

    Jus soli isn't a goal; it's a constitutional mandate.

    You don't like it? Get an amendment.

  • ||

    You're begging the question. In any case, my point was that if you're going to insist that birthright citizenship is a Constitutional right, then it is justifies to not release "asylum" seekers into the U.S. Agreed?

  • apedad||

    "Not released" means they're locked up somewhere and therefore are SUBJECT TO THE JURISDICTION OF THE UNITED STATES.

  • ||

    Then hold them in Guantanamo Bay or some other place not on U.S. soil. Or deport them quickly.

  • Kurt Edwards||

    I keep seeing articles that quote experts who say that Trump can't do X or Y.

    Then, somehow, he does X or Y and those experts are left shaking their fists and blubbering that "He can't DO that!!!"

    For a lot of reasons, not the least of which being that the "experts" are the ones who have gotten us to this point, I'm becoming less inclined to listen to their opinions and more inclined to stand back and watch what happens.

  • bevis the lumberjack||

    The right is doing the same thing with the 14th that the left does with the 2nd - ignoring the plain language of the amendment and doing lawyerly twisting and splitting of hairs to try to justify their desired interpretation. But words mean things and both amendments say what they plainly say.

  • ||

    It's a well settled principle of construction that an interpretation that renders a clause superfluous is probably not the best one. What do you think the purpose of "and subject to the jurisdiction thereof" is?

  • bevis the lumberjack||

    The purpose was to exclude the children of diplomats and invading armies. You're either subject to the jurisdiction or your not. The meaning is perfectly clear. Just like "shall not be infringed".

  • Bob from Ohio||

    According to Merriam-Webster online dictionary, army means:

    "Definition of army
    1a : a large organized body of armed personnel trained for war especially on land

    2 : a great multitude
    an army of birds

    3 : a body of persons organized to advance a cause

    Illegal immigrants are an invading army under #2, the "caravan" currently traveling in Mexico is an army under #3

    Unlike "infringed", the "purpose" of the14A "jurisdiction" clause is outside the text.

  • ||

    So when does a group of illegals become an army?

  • bevis the lumberjack||

    When they use armed force to capture somebody else's territory and impose their rules on citizens of another country. Think the British in the War of 1812 or the Japanese in the Aleutians during WWII.

    None of those things even remotely applies to illegals.

  • ||

    Are you arguing that these people never use force to further their goals?

  • bevis the lumberjack||

    Not in an organized way to impose the laws of their countries on our citizens. To knock off a convenience store, sure, but that's not an invading army. That's just a common criminal.

  • ||

    What about demanding that their illegitimate crotch droppings be taught in Spanish? What about demanding Spanish language ballots?

  • bevis the lumberjack||

    They only get that if we (through our duly elected/appointed representatives) agree to give it to them. They're not forcing it to happen at the point of a gun.

  • ||

    Or if a liberal judge rules it so. Or if they bloc vote for people who support those things. Once you let in enough Hispanics, they demand more. They're only loyal to other Hispanics.

  • Bart DePalma||

    The question is whether foreign citizens who have illegally entered our nation are "subject to the jurisdiction thereof."

    The Supreme Court has not decided this question. In the century old case of United States v. Wong Kim Ark, the Court held that the Fourteenth Amendment extended citizenship to child of legal aliens born in the United States. The Ark Court noted that extension of citizenship to those born in the United States is not universal and the British common law exceptions denying citizenship to the children of foreign diplomats and invading foreign soldiers.

    This note begs the question of why foreign diplomats and soldiers are not "subject to the jurisdiction" of the United States? The answer is because diplomats and invading soldiers refuse to subject themselves to our laws, not because they cannot be subject to our laws.

    Trump can make a very reasonable argument that foreign citizens who enter the United States are analogous to invading soldiers. Such soldiers are subject to our immigration laws excluding them from our territory and the laws of war during the conflict. They simply refuse to abide by our laws. The same can be said for illegal aliens.

    Finally, as POTUS, Trump has the power to interpret the Constitution he is tasked with enforcing until the Supreme Court enters a final decision on the question.

  • bevis the lumberjack||

    "This note begs the question of why foreign diplomats and soldiers are not "subject to the jurisdiction" of the United States? The answer is because diplomats and invading soldiers refuse to subject themselves to our laws, not because they cannot be subject to our laws."

    No, that's not the answer. Foreign diplomats are immune from our laws by custom and treaty. Just like our diplomats are immune from their laws in their countries. Invading soldiers are immune from our laws because they occupy and control territory in which we can't impose our laws because we don't control the territory.

    Neither of those arguments apply to immigrants, legal or otherwise.

  • ||

    Do they not? Then why does the Mexican consulate demand access to their citizens when they're caught committing violent crimes here?

  • bevis the lumberjack||

    "Then why does the Mexican consulate demand access to their citizens when they're caught committing violent crimes here?"

    Because we have a treaty with Mexico that says that we will allow their diplomats access to their citizens that are arrested here. You know, the rule of law and all that. Something you scream that you're in favor of, until you're not.

    The people in this case are still subject to our laws, not the laws of Mexico. We've executed Mexican nationals, for example, even though Mexican law forbids capital punishment.

  • ||

    Here's what I'm in favor of. Dropping nukes all over Latin America provided that we can find a way to prevent the radiation from reaching the United States.

  • Bart DePalma||

    HD: "This note begs the question of why foreign diplomats and soldiers are not "subject to the jurisdiction" of the United States?

    BTL: "The answer is because diplomats and invading soldiers refuse to subject themselves to our laws, not because they cannot be subject to our laws."

    Over the centuries, nations refused to send their diplomats to other nations if they were subject to foreign law and this became custom and treaty.

    BTL: "Invading soldiers are immune from our laws because they occupy and control territory in which we can't impose our laws because we don't control the territory."

    Control over the person is necessary to enforce the law. Both foreign soldiers and migrants illegally entering the country refuse to surrender their persons to the enforcement of our law.

  • Dilan Esper||

    1. Criminals also refuse to obey our laws. Are children of US citizen criminals not citizens?

    2. Even if Wong Kim Ark didn't decide it, Plyer did. 9-0.

  • ||

    Plyer had absolutely nothing to do with this issue. None.

  • Dilan Esper||

    The courts think it does. And the framers gave them the power to decide this. Not you.

  • ||

    The Supreme Court also ruled that the 14th Amendment creates a right of a man to insert his penis into another man's butt and spread HIV. Did the framers give them this power? Or did they take it?

  • Bart DePalma||

    Plyer did not rule on the scope of birthright citizenship and, instead, erroneously held that due process required the provision of educational benefits to illegal alien children.

  • Dilan Esper||

    Bart, you aren't the Supreme Court, and under Article III of the Constitution, the framers said that the Supreme Court gets to decide Plyer and your opinion of it doesn't count for diddly. Indeed, that originalist interpretation is undeniable.

    Nobody cares that you think Plyer is wrongly decided. Literally nobody. It doesn't matter. It's the law.

    And yes, Plyer needed to decide the citizenship clause question to then decide the equal protection question.

    And finally, even the dissenters of Plyer think you are full of dung.

  • ||

    It very much is undeniable. I'm really getting tired of "progressives" like yourself making the asinine claim that the Constitution only means what the judiciary claims it means. The framers intended for the people (and the legislatures) to be able to make our own determination.

  • James Pollock||

    President Trump can issue the order. It will have no effect, except to get people all riled up.

    Any bets on how many people will complain publicly about "activist judges" when this gets overturned on strict constructionist grounds?

  • John Rohan||

    It can have a very decisive effect. It could force the Supreme Court to rule directly on this issue.

  • Rev. Arthur L. Kirkland||

    Do you believe Trump supporters are going to accept a 6-5 Supreme Court decision that goes against Republican intolerance?

  • ||

    No, I'm hoping that Trump supporters have used a 2nd Amendment remedy prior to the Democrat Party being successful at court packing.

  • Rev. Arthur L. Kirkland||

    In a couple of years Trump will be back to being an obese, silver-spooned grifter with lousy hair and an additional ex-wife, his base will be back to being the wrong end of bright flight, and right-wing political aspirations will have capsized on their foundation of superstition, backwardness, and old-timey intolerance.

    Except Trump will be susceptible to subpoenas and complaints, and his base may have squandered the sympathy of accomplished and decent Americans who otherwise might have been inclined to help the 'forgotten' Americans.

  • mad_kalak||

    I think in a couple year, Trump will be working on his 2nd Inauguration Day address. But you can hope I suppose.

  • Rev. Arthur L. Kirkland||

    Looking forward to a big day on Tuesday, too?

  • mad_kalak||

    I think the GOP will keep the Senate and gain seats, and the House is a toss up. If the GOP keeps both, which I hope it does, perhaps the Rev's of the world will think that "maybe we need a different approach" rather than calling us rubes (or worse). Or you will just double down, which is more likely.

  • Sarcastr0||

    If that's not what happens, will you rethink your own approach?

  • Allan Walstad||

    "Senator Jacob Howard, one of the key drafters of the amendment, stated that eligibility for birthright citizenship 'will not, of course, include [children of] persons in the United States who are foreigners...'" Aren't citizens of other countries, who enter the US illegally, _foreigners_?

  • James Pollock||

    "Aren't citizens of other countries, who enter the US illegally, _foreigners_?"

    Depends on whether or not they plan to go back.

    The birthright citizenship of the 14th amendment exists specifically because they wanted to make citizens out of people whose parents were not citizens.
    It's fair to argue that we do not need this provision now (and if we don't, the way to change it is via Constitutional amendment). It's silly to argue that the guy(s) who wrote it didin't mean t include people whose parents were not citizens.

  • Allan Walstad||

    If I'm a citizen of Mexico one step before I set foot in the US, I'm no longer a citizen of Mexico on my next step if I don't plan on returning to that country? That's a stretch. And if I'm a citizen of Mexico, not of the US, then I'm a foreigner.

