Trump No Conservative in Opposing Birthright Citizenship

 

Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship. This week he claimed that children of aliens who are born on U.S. territory “do not have American citizenship” and that their right is “not going to hold up in court.”

Trump’s argument runs headlong into the Constitution. His proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative. Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.

Trump’s proposal to end birthright citizenship can survive only with a plastic, malleable Constitution. Those who just two months ago decried the Supreme Court’s imposition of same-sex marriage throughout the nation should be the first to reject Trump. His eagerness to read native-born children out of the Fourteenth Amendment smacks of the same liberality toward the Constitution which afflicted the Supreme Court in Obergefell v. Hodges. The text, structure, and history of the Constitution all show that the 14th Amendment recognizes the citizenship of any child born on American territory.

First, the constitutional text. Section One of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e. birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e. citizenship of the parents).

Trump and his supporters may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.

Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.

Second, constitutional history. There is only one blemish on the American tradition of birthright citizenship: Dred Scott v. Sanford (1857). In that notorious case, Chief Justice Roger Taney led a 5-4 majority of the Supreme Court in striking down the Compromise of 1850, which limited slavery in the territories. Taney found that slaves were property and they, and their children, could never be citizens, even though born in the United States. Dred Scott helped precipitate the tragedy of the Civil War by preventing Congress from limiting the spread of slavery and reaching a compromise between North and South. Section One of the 14th Amendment directly overruled Dred Scott’s selective grant of citizenship to some races but not others.

The universal nature of birthright citizenship was made clear in the Amendment’s drafting history. During congressional consideration, critics argued that the text would recognize as citizens the children of aliens. In particular, these opponents wanted to allow the western states to “deal with [the Chinese] as in their wisdom they see fit.” Senator Edgar Cowan of Pennsylvania asked: “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean?” Cowan asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?”

Supporters of the 14th Amendment agreed with Cowan’s reading, even though it may have lost votes for their proposal. Senator John Conness of California replied to Cowan: “The provision before us … relates to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.” Conness would lose his Senate seat because of his defense of the rights of Chinese immigrants, but the amendment would go to the states for ratification on the understanding that it granted birthright citizenship to the children of aliens.

Third, Supreme Court precedent. Ever since ratification of the 14th Amendment, the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. The Supreme Court’s reading of the Constitution does not automatically bind the other branches of government or the people — that is another lesson of the Civil War. Abraham Lincoln, for example, rose to prominence by attacking Dred Scott and pledging not to enforce the opinion beyond the parties to the case. But this is one decision of the Court with which he would have agreed.

In United States v. Wong Kim Ark (1898), the Supreme Court faced the birthright-citizenship question directly. Ark involved a child born to Chinese parents in San Francisco. The child left the United States for a trip but was barred from returning to the United States under the Chinese Exclusion Act. While the parents remained Chinese citizens, the child claimed U.S. citizenship under the birthright reading of the 14th Amendment. The Supreme Court upheld the child’s citizenship by virtue of his birth in San Francisco. While Congress could block immigration entirely or control the process of naturalization, it could not alter the right of citizenship for all born within American borders.

The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” The Justices explained that the phrase “and subject to the jurisdiction thereof” only codified the existing exclusions for children of “alien enemies in hostile occupation,” “diplomatic representatives of a foreign state,” and “members of the Indian tribes.” Only these categories “had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” The Court explicitly rejected the claim made today by some that aliens, because they owed allegiance to a foreign nation, were not within “the jurisdiction” of the United States. Instead, the Court concluded that 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.”

The Supreme Court has never seen fit to question its original judgment in Wong Kim Ark. In this case, unlike others (such as Obergefell), the Supreme Court read the constitutional text, structure, and history exactly right.

Of course, the American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott. It was the Republican party that fought and won the Civil War. And it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature.

This article is cross-posted at National Review Online.

Published in Immigration, Law
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  1. Luke Thatcher
    Luke
    @Luke

    Manfred Arcane:So what does Mr. Yoo think of this quote?:

    . Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.”

    … and this one…

    “In 1866, Senator Jacob Howard clearly spelled out the intent of the 14thAmendment by stating:

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. , 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

    I confess I cannot bring myself to read Mr. Yoo’s post in detail because he obviously is not giving credit to the other side of the debate.

    Mr. Yoo,

    With all due respect: your claimed regard for the author’s intent seems to stand in contravention to the author’s stated intentions. I don’t see how you can reconcile the two.