  • James Pollock||

    "If I'm a citizen of Mexico one step before I set foot in the US, I'm no longer a citizen of Mexico on my next step if I don't plan on returning to that country? That's a stretch"

    If by "stretch" you mean "fact", then yeah, it can be.
    If I was born in Boston, but move to New York and intend to stay in New York, am I more accurately called a Bostoner or a New Yorker?
    No matter which choice you went with, I win the argument.
    If you chose New York, well, then you're agreeing with me. If you said "Boston", then it follows that I'm a Bostoner because I was born there. But when my kids are born in New York...

  • Allan Walstad||

    It's not clear to me that moving from one state to another within the US is equivalent to traveling to the US from a foreign country.

  • David Nieporent||

    Allan Walstad, not one of the key drafters of the amendment, just lied and cut a sentence in half to change its meaning. Putting an ellipsis in a quote is not sufficient to demonstrate intellectual integrity if one selectively omits words so that the sentence's meaning is changed.

    Howard did not say "will not, of course, include [children of] persons in the United States who are foreigners." He said "of course, include [children of] persons 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..." That's one thing, not a list of three separate things.

  • M.L.||

    Nope.

    "Chavez claims, for example, that Senator Jacob Howard thought the issue was straightforward, and that the "subject to the jurisdiction" clause created "a single exception," namely, that the children of ambassadors would not be treated as automatic citizens. She says that, according to Howard, such was the rule already in place, and the Citizenship Clause language he proposed was "simply declaratory of what [he regarded] as the law of the land already." But when Senator Howard spoke those words, the "law of the land" was the 1866 Civil Rights Act, which provided: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." A child born in the United States to foreign national parents was, through their parents, "subject to a foreign power" and not eligible for U.S. citizenship under the Act. That was the "law of the land" that Senator Howard claimed his amendment was "simply declaratory of.""

  • Allan Walstad||

    Well, that's rather gratuitously nasty, isn't it? I see your point, that the phraseology might have been intended as a description of one narrow category of persons excluded. I didn't interpret it that way, but it does actually make sense. I'm not trying a case here, just trying to get a better understanding of the issue.

  • Bob from Ohio||

    "For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not."

    Congress uses exact [not merely similar] same language in a statute as the Constitution. No way does this create a greater right than the Constitutional one.

  • Dilan Esper||

    You failed statutory interpretation 101.

    What it does is adopt the current interpretation of the language.

  • TwelveInchPianist||

    This is not necessarily true, if courts find an intent to enact a provision similar to a constitutional provision. Title VI, for example, has been found to only ban discrimination that violates the EPC, regardless of whether it would have been interpreted to violate the EPC in 1964..

  • Allan Walstad||

    "...the central purpose of the Citizenship Clause of the Fourteenth Amendment, which was to reverse the Dred Scott decision's notorious holding that blacks – even those who were not slaves – could not be citizens of the United States."
    If that was the central purpose, then why should this provision be taken to apply to aliens who willingly enter the US illegally?

  • Dilan Esper||

    The central purpose of the Fourth Amendment was to prohibit general warrants. That doesn't mean it doesn't extend to thermal imaging and wiretaps.

  • Allan Walstad||

    But a blank check to engage in thermal imaging and wiretaps fits into the concept of a general warrant. I don't think birthright for illegal aliens fits with protecting freed slaves. Also, it was Somin who brought up the central purpose, suggesting that to deny birthright citizenship to illegal aliens or tourists would undermine that purpose. How is that possible? The slaves were long since freed, and no former slaves remain alive.

  • Dilan Esper||

    The point is, a definition of "subject to jurisdiction" that excluded any slaves is a nonstarter given the purpose of the Amendment.

  • Bob from Ohio||

    "subject to the jurisdiction thereof"

    The Global Magnitsky Act asserts world wide jurisdiction against people who have never even stepped foot in the US.

    So maybe "jurisdiction" in 14A means something different than merely being subject to US law?

  • Dilan Esper||

    What DOES it mean Bob?

    You can't JAQ off in Constitutional interpretation. You have to tell us what it means and why it doesn't exclude a whole lot of others from constitutional citizenship.

  • Bob from Ohio||

    Relax Dilan, just asking questions.

    By if you insist, the 14A applies only to children of people permanently and lawfully here. It excludes transient aliens such as the children of foreign diplomats. Citizens of other countries remain subject to the jurisdiction of those countries just like a diplomat. So their children are not US citizens.

  • Dilan Esper||

    Dual citizens are also subject to another country's jurisdiction under your definition. So are legal immigrants. So are people who were abducted and brought to the US (a category that includes some slaves).

    So that can't be right.

    You have to come up with a definition that CAN work.

  • Bob from Ohio||

    The 14A does not recognize "dual" citizenship. It recognizes that only people without any other allegiance are US citizens.

    Permanent residents have voluntarily accepted the jurisdiction of the US.

  • James Pollock||

    "The 14A does not recognize 'dual' citizenship. It recognizes that only people without any other allegiance are US citizens."

    Are you one of those "the Constitution says whatever I want it to say today" liberals, Bob?

  • Dilan Esper||

    I assure you, you can be a dual citizen at birth under the 14th Amendment. For instance, a baby born in New York to an American father and a foreign mother will very likely be subject to a foreign jurisdiction under your definition.

    And you changed your definition on permanent residents. Yes they are under US jurisdiction but they are also still under foreign jurisdiction as well.

  • Bob from Ohio||

    "people permanently and lawfully here" = "permanent residents"

  • ||

    Let me pose a question to the open borders crown. Suppose in 30 years time, we all accept the science that intelligence is not equally distributed among the races, and that people with African and American Indian genetics will never be able to be on equal economic footing as those of European and East Asian descent.

    What do we do at that time? We'll already have 100 million or more low IQ people who will always need transfer payments to compete in modern society.

    Have any of you thought through to the logical consequences of your proposed policies?

  • James Pollock||

    "What do we do at that time? We'll already have 100 million or more low IQ people who will always need transfer payments to compete in modern society."

    You seem to get by OK. Maybe they will, too.

  • ||

    You're a moron.

  • James Pollock||

    So... you're saying all morons are smarter than you, or just this one?

  • mad_kalak||

    Why are you asking questions that 1) nobody here will answer; and 2) are entirely rhetorical?

    While IQ studies are pretty solid, there will never be a scientific consensus on the issue because you can't trust the scientists to be objective about it, and moreover, they will distance themselves from the policy implications of IQ studies like they do already (except for the rare exceptions).

    What will likely happen, is that the Chinese will genetically modify their babies in utero to add 5-10 IQ points (once we get that technology), and the rest of the world western world will feel obliged to follow, making the justifications up as we go along.

  • ||

    Except they're not entirely theoretical. Look at what Guatemala looks like if you want to see what a majority mestizo nation looks like. We don't have scientific "consensus" right now because the left is in charge. Will the left still be in charge if America is no longer stable and successful? People are complacent when things are good.

  • mad_kalak||

    It is theoretical, because no one is going to act on the policy implications of IQ studies. The last group that did so, were the atheists and eugenicist Progressives of the 19th and early 20th Century. Since WWII, it's been toxic. Moreover, the left will remain "in charge" of the social sciences, where IQ research is coming from, for the foreseeable future, so again, it's theoretical.

    Will the left still be in charge if America is no longer stable and successful? That assumes that people blame 3rd world immigrants rather than, say, corporate greed, for America sliding down from it's current status, AND that it actually occurs.

    Under any reasonable scenario, if America maintains a semblance of being a color-blind society, meritocratic talent will still pull the freight, regardless of race or ethnicity. Note, I didn't say "in charge" because Detroit still votes Democrat. But we will have a larger permanent underclass.

  • ||

    Right, except that the left not only doesn't create policy on IQ studies, but creates policy CONTRARY to IQ studies. They assume that the performance gap is due to white racism which needs to be remediated, and not genetics.

    But do you not think the larger low IQ permanent underclass will vote to seize wealth and power for themselves? The only way that would work would be set up a system of apartheid where the low IQ, non-white underclass were not allowed to vote. Otherwise, you end up with Zimbabwe.

  • mad_kalak||

    Naw. The productive class will hide their wealth, and actively engage in (what they do now) enough propaganda that "anyone can make it in America" and "bootstraps" and all that to keep the untermench thinking they can make it too. Enough of them will to keep the hope alive.

    Furthermore, federalism and checks and balances will ensure that you won't end up like Zimbabwe (which was a dictatorship mind you). At the worst, we would be like South Africa, but with well run conservative states with conservative governors. And if things got really bad, because people only have two options, they will vote for the other guys.

  • ||

    I think you're being overly optimistic, and expecting that non-white people will behave as whites will.

  • mad_kalak||

    And I think you're being overly pessimistic to think that whites will fall off the demographic cliff, and that you're saying race=culture, which is a fallacy that a lot of people like you make.
    Race informs culture, but it is race does not = culture.

  • ||

    Once whites have less than 40%, they will fall of a cliff and have very little influence. And I never said race equals culture. But the fact remains that non-whites are largely unable to pay for their own needs, and thus vote for the money of white people.

  • mad_kalak||

    Once whites are not part of the majority (again, an assumption) why would their demographic decline accelerate? More likely, lighter skinned hispanics of Argentinian or Spanish decent will identify as white, and they don't have much (or any) Indian DNA to your point. They will be like northern Italians about a century ago. And cripes, if there is not any native admixture, hispanics *are* white, and Spain has an average IQ about the same as the US, in the neighborhood of 95 or so.

    While you never said race = culture, your implicit assumption is that non-whites are incapable of assimilating to the anglo-saxon heritage they are surrounded with by virtue of their race. Don't play coy.

    And whites vote for $ from the treasury for themselves, though not to the same degree as other races, they just don't do it as much because they don't need to because they tend to be more productive citizens (for a whole host of reasons).

  • ||

    I agree. However, most "Hispanics" we're getting are not European Spanish, but Mayans or Aztecs. The criollos are successful and wealthy down there, and don't need or want to immigrate here.

    Anyway, I didn't say that ALL are incapable, but most non-whites with 85 IQs ARE incapable. This is not deniable. A small number of equal IQ people can assimilate. A large number of low IQ people can not.