    • #31
  2. Freesmith Member
    Freesmith
    @

    John Yoo

    Instead of spending your time arguing with the Republican base of conservative and traditional Americans – after all, we have liberals to do that – why don’t you put your abilities to work advocating a complete moratorium on all immigration and to a re-writing of our current asylee and refugee policies, which are the laughingstock of the civilized world?

    Progressives would already like to see you in a re-education camp over those alleged “torture memos,” so you’ve got nothing to lose.

    • #32
  3. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    Manfred Arcane, if you’re going to refuse to read the argument, don’t ask for more of it.

    EDIT for amusing auto spell incident.

    • #33
  4. Freesmith Member
    Freesmith
    @

    One indisputable result of John Yoo’s article in defense of a broad interpretation of birthright citizenship:

    He is now UNACCEPTABLE to millions of conservatives and traditional Americans to fill a seat on the U.S. Supreme Court.

    (He already was to millions of progressives, but for a different reason.)

    I want justices who will interpret the Constitution according to my lights. That’s the only way we are going to reverse half-a-century of progressive jurisprudence – not by simply saying “Stop!”

    • #34
  5. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    Freesmith, the conservative acceptability of a nominee has no bearing on the GOP’s actions. But Yoo will never even be put forward, not by any administration. The GOP may not care who goes up, but the progressives certainly do.

    • #35
  6. Rodin Member
    Rodin
    @Rodin

    Where to start?

    Yoo has the better of the argument on Constitutional interpretation and textual adherence. Why? You don’t go to expressions of intent when language has clear meaning as it has in the 14th amendment and other precedents.

    The main criticism of Yoo’s analysis has to do with the consequence of the interpretation in light of other actions and regulations. For example, an “anchor baby” has citizen status — why does that mean the parents are entitled to US residency? Nothing in Yoo’s analysis of the 14th Amendment mandates that a non-majoritarian citizen be entitled to parents residence in the US.

    Nor does the analysis of the 14th Amendment give access to non-citizens to welfare, tax credits, driver’s license, or health care.

    So yes, fight for immigration enforcement. Fight for assimilation over multiculturalism. Fight for English proficiency. Fight for voter ID. But don’t fight over the 14th Amendment.

    • #36
  7. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Arizona Patriot:[….]

    MA’s argument is further weakened when he claims that the Wong Kim Ark decision is inapplicable in the present circumstances, because Wong’s parents were in the US legally. But the (weak) originalist argument makes no distinction based on the legal or illegal status of the parents. If one accepts MA’s argument, the key question is whether the parents owed “partial allegiance to anyone else.” Both legal and illegal immigrants fail this test.

    From an originalist standpoint, I find the Wong Kim Ark case compelling. It was decided in 1898, about 30 years after adoption of the 14th Amendment. The Justices would have had personal memory of the adoption and its intent.

    Wouldn’t it be reasonable to interpret “under the jurisdiction of” to mean a citizen or someone legally visiting/residing?  In which case the legal/illegal is contained in the jurisdiction language, and the Wong Kim Ark case would not apply to illegal immigrants.  Mr. Yoo supports that reading when he concedes an invading soldier is not under the jurisdiction of the US.  A person who knowingly enters the US illegally is essentially invading; going where you don’t have permission to be is the definition of invading.

    • #37
  8. Rodin Member
    Rodin
    @Rodin

    To my fellow Ricochetti who are advocating fighting fire with fire, who want “our” justices to beat up on “their” justices, who want tit for tat: I understand the impulse, I understand the joy of finally, finally letting the “good guys” win. But dueling flame throwers highest rate of success is setting the whole house on fire. There are those on this thread that see this a necessary and useful outcome. I do not, simply because you do not know what will follow. Just when you think things can’t get worse…they can.

    • #38
  9. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Ball Diamond Ball:Manfred Arcane, if you’re going to refuse to read the argument, don’t ask for more of it.

    EDIT for amusing auto spell incident.

    I thought it was on purpose.

    • #39
  10. Rodin Member
    Rodin
    @Rodin

    Jojo:

    Wouldn’t it be reasonable to interpret “under the jurisdiction of” to mean a citizen or someone legally visiting/residing? In which case the legal/illegal is contained in the jurisdiction language, and the Wong Kim Ark case would not apply to illegal immigrants. Mr. Yoo supports that reading when he concedes an invading soldier is not under the jurisdiction of the US. A person who knowingly enters the US illegally is essentially invading; going where you don’t have permission to be is the definition of invading.