    As for your last paragraph, you're kind of going around in circles. I posit that they don't do it as much because they're more intelligent. You're saying they're more productive for a host of reasons. What other reasons?

  • mad_kalak||

    Meh, you're stuck on this mestizo thing, and nothing will convince you otherwise. Just recall that they said the same things about the Italians, Slavs, and for that matter the Irish not that long ago. In three generations, your typical person named Alvarez will be looked at no differently than someone named Guatachelli, Markowitz, or Flannery, which is white. The caveat, is that we have to slow or drastically stop the flood of illegals now to give them proper time to assimilate, like we did with the immigration acts of 1921 & 1924.

    So, as to you other comment, while IQ is a large predictor of success in life, it's not the only metric. Take, for example, the difference in outcomes of Jamaican and African immigrant blacks compared to native citizen blacks. Genetically, they are about the same, with one SD difference in average IQ from the average white person. However, the immigrants are much more successful because they didn't grow up in a culture where they were told "the man" was keeping them down. Are we just getting their best and brightest? Maybe partially, but with chain migration a reality, we are not always getting the best and brightest, and they are just as successful.

  • ||

    I disagree. The Africans we get tend to be highly educated in their own countries, as the barriers to immigration are much higher. Chain migration, which brings over these intelligent, educated people brings their siblings who are likely intelligent as well.

    I agree that 85 IQ blacks can do better than they do without the cultural barriers you mention, but they won't do as well as 100 IQ whites.

  • mad_kalak||

    I don't have enough data, and neither do you, to know whether those that come over via chain migration are the best and brightest as the first to immigrate. While IQ is somewhat heritable, it's a leap, and a real leap, to assume that the siblings, cousins, uncles, etc. that come over via chain migration are similar in intelligence/education. Moreover, often the first to come over are chosen via lottery, and there is nothing special about them.

    Given the spread off the bell curve on intelligence, which is particularly large with men (no matter the race), there are enough 85 IQ men of all races who are in a cultural system that deals with them in an appropriate manner. American blacks, until they were radicalized in the 1960s as part of getting their full civil rights, and having their family structure destroyed by the bad incentives of welfare that encouraged out of wedlock births and single motherhood, were in a cultural system that made them productive citizens.

    Yes, yes, we would all be better off if we only allowed immigration from countries like Japan, where average IQ is 105, but it ain't gonna happen. You're never going to get an immigration policy based exclusively off average national IQ. At best, you will get a policy that has low numbers, and from countries that are Western(ish).

  • ||

    First, I don't believe people can sponsor cousins. It's going to be adult siblings and parents. Second, the lottery is limited to 50,000 people per year, and is a relatively new phenomenon.

    I agree that 85 IQ people can be productive in a society with a high IQ majority. You introduce too many of the 85s, and you no longer have a stable society that can "encourage" the right things or create the infrastructure needed for the low IQ to do well.

    As for your last point, yes, that's true, as long as we are a racially liberal society. But if SHTF, who knows what will happen?

  • VinniUSMC||

    Illegal immigrants are an invading army. Invading armies of foreign nations are clearly not applicable for birthright citizenship.

  • James Pollock||

    "Invading armies of foreign nations are clearly not applicable for birthright citizenship."

    Because so few armies are made up of women in their 8th or 9th month of pregnancy?

  • kramartini||

    Even if the type of healthy, young men who make up a typical army could scale Trump's wall, pregnant women in their 8th or 9th month might not have as easy a time of it...

  • James Pollock||

    It's not that hard to climb over an imaginary wall.

  • kramartini||

    An obtuse response. If you were sharper you would recognize my comment as a rebuttal to the argument that any wall can be breached by at least some people. But those who go over any wall are unlikely to be pregnant woman trying to to create anchor babies...

  • apedad||

    Let's see if that USMC in your name is real...

    Armies have these elements which are well organized and have a well defined hierarchy.

    Command and Control
    Logistics
    Vetting/training
    Intelligence
    Communications
    Transportation

    Sooooo....tell us if illegal immigrants have these elements!

  • mad_kalak||

    So, then the caravan making its way north, which has all those elements, even if ad hoc, is indeed an army. *rubs chin thoughtfully* Perhaps I should be more worried about it than I thought.

  • Rev. Arthur L. Kirkland||

    Illegal immigrants are an invading army.

    If Vinni is a Marine Corps veteran, statements such as this one suggest a reason the United States hasn't won a war in 70-odd years.

  • Rеv. Arthur I. Kirkland||

    We don't care what the open borders Bull Cow says regarding this. That Bull Cow doesn't have the final say. Just like everything he said about the Travel Ban was proven wrong as well.

    How does it feel, Bull Cow, for YOUR PRESIDENT to live rent free in your head? With the small size of your brain, there is plenty of room in there.

  • Rev. Arthur L. Kirkland||

    Bigoted right-wing Mini-Me is back for the midterms!

    I guess we should be grateful this guy is sharing his bigoted views with us rather than defending his white people by spraying bullets at 97-year-old women.

  • apedad||

    I was wondering why he had been absent.

    Medical issue?
    Sabbatical?
    Extended foreign travel?
    Prison?
    Vow of silence?
    Didn't pay his cable and/or electrical bill?
    or (least likeliest)...change of heart?

  • Rev. Arthur L. Kirkland||

    I sense he is one of the regulars, one who dons the "fake Arthur" screen name solely when Prof. Somin's libertarianism veers from the standard Conspiracy track and offends authoritarian, racist, right-wing sensibilities.

  • Sarcastr0||

    Circumstantial, but he and one other poster are the only two I've seen to use the super dumb NPC meme that's been popping up on 4chan lately.

  • mad_kalak||

    Twitter and FB have been banning the NPC meme not because it's dumb, but because it hits to close to home.

  • Rev. Arthur L. Kirkland||

    I don't know much about that. I know I dislike bigots and therefore will be pleased to see America's betters put them in their electoral place soon enough. Ignorance and intolerance have never won in America over the long term, despite many tries (from Italians to Jews, blacks to the Irish, gays to Asians, women to Catholics, agnostics to eastern Europeans), and this latest batch of bigots seems nothing special.

  • ||

    Except that the others were all capable of assimilation "in the long term." Mestizos with 85 IQs are not.

  • Sarcastr0||

    Which logic requires you don't believe in the NPC meme.

    And considering the correlation between embracing the NPC meme and being from the subgroup of people who are terminally online and generally awful on the Internet, I'm not sure your correlation is causation.

  • cja||

    has citizenship being defined as a "mutual relationship of consent" gone down the memory hole?

  • mad_kalak||

    Good point. But it's kinda rhetorical, in that being born in Illinois, it was not like I consented as a baby. By the time I was an adult, I was already acculturated.

  • TwelveInchPianist||

    "has citizenship being defined as a "mutual relationship of consent" gone down the memory hole?"

    I'm not sure that this helps you. Under the idea of "mutual relationship of consent", government derives its powers from the consent of the governed. "Subject to the jurisdiction thereof" means governed.

  • bevis the lumberjack||

    I'm not an open borders guy. I'm a let's preserve our rights under the Constitution guy. So to all of those on the right complaining about this, the solution is the same as it is to all of those on the left bitching about the 2nd Amendment. If you don't like what the Constitution says, well, there's a process in place to change it. So change it. Trying to work your way around it by splitting legal hairs and arguing about what a comma means and arguing that plain language doesn't say what it obviously says is harmful to us all.

    And if you don't have enough people that agree with you to change it, well, tough shit.

  • ||

    Then the only solution is to completely seal the borders and not let "asylum" seekers in. I'm okay with birthright citizenship as long as our borders are impermeable and no one has any "right" to be here.

  • mad_kalak||

    I thought you wanted to nuke south of the Rio Grande. Which is it?

  • ||

    That would be the easiest, because then we wouldn't have to worry about a racially unassimilable underclass constantly clamoring for our wealth. But if we could just stand up to them and tell them they're not welcome here, it would have the same effect.

  • mad_kalak||

    While that sounds like a reasonable place to start, there isn't any agreement that the 14th Amendment means wrt citizenship of illegal aliens, so it's not actually a place of consensus to start, and your position is a non-starter. For comparison, this was why Heller and McDonald were necessary. The left said "militias" and the right said "individual right". We are in that same spot on this constitutional question.

    But why do we need to the Supreme Court to tell us the meaning of every nook and cranny of the Constitution?

  • bevis the lumberjack||

    There isn't any agreement on the 2nd because gun violence by people the left doesn't like drives the left crazy to the point of irrationality. There isn't any agreement on this because illegal immigration drives the right crazy beyond any point of rationality.

    This has been litigated. There are several posts on Reason listing the court cases and the outcomes. The same retort that goes to the left on 2A goes to the right on this one - leave our civil rights the fuck alone please. Thank you very much.

  • ||

    The creation of third world "citizens" is a "civil right?" On what planet?

  • mad_kalak||

    Your a prioris are all off.

    There isn't any agreement on the 2nd Amendment, because the left wants to disarm us not to prevent gun violence as much as give government more power over us. There isn't any agreement on illegal immigration because the left wants amnesty to get their votes to give themselves more power. The right sees that for what it is, as both you and I know if that Hispanics voted GOP because they were the "natural conservatives" the cucks say they are, the sides would flip where they stand on this.

    The specific question at hand has not been litigated, whether the children of illegal aliens are natural born citizens. For comparison, it's perfectly clear to an 2nd Amendment supporter that "assault weapons" are "arms in common use" and are protected, yet there are several cases decided on that issue and more pending, in which the Supreme Court should weigh in.

    So, here we are. Your attempt at consensus making fails utterly, and on the specific analogy you used.

  • bevis the lumberjack||

    "I want my Constitutional rights but I don't want others to have theirs".

    If you want to argue that illegal aliens aren't subject to the jurisdiction of the United States then there's a metric shit-ton of people in detention centers that need to be released...…..

  • mad_kalak||

    Again, your framing of the issue is wrong, in that you assume that "subject to the jurisdiction of" means what you think it means, and that's where the reasonable and well informed disagreements occur. Even if it assumes what you think it assumes, it doesn't logically follow that they need to be released from detention centers.

  • James Pollock||

    "your framing of the issue is wrong, in that you assume that 'subject to the jurisdiction of" means what you think it means'

    Words mean things.
    If you want to pursue the claim that "subject to the jurisdiction of" doesn't mean subject to the jurisdiction of, you're welcome to do so, but don't be surprised when intelligent people choose to ignore your imaginings.

    In your rush to twist ordinary words away from what they mean, you're trying to give the government the power to hold people over whom it has no jurisdiction. That's going to be rejected by libertarians and anyone else who values rule of law.

  • mad_kalak||

    You stupidly assume that only unintelligent people don't know that perfectly clear meaning of "subject to the jurisdiction of". I hate to inform you, but lot's of very intelligent people believe lots of things. Painting the other side as stupid does you a disservice. Ironic, because you are being quite stupid right now yourself.

    Frankly, I think the 14th Amendment *does* grant birth citizenship, but I'm willing to entertain the idea that it doesn't to the children of illegal aliens and have a reasonable debate without calling those that disagree with me stupid. I might even be willing to have the ends justify the means to make it so it doesn't apply to the children of illegal aliens at this point, if it means less votes for people like James Pollock.

  • Sarcastr0||

    cucks

    LOL

  • Rev. Arthur L. Kirkland||

    These guys are real he-man, Sarcastro. When their disaffection peaks and they can't handle modern American society, they're tough enough to do something about it, like spraying bullets at 97-year-old women to protect the white race.

  • mad_kalak||

    Okay, that's a bridge to far even for you, implying that I would shoot an old woman to protect the white race. Moreover, that madman was a Trump hater. And Jews, last time I checked, were white. Get your narrative on point man, good God.

  • James Pollock||

    "the left wants to disarm us not to prevent gun violence as much as give government more power over us"

    That's what the chemtrails and "immunizations" are for.

    " There isn't any agreement on illegal immigration because the left wants amnesty to get their votes to give themselves more power."

    There isn't any agreement on illegal immigration because A) there isn't a simple solution to solve it and B) elements on both sides benefit from it. That said, there is some evidence that supports your claim, and here it is: There's one subgroup of Hispanics that is reliably conservative: Former Cubans. Say, do any groups of Hispanics seeking to enter this country get any kind of special rules about? Cubans do.

  • mad_kalak||

    The left wins elections by expanding the franchise and/or creating client groups. I'm perfectly willing to admit, that if Hispanics voted GOP, there would be more calls for amnesty than from just Lindsey Graham and the Bushes. Likewise, you must, if you're intellectually honest, that if the shoe were on the other foot, that you would be taking a principled stand for the Rule of Law.

    And chemtrails and vaccine conspiracy theories, seriously? So, pointing out the obvious well known fact that the left wants to disarm us to prevent gun violence *AND* expand government power makes one a wingnut? Then I have to inform you, than more than half of America is nutty by your definition. If that's the case, maybe you're the crazy one.

  • Yogis_dad||

    The trouble with your argument is that the 14th Amendment does not confer citizenship on anyone born in the USA unless the parents are citizens.

  • apedad||

    "...unless the parents are citizens."

    Wrong. 14A sez no such thing.

  • kramartini||

    So I guess everyone agrees that illegals living in sanctuary cities are subject to the jurisdiction of the Federal government? Just checking...

  • Dilan Esper||

    I have never doubted this. Does anyone?

    The issue with sanctuary cities is whether cities have to assist in immigration enforcement. But ICE and federal law enforcement clearly do and can operate in sanctuary cities.

  • kramartini||

    There is a third issue, namely, whether cities are allowed to actively hinder immigration enforcement. (Answer: They aren't, but many will try.)

  • James Pollock||

    The need for sanctuary cities (and yes, there IS a need) comes about because the federal government deliberately fails to fully enforce the immigration laws, creating a pool of illegal immigrants who live in the state but the state is not allowed to treat differently from the lawful residents.
    Because they fear coming to the attention of the immigration officers, they fear dealing with the state officials... they don't report crimes, they don't come forward as witnesses. This creates real difficulties for the state law enforcement. So the state (or local) government has to reach out to those people and say "it's OK. If you're the victim of a crime, come tell us, so we can catch the criminal. If you're a witness to a crime, come tell us, so we can convict the criminal. Being in the country illegally is a violation of federal law, but it isn't a violation of state law, and we only go after people who break state laws."

    If the Congress would have authorized enough hearings officers to hear enough cases to deal with illegal immigration, instead of punting the question to the future for 3 decades (and counting), you wouldn't have a need for sanctuary cities.

  • kramartini||

    The Federal government did not create the "pool of illegal aliens"--the illegals did that themselves (with some help from their citizen accomplices).

    And the sanctuary city movement is not about the relatively small number who are victims of or state's witnesses to a crime. It is about attracting illegal aliens so as to increase access to Federal and state funds and to increase representation in state legislatures and Congress (since even non-voting illegals are counted for apportionment purposes, thus amplifying the vote of their citizen neighbors).

  • ScottK||

    I have no doubt of that.

    This website could be called MotivatedReason.com based on some of the nonsense written here by the usual suspects.

  • Yogis_dad||

    FWIW, Texas Governor Abbott signed the bill outlawing sanctuary cities in his state.

  • James Pollock||

    And his state government will have to deal with the problems that creates.

  • Yogis_dad||

    Birthright citizenship is the fruit of a comment by Associate Justice William O. Douglas on a ruling that had no bearing on the decision in question. For about a century after the 14th Amendment was certified (under dubious circumstances) as ratified, no one proposed that mere birth on US territory of a child to citizens of other countries conferred American citizenship on the child. Nor did the proponents of the amendment at the time. If the President instructs the DOJ to treat such children as they were before 1952, the open borders crowd will take him to court, but in a rational world he will prevail, as the intent of the Amendment was not as claimed by the plaintiffs.

  • John Rohan||

    Simple question. If illegal immigrants are "subject to the jurisdiction thereof", then can they be drafted into military service, and can they serve on juries?

    If the answer is anything other than an unqualified "yes" then it's hard to argue they are fully subject to our jurisdiction.

  • apedad||

    There's no constitutional barrier to illegal immigrants being drafted or serving on juries.

  • mad_kalak||

    You're not helping your case. While there is no constitutional barrier to it, they have been been drafted or served on juries a matter of law or historical practice, as juries are usually drawn from the voter roles. The closest you get is the Irish being drafted for the Civil War, but if memory serves, most Irish volunteered, and their being subject to the draft depended on other factors than just their presence in the states.

  • James Pollock||

    " While there is no constitutional barrier to it, they have been been drafted or served on juries a matter of law or historical practice, as juries are usually drawn from the voter roles."

    Juries are filled from a number of sources, of which voter rolls are but one. I got called to jury service in a county I've never registered to vote in, because I had mail sent there.

    Subject to the jurisdiction of means that a court of that jurisdiction may render judgment against you or your property. So if you WERE drafted, and you didn't show up, could the court find you guilty of a crime and send you to jail? If the answer to that question is yes, you are subject to the jurisdiction of that government. If you were called to jury duty, and didn't show up, can the court have a policemen pick you up and bring you to court to explain your absence? If the answer is yes, then you are subject to the jurisdiction of that government.

    I can't be drafted... I'm too damn old, I have a heart condition, and besides I completed a term of military service when I was young and healthy. I'm still subject to the jurisdiction of the United States.

    In terms of being subject to the jurisdiction of the United States, the difference between myself and an illegal immigrant is this: The illegal immigrant is subject to removal. That's it.

  • David Nieporent||

    By the way, although we have no draft, we do have its vestige in Selective Service Registration, and illegal aliens are required to register. (Well, adult male ones anyway.)

  • swood1000||

    Simple question. If illegal immigrants are "subject to the jurisdiction thereof", then can they be drafted into military service, and can they serve on juries?

    If the answer is anything other than an unqualified "yes" then it's hard to argue they are fully subject to our jurisdiction.

    But citizenship is granted to those born in the U.S., not to their illegal immigrant parents.

  • John Rohan||

    The issue is the meaning of the term "subject to the jurisdiction thereof" and it normally refers to the parents.

  • David Nieporent||

    The issue is the meaning of the term "subject to the jurisdiction thereof" and it normally refers to the parents.

    No. It. Doesn't.

    The 14th amendment, no matter how much loons want to misread it, does not say, "All people born or naturalized in the United States and whose parents are subject to the jurisdiction thereof..." It says that "All people born or naturalized in the United States and subject to the jurisdiction thereof..."

    Grammar. How does it work?

  • Rev. Arthur L. Kirkland||

    Grammar. How does it work?

    Much the same as capitalization.

    One way for educated, informed, successful people (the "elite," as some would describe those familiar with standard English), a different way for uneducated, downscale, disaffected people.

  • John Rohan||

    I'll repeat my response below. That's how jus sanguinis works - citizenship is conferred through the parents citizenship, which is also US law. In other words, the baby's status depends on the parents status. After all babies have parents, they don't just pop out of nowhere.

    Biology. How does it work?

  • David Nieporent||

    That's how jus sanguinis works - citizenship is conferred through the parents citizenship,

    Yes, and? What does that have to do with the United States, which has always followed jus soli, and in particular, the 14th amendment, which is what we're discussing, and which etched jus soli in constitutional stone?

  • James Pollock||

    "What does that have to do with the United States"

    It covers kids born to American women who happen to be in a different country when they give birth. That's what this argument is about, isn't it?

  • James Pollock||

    " In other words, the baby's status depends on the parents status. After all babies have parents, they don't just pop out of nowhere."

    Let's suppose we pass an amendment removing birthright citizenship. The change goes into effect, and birth tourism to the United States stops.

    A new business opens up... offering frozen US citizen sperm for use in fertilization of women outside the U.S.

    Those kids citizens, or no?