    Your example highlights the complexity of making the argument. An invading soldier is part of an organize and government-directed force. Still subject to the laws of war (which any country can enforce) but not to civil jurisdiction of the invaded country. While mass migration couple with multiculturalism is functionally equivalent to an invasion, without those masses being under arms and control of a government, no court is going to call it such — even conservative justices. Then you have the visa-overstays: they start legal, then become illegal. If there was an intent to become illegal you best analogy is to a foreign spy. Foreign spies are subject to jurisdiction and not granted soldier status. So no court is going to treat them as an invading soldier.

    When the argument is complex and the exceptions or distinctions numerous — you lose.

    • #40
  11. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    Invasion without belligerence is mere trespass. An errant soldier who bumbles across the border is not invading, while an attacker who bashes his way into a house to assault the occupants is a home invader.
    I realize the latter is kind of a marketing term and probably not a legal term, but the principle is appealing.

    • #41
  12. Wiley Inactive
    Wiley
    @Wiley

    I think this a case of not liking the messenger so much, one needlessly rejects the message.

    • #42
  13. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    Well, I couldn’t find this article over at NRO, but Sowell hits it out of the park!

    • #43
  14. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Ball Diamond Ball:Invasion without belligerence is mere trespass.An errant soldier who bumbles across the border is not invading, while an attacker who bashes his way into a house to assault the occupants is a home invader. I realize the latter is kind of a marketing term and probably not a legal term, but the principle is appealing.

    If someone accidentally wandered into the US and left as soon as they realized their mistake, they certainly are not an invader.  Deliberate trespass with intent to occupy…especially in large numbers to sort of inundate an area…could be considered invasion.

    • #44
  15. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Arizona Patriot: From an originalist standpoint, I find the Wong Kim Ark case compelling.  It was decided in 1898, about 30 years after adoption of the 14th Amendment.  The Justices would have had personal memory of the adoption and its intent.

    My objection to Yoo, and now You (hah, see what I just did?) is along these lines:

    “Myths can be difficult to dispose of, and birthright citizenship to aliens is no exception. Pro immigration advocates will refer to the Supreme Court ruling U.S. v. Wong Kim Ark as a desperate attempt to keep the fable alive. The problem with relying on Wong Kim Ark is that it draws zero support from the Fourteenth Amendment. In fact, the ruling had nothing to with the Fourteenth Amendment at all, but everything to do with English Common Law, something the Fourteenth’s Citizenship Clause had no connection because it was a virtue of “national law.”

    There is other significant problems with the Wong Kim Ark ruling other than having no basis in Fourteenth Amendment text, intent and history that will never hold up under review — and that is how will any court with a straight face attempt to reconcile the civil rights bill of 1870. Remember that civil rights bill declared those children born to parents subject to a foreign power cannot be declared United States citizens.”

    (continued next post…)

    • #45
  16. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    (continued from previous post…)

    You cannot simply revise he Fourteenth’s Citizenship Clause to mean yes, it really was the intent of the Congress to grant citizenship to alien children born on US soil when the same Congress enacted law afterwards that did just the reverse. Try and explain why Congress would pass a Constitutional Amendment that grants citizenship to ANYONE born in the US and then turn around and pass a law that would deny automatic citizenship to aliens? Because you cannot, only leads us back to the to the exact construction of the clause for which it was intended and written to mean.

    The Wong Kim Ark ruling is so badly flawed and irrelevant probably lead to the US Supreme Court in 1982 to say they “had never confirmed birthright citizenship for the children of illegal aliens.”

    By far the most relevant Supreme Court ruling on the subject to date, and indeed, fully supported by the Fourteenth Amendment itself came in Elk v. Wilkins 112 U.S. 94 (1884), where the court held that the phrase “subject to the jurisdiction” requires “direct and immediate allegiance” to the United States, not just physical presence.

    If pro immigration groups or individuals want to continue in believing the Fourteenth Amendment grants citizenship to anyone born in the country regardless of their allegiance, fine — but to continue to insist the Fourteenth Amendment supports their fable is both feeble and a disrespect to American history.””

    You two don’t credit counter evidence.

    • #46
  17. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Source for prior comments:

    http://www.cairco.org/book/export/html/267

    • #47
  18. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    Summarize and link, please. In the future.

    • #48
  19. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Rodin:

    Jojo:

    Wouldn’t it be reasonable to interpret “under the jurisdiction of” to mean a citizen or someone legally visiting/residing? In which case the legal/illegal is contained in the jurisdiction language, and the Wong Kim Ark case would not apply to illegal immigrants. Mr. Yoo supports that reading when he concedes an invading soldier is not under the jurisdiction of the US. A person who knowingly enters the US illegally is essentially invading; going where you don’t have permission to be is the definition of invading.