    If you gave a grudging yes, what if the mother shows up with a receipt showing she bought sperm from the outfit, and has a kid in tow of the appropriate age. That biology... how do we prove that the kid is (or is not) descended from an American? Universal DNA database of all Americans?

    At least under the current system, the birth records are made and kept in America.

  • swood1000||

    The issue is the meaning of the term "subject to the jurisdiction thereof" and it normally refers to the parents.

    So you're arguing that whether a person born and living in the U.S. is subject to the jurisdiction of the U.S. depends on whether his parents were subject to the jurisdiction of the U.S.?

    In any event Congress can grant citizenship to every person born in the United States and subject to the jurisdiction thereof without also saying that those not born in the U.S. but subject to the jurisdiction thereof (by reason of living here) can be drafted or can serve on juries.

  • John Rohan||

    Yes that's how jus sanguinis works - citizenship is conferred through the parents citizenship. After all babies have parents, they don't just pop out of nowhere. Funny thing, biology.

    The way US law is currently interpreted, it uses both jus sanguinis (citizenship by blood) and jus soli (by birthplace) at the same time.

  • swood1000||

    Yes that's how jus sanguinis works - citizenship is conferred through the parents citizenship. After all babies have parents, they don't just pop out of nowhere. Funny thing, biology.

    Right, if the parent is a citizen the child is a citizen. But that doesn't mean that whether a person born and living in the U.S. is subject to the jurisdiction of the U.S. depends on whether his parents were subject to the jurisdiction of the U.S.

  • James Pollock||

    " After all babies have parents, they don't just pop out of nowhere. Funny thing, biology"

    What babies don't always have is parents whose nationality is known. Rarely, you get parents who lack citizenship (anywhere) themselves... a problem that the 14th amendment was drafted to overcome.

  • John Rohan||

    This happens in rare cases in Europe too. Eventually a court makes a decision on the childs status, adoption, and citizenship ,etc based on the best evidence available.

  • James Pollock||

    "Eventually a court makes a decision on the childs status, adoption, and citizenship ,etc based on the best evidence available."

    Right.

    So, when you draft your constitutional amendment that repeals birthright citizenship, you'll want to replace birthright citizenship with something else, to make sure that courts know what rules to follow. If you just say "kids who were born here aren't citizens anymore", you're not giving the courts anything to work with, and you don't know what you'll get. So you'll want to work out what the rules should be, in advance, and put it all into the text of your amendment, so future judges aren't trying to figure out what you meant to do.

  • John Rohan||

    I know that some European countries essentially give birthright citizenship to anyone born there who would otherwise be stateless. It's not hard to do these things. People are exaggerating the consequences of eliminating it in the US.

  • MatthewSlyfield||

    "People are exaggerating the consequences of eliminating it in the US."

    And other people are engaging in delusional thinking when they imagine that it can be eliminated without a constitutional amendment.

  • James Pollock||

    " People are exaggerating the consequences of eliminating it in the US."

    This particular people is pointing out that if you just remove it, and don't have a good plan for what to replace it with, the results are going to be not at all what you expected.

    For example, if you take away birthright citizenship, but haven't inserted a plan to deal with stateless people, you will not experience a handful of people here and there. You will have hundreds of thousands of them, claiming to be stateless. And your method of proving what state they are actually citizens of would be... (crickets).

    So, instead of anchor babies, now the whole family gets to stay here legally.

    That's what you were shooting for, right?

  • David Nieporent||

    Simple question. If illegal immigrants are "subject to the jurisdiction thereof", then can they be drafted into military service, and can they serve on juries?

    Of course.

    (Whether people would want to draft them -- we don't even have a draft! -- or to allow/require them to serve on juries is a separate issue.)

  • James Pollock||

    If being draft-able and jury-serviceable is our test of citizenship (which it is not, but going along with it for just a second) then these people have lost their citizenship:

    Minor children.
    Womenfolk of all ages
    Currently incarcerated prisoners
    People who are medically unfit
    Seniors with dementia
    People who happen to be overseas, or more than 100 miles from where they registered to vote.
    People who are already serving in the military

    All of these categories contain either people who can't be drafted, people who can't serve on a jury, or both.

  • John Rohan||

    You miss the point. No one said being draft-able and jury-serviceable is our test of citizenship. Instead, the question is If being draft-able and jury-serviceable is our test of "subject to the jurisdiction thereof".

  • James Pollock||

    So, these categories aren't going to be removed from the lists of citizens, you're instead going to make them no longer subject the jurisdiction of the United States? You think that's better?

  • Brett Bellmore||

    "Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants "

    You realize that, as soon as you use the term "undocumented immigrants" for illegal aliens, you've outed yourself as dishonest? My wife is an immigrant. If her purse was stolen, you might describe her as "undocumented".

    But illegal aliens do not typically lack documents. On the contrary, they''ll generally have an excess of documents, it's just that the US ones will be forgeries.

  • James Pollock||

    As you say, "undocumented" and "illegal aliens" and "illegal immigrants" are all overlapping, but separate things.

    The Fourteenth amendment provides birthright citizenship to the children of all three, if the children are born within the United States.

    I can't speak for anyone else, but if I used the words "undocumented", I meant to refer to "undocumented", and not to "illegal aliens", a category that includes E.T. and Clark Kent (plus the Predator in Predator 2).

  • ||

    No it doesn't provide for that.

  • James Pollock||

    "No it doesn't provide for that."

    I'll see your "nuh-uh" and raise you a yeah-huh.

    If the 14A doesn't provide birthright citizenship, what, exactly, is President Trump "fixing" with his EO?

  • AmosArch||

    The Constitution means whatever people decide it means. We're just catching up to what Progs have already concluded whats the problem? If enough of us collectively decide that 'jurisdiction' means not illegals than thats what it means just like 'not infringing' means being forced to disassemble your gun and lock it in a safe. And 'privacy' is written in invisible ink on the back of the last page of the BoR and means the right to kill babies and nothing else.

  • Sarcastr0||

    The other side (as characterized by you) is wrong, therefore you can do wrong.

    And with that rationalization, you are now free. Witness a man without principles, folks.

  • Bonhomme Richard||

    You quote Senator Howard that eligibility for birthright citizenship "will not, of course, include [children of] persons 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."

    Then you completely ignore his exclusion of foreigners and aliens. Please explain.

  • AmosArch||

    You're talking to a brick wall with a tape player on the other side.

  • Sarcastr0||

    As discussed above, that sentence describes one kind of person, not a bunch in series.

  • James Pollock||

    "Then you completely ignore his exclusion of foreigners and aliens. Please explain."

    He didn't put his exclusion of foreigners and aliens in the text that was ratified. It's not part of the Constitution, and we judge what's Constitutional based on what IS in the Constitution.

  • vaadu||

    Please stop using the description 'undocumented immigrants'. You are twisting the facts to make it sound as if their is a clerical error.

    If you came home from work and found someone in your house without your permission you would call law enforcement. If trespasser protested that he was an undocumented resident of the house you would laugh at him, and rightly so. In your country without permission is no different.

  • ||

    An undocumented resident would be a tenant who didn't have a copy of his lease with him.

  • James Pollock||

    "Undocumented" is a category that is separate and distinct from "illegal immigrants", which is a category which is separate and distinct from "illegal aliens". These categories overlap in a lot of ways but there are places where they don't.

    "If you came home from work and found someone in your house without your permission you would call law enforcement"

    Depends on why they're there. Uniformed member of the fire brigade engaged in fighting a fire? Landlord fixing that leaky sink I complained about? Person who claims to be my daughter because she is?

    "In your country without permission is no different"

    There's 300 million or so people in my country who never asked my permission. I'm supposed to call law enforcement on all of them?

  • swood1000||

    "Undocumented" is a category that is separate and distinct from "illegal immigrants", which is a category which is separate and distinct from "illegal aliens". These categories overlap in a lot of ways but there are places where they don't.

    What's the difference between an "undocumented immigrant," an "illegal immigrant" and an "illegal alien"?

  • ||

    Liberals oppose anything that stands in the way of turning America into a mestizo nation. Apparently they think Guatemala and Honduras are superior to America and want to make America more like them.

  • James Pollock||

    Sounds like somebody's a little bit afraid of some competition.

  • ||

    From these savages?

    https://stopobamanowsd.files.wordpress. com/2013/04/illegalimmigrants.jpg

  • James Pollock||

    You're the one acting afraid. It's not my fault that you're acting scared of something that isn't scary.

  • ||

    I'm not "scared" of them per se. I know that they are genetically low IQ and prone to violence and alcoholism, and as such, degrade America. American Indians were scalping each other and warring when we came to the New World. Why are you surprised that their descendants (most "Hispanics" are at least 80% Mayan or Aztec) are similarly violent and uncivilied?

  • James Pollock||

    "I'm not 'scared' of them per se."

    As I noted previously, somebody is acting like he is scared of the competition. That somebody is you.

  • Liberty Lover||

    I always thought you needed at least one legal citizen parent to have Birthright Citizenship. That would mean Trump is enforcing, not changing, the Constitution.

  • Sarcastr0||

    Seems legit.

  • James Pollock||

    "I always thought you needed at least one legal citizen parent to have Birthright Citizenship."

    The point of birthright citizenship was the make citizens of all the former slaves who were freed by the 13th amendment. They had been slaves, not citizens, and their parents were, in most cases, either foreigners and not citizens or slaves themselves and not citizens. Thusly, nearly all the freed former slaves did not have any parents who were citizens.

  • kramartini||

    It is interesting how to the "anti-intellectual" Trump continues to spawn so much civic debate.

    I strongly suspect that Trump's initial executive order will be defeated in the courts. Most likely, the Roberts court would strike it down on statutory grounds and avoid the Constitutional issue.

    Such a ruling would set up a political issue that would energize Trump's base while weighing down Democrats with their support for anchor babies...

  • kramartini||

    Strike "to" in the first sentence. Reason Editors--please create an "Edit" function...

  • James Pollock||

    "It is interesting how to the "anti-intellectual" Trump continues to spawn so much civic debate."

    It shouldn't be. Would you be surprised to learn that a person who doesn't follow the accepted rules of, say, golf would promote a lot of talk about him back in the country club bar? How about when he showed up and course, tromped all over it, and loudly announced that he was better at golf than any of the people who know how to play golf?

    "I strongly suspect that Trump's initial executive order will be defeated in the courts. Most likely, the Roberts court would strike it down on statutory grounds and avoid the Constitutional issue"

    I'd give even odds on a 9-0 per curium ruling of less than 3 pages (5 if you count the footnotes).

  • kramartini||

    Apparently you are not interested in the civic debate.

  • Sarcastr0||

    The fact that some think everything Trump does is a masterstroke is sadly not too surprising.

  • kramartini||

    He is a master at riling up his base, which seems to be the point, given the timing of the announcement.

    And he also does make a valid point in that no policy decision was ever made to give citizenship to children born to those in the country illegally. The language in the 14th Amendment was adopted for the sole purpose of ensuring that freed slaves would be guaranteed citizenship--its application to anchor babies is clearly unintended.

    That said, a Constitutional provision or statute that uses language that is objectively over-inclusive to its subjective purpose is still applicable to the full extent of its original public meaning.

  • M.L.||

    The more I study this issue, the more I am convinced that Harry Reid and others since the 1990s have been right, and the "prevailing" view has been wrong.

    1. The drafters of the 14A clearly thought that the citizenship clause was "simply declaratory" of current law -- which was the 1866 Civil Rights Act: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." A child born in the United States to foreign national parents was, through their parents, "subject to a foreign power" and not eligible for U.S. citizenship under the Act. That's why Sen. Howard commented that the children of "foreigners" and "aliens" would not be included, and he thought this to be obvious. Of course, the point of this was to ensure citizenship for freed slaves.

    2. It appears that the U.S. first "began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s." This has simply been a custom and practice, rather than a Constitutional rule. Prior to that, the Indian Citizenship Act of 1924 would not have been otherwise necessary.

  • M.L.||

    3. As to precisely when an immigrant is no longer a "foreigner" or "alien," of course the main answer is by the rules of naturalization as determined by Congress. But the custom and practice has not always been as strict as the 14A would permit. There were "open borders" at the time with no rules against entering the country. It seems there was a presumption that those who permanently settled or "domiciled" within the U.S. -- with the consent of the U.S. -- had submitted to and thereby through mutual consent become "subject to" the "full political" jurisdiction that the drafters of the 14A unambiguously intended to reference. This reflects the repudiation of jus soli "birthright subjectship" of feudal descent and British common law, seen most prominently in the Declaration of Independence, in favor of "citizenship" (a word not familiar to British common law) based on bilateral consent.

  • James Pollock||

    "The drafters of the 14A clearly thought that the citizenship clause was "simply declaratory" of current law"

    That's nuts.
    The 14A includes birthright citizenship...for both federal and state citizenship... to solve a specific problem... people who were previously not considered citizens, born to people also not considered citizens, were to be extended citizenship. They had to make it virtually airtight, because the legislatures in the formerly Confederate states were actively attempting to thwart efforts to make citizens of "those people". Federal statutes could extend rights to them that fell within the federal power, but to make them state citizens required Constitutional authority that the federal government didn't have. So they altered the Constitution so that it did, and does.

    "Prior to that, the Indian Citizenship Act of 1924 would not have been otherwise necessary."
    The Indians were (mostly) subject to separate sovereign. The tribes were independent nations and the U.S. government did not claim jurisdiction over their internal affairs... they got "treaties", not "court orders".

  • M.L.||

    Pollock -- Please read at least some of the relevant materials before replying to me with your ignorance.

  • James Pollock||

    M.L. Please grow a functioning brain cell.

  • swood1000||

    A child born in the United States to foreign national parents was, through their parents, "subject to a foreign power" and not eligible for U.S. citizenship under the Act.

    Wong Kim Ark was born in San Francisco of Chinese parents who did owe allegiance to a foreign power under both the laws of China and the United States at the time, yet the Supreme Court said that he was a citizen by reason of his birth here.

  • M.L.||

    swood1000--

    The logic of Wong seems to be this:

    In becoming legally and lawfully and permanently domiciled within the U.S., immigrants (or children thereof) were thereby exercising their inalienable right, recognized in the Declaration of Independence (albeit not by the laws of other nations), to "dissolve" the "political connection" between themselves and their country of origin.

  • swood1000||

    In becoming legally and lawfully and permanently domiciled within the U.S., immigrants (or children thereof) were thereby exercising their inalienable right, recognized in the Declaration of Independence (albeit not by the laws of other nations), to "dissolve" the "political connection" between themselves and their country of origin.

    Are you saying that since illegal aliens are not legally and lawfully domiciled within the U.S. they are unable to dissolve the political connection between themselves and their former country? But suppose the alien, as he leaves his former country, renounces all connection to it. Is that ineffective because he is not yet legally domiciled in another country? Why should that matter if this is his inalienable right?

  • M.L.||

    I don't think so - one should be able to disassociate themselves from a government in a number of ways, mainly by undertaking to go to any of the hundreds of other countries that will have them. But I suppose you have to live somewhere. Of course it's rare that you can attempt to simply Declare Independence. And of course, what we consider inalienable rights are, by and large, not recognized around the world, meaning that they are being infringed upon and/or not exercised or realized. But the issue of whether illegal immigrants have "lawfully" domiciled in the U.S. pertains more to the permission and consent of the U.S. to take on that citizen, while simply taking up permanent residence even unlawfully would indicate such consent on the part of the immigrant. Consent is a two-way street. But as mentioned, it gets murky when our government policy has encouraged illegal immigration, contrary to the will of the sovereign People.

  • swood1000||

    I don't think so - one should be able to disassociate themselves from a government in a number of ways, mainly by undertaking to go to any of the hundreds of other countries that will have them.

    So do you agree that a person is no longer "subject to a foreign power" as soon as he renounces his association to the foreign power, and that being legally domiciled in the U.S. is not a part of that?

    If "subject to the jurisdiction thereof" means exactly the same thing as "subject to a foreign power" then it would seem that it provides little hindrance to the illegal alien. However, if "subject to the jurisdiction thereof" also excludes those whose entry into this country was forbidden or not consented then illegal aliens have a more difficult task.

  • M.L.||

    No. The logic seems to be that, by the act of becoming domiciled in the U.S., an immigrant might be considered to have effectively renounced his subjectship to a foreign power.

    But the U.S. clearly has the authority to decide whether someone is permitted to "domicile" themselves in the U.S. Now, have illegal immigrants properly become "domiciled" in the U.S., so as to be considered subject to its jurisdiction under Wong? Perhaps not, since domicile seems to implicate a legal and lawful act.

  • swood1000||

    You seem to be conflating (a) whether the United States has consented, by allowing him to become domiciled, and (b) whether the immigrant is subject to a foreign power. Let's talk about (b) only. Do you agree that a person can renounce his association with a foreign power in ways other than becoming domiciled somewhere else? Can he do so by leaving his former country, entering Mexico, and announcing that he renounces his former citizenship? If so, and if he does that, then at that point he is no longer subject to that foreign power, meaning that this particular requirement for U.S. citizenship has been satisfied, right?

  • M.L.||

    "Do you agree that a person can renounce his association with a foreign power in ways other than becoming domiciled somewhere else?"

    Practically speaking -- no. Maybe you could build a concrete island in the middle of the pacific, or carve out a subsistence living in Antarctica? Either that or revolution or secession.

  • swood1000||

    But U.S. citizenship can be renounced without there being any other citizenship or domicile to take its place.

    Persons intending to renounce U.S. citizenship should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protection of any government. They may also have difficulty traveling as they may not be entitled to a passport from any country.
  • David Nieporent||

    2. It appears that the U.S. first "began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s." This has simply been a custom and practice, rather than a Constitutional rule. Prior to that, the Indian Citizenship Act of 1924 would not have been otherwise necessary.

    It does not "appear" that at all. That is a naked assertion by Eastman. He cites nothing at all to substantiate that claim.

  • M.L.||

    Sorry, but you'll have to read better. For instance:

    "Treating Wong Kim Ark has having "long-settled" the matter, as Chavez and others do, runs into other problems as well. For example, none of the various statutory offers of citizenship that Congress made to Native Americans in the 1920s would have been necessary if Wong Kim Ark had already settled the issue as a matter of constitutional right. The roughly 1.2 million children born during the 1920s to guest workers from Mexico and Central America who were "repatriated" along with their parents after work dried up in the wake of the Great Depression would have had claims to citizenship that simply were never made. The same is true of the Braceros program in the 1950s and early 1960s; when it ended, all of those guest workers, and the many children who had been born to them during the program, were returned home to their homelands, and no one has been able to identify for me a single instance of any of them claiming a right to stay in the United States on the ground they were "birthright citizens" under the language of the 14th Amendment."

  • M.L.||

    More:

    "Prior to 1966, the federal form used to apply for a passport, for use by individuals who had been born on U.S. soil (a separate form existed for use by those born abroad), required not just proof of the place and date of the applicant's birth (the born on U.S. soil part), but also extensive additional proof of the place of the father's residence, his place of birth, the date of his emigration to the United States, and if naturalized, the date and place of his naturalization. See 22 C.F.R. § 33.23 (1938). None of that additional information would have been necessary if the birth on U.S. soil was alone sufficient to confer citizenship. Those additional requirements were inexplicably dropped from the form in 1967, such that now proof of birth on U.S. soil is all that is required to establish citizenship. 22 C.F.R. § 51.43 (1967). "

  • Voize of Reazon||

    A challenge! I can't find copies of those old forms but I have found the 1938 edition of the Federal Register where the regulation was published.It doesn't explain what the information is used for, but it is interesting for a couple of reasons. Here is a bit of it (note: their capitalization not mine!)

    A. Each Application of a Native Citizen for a Passport Must Contain the Following:
    23. The applicant's name.
    24. The place and date of the applicant's birth.
    25. The name, date and place of birth, and place of residence, of the applicant's father. (If the applicant was born outside of the United States at or after noon, Eastern Standard Time, May 24, 1934, of an alien father and an American mother, a supplemental affidavit shall be required giving the name, and date and place of birth, of the mother and complete data concerning the manner and date of her acquisition of American citizenship).
    [...;]
    28. If the applicant or his father was born abroad, the period of residence of the applicant outside of the United States.

    It goes on to also require the names of the countries the applicant intends to visit, and the time period, and the intended port of exit.

  • Voize of Reazon||

    Where the applicant is going and when clearly doesn't bear on their citizenship, so the fact that it was asked for doesn't necessarily mean that the government considered it determinative of that status. There have been cases of the government denying passports to citizens or even revoking them (e.g. Snowden), so the answers might be used for that determination, or maybe just because they wanted the data.

    But more interesting are the clauses dealing with applicants born outside the United States. The "Native Citizen" described in the heading must refer to a citizen at birth, and not necessarily a citizen through the action of the 14th amendment. As you know, there are several other paths to birth citizenship created by Congress, and certainly some of this information was required to cover those cases. And even if the applicant was born in the United States they might want to check whether the father was an accredited diplomat at the time of their birth.

    So, it requires some faith to take this as evidence that birthright citizenship wasn't recognized before the sixties. I suspect Eastman doesn't have any evidence that citizenship was actually denied to someone US-born, otherwise he would offer that instead of this.

  • M.L.||

    Nice digging and I would agree with your analysis here, but perhaps you missed my post right before this one. Eastman is not relying heavily on this passport stuff as evidence that birthright citizenship wasn't recognized before the 60s. He is merely citing it as the earliest example identified to date of something that could be might construed as an official adoption of so-called "birthright citizenship." For his evidence that it was not adopted prior to that, see the previous post, as well as the simple fact that nobody has identified an earlier example of an official "birthright citizenship" policy.

  • NToJ||

    "For his evidence that it was not adopted prior to that, see the previous post, as well as the simple fact that nobody has identified an earlier example of an official "birthright citizenship" policy."

    Here's one that predates the 1960s.

  • swood1000||

    None of that additional information would have been necessary if the birth on U.S. soil was alone sufficient to confer citizenship.

    But since when have government forms been known to only ask for information that was necessary? Sometimes they are used simply as a way of gathering demographic data. Also it appears from the Federal Register that Voize of Reazon found that the information was asked for but proof was not required.

    If an applicant born in the U.S. of parents who were not U.S. citizens were not considered to be a citizen simply by being born here, then wouldn't the application have also asked for the naturalization information for such an applicant?

    So the passport application seems not to be very strong support for the proposition that blanket birthright citizenship was previously not recognized.

  • M.L.||

    See my post in reply to Reazon above. Eastman is not relying on the 1938 passport application as strong evidence, he is merely citing the 1967 change as the earliest example of something that might be called an official recognition of so-called "birthright citizenship."

  • swood1000||

    The roughly 1.2 million children born during the 1920s to guest workers from Mexico and Central America who were "repatriated" along with their parents after work dried up in the wake of the Great Depression would have had claims to citizenship that simply were never made.

    Fortunately, government action, especially in earlier years, that ran roughshod over individual constitutional rights, is no evidence that those rights did not exist. Furthermore, how many of the parents who were being sent back in the 1920s were willing to go back without their children? These days they know that there are plush federal facilities available to take care of the kids but public opinion didn't demand such things in those days. Also, all the federal welfare programs didn't exist then and upward social mobility was perhaps not as easy for them as it is today, so what was the incentive to have the kids stay in the U.S? And there was no major political party who identified these people as prime potential members, providing aid and comfort to them.

    The Braceros program also happened in the years before large-scale government largess.

  • M.L.||

    I disagree -- these items are most certainly evidence, in fact very strong evidence, that the US had not then begun "to treat mere birth on U.S. soil as sufficient to establish citizenship."

    I agree with you that this is not conclusive evidence that "those rights did not exist" -- i.e. that Eastman's interpretation of the citizenship clause is the correct one. But that is not the proposition that this evidence was employed in direct support of. Rather, it was the intermediary conclusion, if you will, that the U.S. "first began to treat mere birth on U.S. soil as sufficient to establish citizenship sometime in the mid-1960s." Which in turn lends some support to his main thesis, in large part because it undermines a primary argument of his opponent arguing the opposite conclusion.

  • Chuck Myguts||

    Would someone tell me if the children born to Wong in China were US citizens? Would the citizenship be passed on to his great grand children? Could the issue alive now be able to claim US citizenship

    "There was nothing sinister about Wong's second trip. While in China, writes Berger, "he met his oldest son for the first time and conceived another, Wong Yook Thue."

  • swood1000||

    It seems to me that at the time of the 14th amendment (and earlier under the law of England) the notion of being in the country illegally or against the wishes of the country was just not considered as an element of jus soli or birthright citizenship. The closest thing to being in the country illegally was the military invader and birthright citizenship was clearly denied in that circumstance.

    Is it clearly appropriate to take such laws and extend them automatically to the case of the alien who entered the country against the wishes of the country, especially when everyone agrees that the purpose of the language in 14th amendment was to address the situation of former slaves?

    Is it unreasonable to interpret "subject to the jurisdiction thereof" to exclude those who whose presence in the U.S. was expressly not consented to by the U.S. government?

  • Sebastian Cremmington||

    Apparently the modern passport and customs process developed around WW1 and according to Wikipedia standards were lax following the development of the railroads in the prior century which jibes with my knowledge of that time period.

  • swood1000||

    Can a country have jurisdiction over a person forced upon it against its wishes? Is mutual consent not required?

  • Sebastian Cremmington||

    I assume our overt racism did a lot of the work for most of our nation's existence.

  • swood1000||

    How does that relate to whether a country can have jurisdiction over a person forced upon it against its wishes?

  • swood1000||

    How does that relate to whether a country can have jurisdiction over a person forced upon it against its wishes?

    But I'll agree that mutual consent is not required for a country to have jurisdiction over a person, a prisoner of war for example.

  • Sebastian Cremmington||

    Because it isn't an issue that comes up a lot in overtly racist nations like South Africa and Jim Crow America.

  • M.L.||

    I think you are on the right track. The point here is to determine the principle at work, which is then applied to future situations that were not considered at the time, such as illegal immigration.

    And the principle at work seems to be this: consent. Bilateral consent.

    The problem with illegal immigration, though, is that the U.S. government has impliedly consented to it. They have done so largely contrary to the will of the American people, but they have done so nonetheless. They haven't tried to crack down on employers, or pursued any of the myriad other avenues available; instead they've encouraged it in some ways.

    But birth tourism? I think that can Constitutionally be kicked to the curb.

  • James Pollock||

    "And the principle at work seems to be this: consent. Bilateral consent."

    And how does a newborn infant signify consent?

  • M.L.||

    When they come to the age of consent, they signify their consent by choosing to live in the country and not renounce their citizenship as was permitted by the Expatriation Act of 1866, which reflected the concepts of the Declaration of Independence.

  • James Pollock||

    So your plan is to use taxpayer funds to feed, clothe, and house these people for 18 years?

  • M.L.||

    What are you talking about?

  • Sebastian Cremmington||

    Exactly, and that is why I support DACA while also supporting Trump on immigration. Bush and Obama sent clear signals to illegals that we wanted them here and our immigration laws could be ignored. Sorry Republicans, but your overwhelming support of Bush in 2004 means you consented to illegal immigration.

    The problem for the Republican base now is that the Democrats support the status quo and every year nothing is done benefits Democrats which is why it was so counterproductive to undermine Rubio's reform effort.

  • donojack||

    Some form of conditional amnesty in exchange for robust border enforcement makes so much sense that it's likelihood of coming about is nil.

  • swood1000||

    Some form of conditional amnesty in exchange for robust border enforcement makes so much sense

    The problem is that we tried this before (under Reagan) and those promising the robust border enforcement didn't follow through on their promises, making people ask why they should be trusted this time.

  • James Pollock||

    " Bush and Obama sent clear signals to illegals that we wanted them here and our immigration laws could be ignored."

    Bush and Obama (and every President back to Reagan) is hamstrung by the fact that every person to be deported gets due process, and Congress capped the number of people to hear those cases and a grossly inadequate number. We can deport around 400,000 people per year, and guess what? If you look at the number of deportations per year, it's held steady at a little over 400,000. (It varies because some people who get a deportation hearing don't get deported, because they make a legal case that allows them to stay... such as being a citizen of the United States.)

    Given that there are more than 400,000 illegals present, and more coming, the deportation system cannot catch up. It's like bailing out a leaking rowboat with a thimble. President Obama asked Congress for a slightly larger thimble, and Congressional Republicans didn't even bother to convene to discuss the request.

    In short, laying the problems with immigration enforcement on the President is just wrong.

  • Sebastian Cremmington||

    I disagree because the president has the bully pulpit and it is the voice of the president foreigners hear. Bush and Obama were very clear on this issue—illegals are welcome and our immigration laws can be ignored. Trump is proof that Republicans supported open borders because why is Trump necessary otherwise?? Trump beat a field of open borders Republicans but unfortunately for the base they overwhelmingly supported Bush in 2004 when his open border views were known and illegals started lives in America based on Bush's consent.

  • swood1000||

    The problem with illegal immigration, though, is that the U.S. government has impliedly consented to it.

    ICE employs 20,000 people and has an annual budget of $6 billion. Does this sound like consent?

  • James Pollock||

    ICE isn't the bottleneck.
    It's deportation hearings that are the bottleneck. If the number of qualified hearings officers doubled tomorrow, ICE would have no trouble filling up the hearings docket with cases.
    Congress has effectively capped the number of deportations to a little over 400,000 per year, despite knowing that there are millions of illegals already present in the country. THAT sounds like implied consent to let them stay.

  • M.L.||

    Perhaps not. I'm just saying, maybe you could make that argument, given what many people seem to see as lax enforcement.

  • David Nieporent||

    Is it unreasonable to interpret "subject to the jurisdiction thereof" to exclude those who whose presence in the U.S. was expressly not consented to by the U.S. government?

    Yes.

    It would be very unreasonable to say that illegal aliens are free to commit crimes without fear of punishment because they're not subject to the jurisdiction of our laws.

  • swood1000||

    It would be very unreasonable to say that illegal aliens are free to commit crimes without fear of punishment because they're not subject to the jurisdiction of our laws.

    But American Indians, who are not "subject to the jurisdiction" of our laws, are still subject to an overriding federal authority. So a person can be not subject to our jurisdiction for some purposes but still subject for other purposes.

  • M.L.||

    David -- Don't be thick. It's pretty conclusive that "subject to the jurisdiction" did not originally mean simply "subject to U.S. criminal law."

  • James Pollock||

    "It's pretty conclusive that 'subject to the jurisdiction' did not originally mean simply 'subject to U.S. criminal law.'"

    No, it means subject to having judgments rendered in a U.S. courtroom. That isn't JUST criminal law.

    But being NOT subject to having judgments rendered in a U.S. courtroom would, in fact, mean that U.S. criminal law could not be applied.

  • M.L.||

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

    -The Slaughterhouse Cases

    "The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."

    - Elk v. Wilkins

    "[S]ubject to the jurisdiction meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government."

    - Thomas M. Cooley, The General Principles of Constitutional Law in America

  • swood1000||

    "It's pretty conclusive that 'subject to the jurisdiction' did not originally mean simply 'subject to U.S. criminal law.'"
    No, it means subject to having judgments rendered in a U.S. courtroom.

    But Indians were subject to having judgments rendered in a U.S. courtroom, yet were held to be not 'subject to the jurisdiction' of the U.S. for purposes of citizenship.

  • James Pollock||

    "But Indians were subject to having judgments rendered in a U.S. courtroom, yet were held to be not 'subject to the jurisdiction' of the U.S. for purposes of citizenship"

    This isn't the gotcha you imagine.

    In 1868, some Native Americans were ordinary Americans, and some were treated as subjects of a separate sovereign (They kept to the company of their own tribes, and were governed by their tribal leaders) If they didn't make an effort to bring themselves to the attention of the U.S. government, they were largely left alone. They were not taxed, for example. This is why they spent a hundred years explaining the differences between the different types of Native Americans, with lots of different definitions. "Indians not taxed", for example.

    Some Native Americans were subject to the jurisdiction of the United States, and some were not. After the 14th amendment, The ones who WERE subject to the jurisdiction of the United States had children who were automatically U.S. citizens.

  • swood1000||

    Some Native Americans were subject to the jurisdiction of the United States, and some were not. After the 14th amendment, The ones who WERE subject to the jurisdiction of the United States had children who were automatically U.S. citizens.

    I am simply contradicting your apparent assertion that 'subject to the jurisdiction of the United States' means 'subject to having judgments rendered in a U.S. courtroom.'

    Those who were born into Indian tribes were not 'subject to the jurisdiction of the United States,' (for purposes of citizenship) but they were subject to having judgments rendered in a U.S. courtroom.

  • jerryg1018||

    The Fourteenth Amendment couldn't be any clearer and the Supreme Court has affirmed it numerous times.
    The Fourteenth Amendment applied to the freed slaves giving them citizenship in both the country and the states they lived in. Nobody else.

  • jerryg1018||

    The Fourteenth Amendment couldn't be any clearer and the Supreme Court has affirmed it numerous times.
    The Fourteenth Amendment applied to the freed slaves giving them citizenship in both the country and the states they lived in. Nobody else.

  • donojack||

    It could be clearer if it said that it only applied to freed slaves but it doesn't, it say "All persons."

  • swood1000||

    It could be clearer if it said that it only applied to freed slaves but it doesn't, it say "All persons."

    Actually it says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof." The term "subject to the jurisdiction thereof" was based on the language of the Civil Rights Act of 1866 which had used the term "not subject to any foreign power" but then also specifically excluded Indians not taxed.

    For the 14th amendment they changed the language to "subject to the jurisdiction thereof" which then would not require that Indians be separately mentioned as not receiving citizenship, since they were not subject to the jurisdiction of the U.S. The Supreme Court later affirmed that for this reason Indians were not made citizens by the 14th amendment even though they were obviously subject to U.S. jurisdiction for some purposes.

    Therefore, "subject to the jurisdiction thereof" should be interpreted as having a meaning that includes "not subject to any foreign power," which would exclude, for example, the children of foreign nationals in this country temporarily and without any intention to take up permanent residence here. Also it should exclude those over whom the U.S. has refused to extend citizenship or even allow into the country. Just as with the Indians, illegal immigrants can be subject to U.S. jurisdiction for some purposes (e.g. criminal laws) but not for all purposes.

  • NToJ||

    "The term "subject to the jurisdiction thereof" was based on the language of the Civil Rights Act of 1866..."

    That phrase isn't in the CRA of 1866. The usual rule of interpretation is that when a prior legislature uses a term of art and a later legislature uses a different term, you don't interpret them to mean the same thing.

  • Voize of Reazon||

    Even moreso when it is the same legislature.

    The same Congress, and many of the same actors, authored the Act and then the amendment. You would think there would be some trace of their reasoning for choosing a different expression, but I haven't found any record of the question being asked never mind answered. It isn't much of a stretch to assume they felt the second phrasing was an improvement over the first, through they were intended to express the same intent. Comparing them I would judge that the first expression focuses on the person's relationship with their foreign sovereign, while the second highlights the relationship with the United States; maybe they just felt that the second better expressed the essence of the condition they were describing.

  • swood1000||

    Senator Jacob Howard of Michigan, who introduced the language "subject to the jurisdiction thereof," said that this language was just declaratory of what he regarded as the law of the land already, and the law of the land at the time was the language of the 1866 Civil Rights Act. See this debate.

  • Voize of Reazon||

    That is what i meant by "express the same intent". But if the earlier phrase were the perfect expression of that intent he would have used it again, and the fact that he didn't suggests that he considered the second an improvement.

  • M.L.||

    Well, he didn't say that the earlier phrase was the "perfect" expression. Only that the new phrase was "simply declaratory" of the prior expression. An improvement, yes -- quite naturally, he should have thought that one phrase is better than two. I just don't see any reason not to take Jacob Howard at his word here regarding what the intent and meaning of this language was, especially when these particular words were rather clear in meaning, compared to other vexing issues raised by the record of the 39th Congress. And it was right after these words that he went on to say that the citizenship clause would exclude "persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States." :)

    Let's also remember that a similar logic applies in this way: If what they really meant was "excluding Indians not taxed" and diplomats, then why in the hell didn't they just say that and save us all this trouble?!?

  • James Pollock||

    "It could be clearer if it said that it only applied to freed slaves but it doesn't, it say 'All persons.'"

    From which crazy liberals have reached the conclusion that it should be applied to all persons, the loony lefties that they are.

    Arguing that birthright citizenship should somehow be tortured to read "but not children of illegal immigrants" is roughly on par with reading "probable cause" as meaning "a policeman wants to search you." No searches without probable cause!

  • swood1000||

    Arguing that birthright citizenship should somehow be tortured to read "but not children of illegal immigrants" is roughly on par with reading "probable cause" as meaning "a policeman wants to search you."

    Should birthright citizenship be tortured to read "but not children of Indians"?

  • James Pollock||

    No. Which is why it isn't, wasn't, and hasn't.

  • swood1000||

    No. Which is why it isn't, wasn't, and hasn't.

    Please substitute the following for my question above:

    Should birthright citizenship be tortured to read "but not children of Indians who are born in Indian tribes," since these people clearly were not granted birthright citizenship by the 14th amendment?

  • swood1000||

    Suppose the Supreme Court decided that the meaning of "subject to the jurisdiction thereof" excludes illegal immigrants and foreigners visiting on a visa. That would certainly throw into confusion the status of a great number of people. If Congress could not agree to pass a law reinstating the automatic citizenship of everyone born here they probably would pass a law granting citizenship to all people born here prior to a certain date. Then birth certificates would need to include whether the person was born "subject to the jurisdiction" of the U.S. Parents who were born after the grandfathered date would need to supply proof of citizenship in order for their children to be citizens.

    But this type of thing is already being required. In Ohio, driver's licenses are stamped "Not for federal ID" and after October of 2020 such ID will not be accepted to get onto an airplane. To get the compliant ID some serious documents will need to be presented down at the DMV.

  • kramartini||

    Not sure if this discussion is still active, but it occurs to me that there is a simple test that could be easily applied to determine which foreigners born on US soil are "subject to the jurisdiction thereof".

    First consider that the main difference between citizens and foreigners is that citizens are subject to all US laws when abroad, whereas foreigners are not.

    In particular, US citizens who live abroad, and who earn income only in foreign countries are still required to file US income tax returns and pay any tax due related to those returns. Foreigners who live abroad are not subject to US tax on non-US income.

    Except that some foreigners who live abroad are subject to US income tax, even if they earn no income in the US in a given year, namely, permanent residents (Green Card holders).

    So here's is the test: If a person can escape US income tax liability by merely leaving the country and earning no US income, that person is not "subject to the jurisdiction" of the US for 14A purposes.

    Or more generally, those who can escape the jurisdiction of the US by merely leaving the country are not "subject to the jurisdiction thereof" for purposes of birthright citizenship.

  • swood1000||

    Then those who oppose citizenship for children born in the U.S. to illegal immigrants need only pass a law saying that undocumented immigrants who leave the country are not required to file a federal income tax return on their non-U.S. income (which they were not going to do anyway).

  • kramartini||

    What you suggest is the current state of the tax law.

    And the tax law is merely an example of the more general point that US citizens are subject to US jurisdiction even when they leave the US, whereas foreign visitors to the US are not. That difference in jurisdiction provides a conceptual basis for interpreting the text of the Constitution as limiting birthright citizenship in a manner that excludes transient visitors and illegals.

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