    Your example highlights the complexity of making the argument. An invading soldier is part of an organize and government-directed force. Still subject to the laws of war (which any country can enforce) but not to civil jurisdiction of the invaded country. While mass migration couple with multiculturalism is functionally equivalent to an invasion, without those masses being under arms and control of a government, no court is going to call it such — even conservative justices. Then you have the visa-overstays: they start legal, then become illegal. If there was an intent to become illegal you best analogy is to a foreign spy. Foreign spies are subject to jurisdiction and not granted soldier status. So no court is going to treat them as an invading soldier.

    When the argument is complex and the exceptions or distinctions numerous — you lose.

    Birthright citizenship for children of parents here illegally is unjust and insane. Not complex at all.

    • #49
  20. Freesmith Member
    Freesmith
    @

    Rodin:To my fellow Ricochetti who are advocating fighting fire with fire, who want “our” justices to beat up on “their” justices, who want tit for tat: I understand the impulse, I understand the joy of finally, finally letting the “good guys” win. But dueling flame throwers highest rate of success is setting the whole house on fire. There are those on this thread that see this a necessary and useful outcome. I do not, simply because you do not know what will follow. Just when you think things can’t get worse…they can.

    Unfortunately for your argument, we have 50 years of evidence of what happens if you don’t fight back, if you simply say “Stop!” and if you bring a knife to a gunfight.

    You lose.

    I refuse to listen to the advocates of impotence and defeat. I’m an American.

    Study my avatar.

    • #50
  21. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Ball Diamond Ball:Summarize and link, please. In the future.

    Sounds like work to me.  I like others to do the heavy lifting.  Also, not everyone likes to have to bounce to a link, and then search through a long treatise for choice parts.  Excerpting was invented to aid those souls (of which I am numbered).  Regards.

    PS. you can save yourself the read by just skipping my posts.  In the future.  Works for me.

    • #51
  22. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Jojo: Birthright citizenship for children of parents here illegally is unjust and insane. Not complex at all.

    Precisement!

    • #52
  23. Freesmith Member
    Freesmith
    @

    When a football team that only runs the ball is down 35 – 0 to a team that runs and passes, you do not get even by calling “Time out.”

    Nor do you get even by asking the other team to stop passing.

    You start throwing the ball…or lose.

    • #53
  24. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    This is an argument we’re going to have, and hopefully settle. If a constitutional amendment is necessary for a precise definition of “birthright citizenship” then so be it.

    Meanwhile:

    BuildTheDamnFence

    A real, double-layer everywhere it can be constructed will have many benefits:

    1. It will serve as an actual, material indication of intent to secure the border. Everything else is just word salad without it.

    2. It may not be impervious to illegal crossing, but it will make it more difficult. And when a behavior is made more difficult, it decreases.

    3. It’s a shovel-ready project. Building and maintaining it will give something to show for the billions of dollars spent, instead of being micturated away without a trace.

    4. It will shut people like me up. Tired of hearing about a fence? Then build the thing and be done with it.

    • #54
  25. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    Once Australia got serious about turning back boats, the boats stopped coming.

    • #55
  26. Freesmith Member
    Freesmith
    @

    Has anyone considered that the reason assimilation is no longer spoken about – let alone that no one in public life advances policies to further it as a goal – is because we have too many foreign-born people residing in the U.S.?

    “Today, America needs fewer immigrants.”

    • #56
  27. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Manfred Arcane: By far the most relevant Supreme Court ruling on the subject to date, …Elk v. Wilkins 112 U.S. 94 (1884), where the court held that the phrase “subject to the jurisdiction” requires “direct and immediate allegiance” to the United States, not just physical presence.

    I can’t agree with your interpretation of that case.

    First, the plaintiff was an adult Indian trying to unilaterally renounce his allegiance to his tribe, and so what the Court says about his “allegiance” cannot be so clearly taken to apply to children born here, a completely different category of person in 1868.

    Second, the Court said at 112 U.S. 102:

    Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. (emphasis added).

    This concluding two clauses put together deny citizenship to children of foreigners born over there, and to the children of ambassadors born here. Not mentioned are the children of other foreigners (not ambassadors) who are born here.

    • #57
  28. Luke Thatcher
    Luke
    @Luke

    Rodin:Where to start?

    Yoo has the better of the argument on Constitutional interpretation and textual adherence. Why? You don’t go to expressions of intent when language has clear meaning as it has in the 14th amendment and other precedents.

    This, I cannot abide. In what universe does one not go to the author for clarifications on the subjects of his own creations?

    In my profession, for example, The architect may not give clarification on the structural design of a building, even though the column is obviously meant to support the building. The electrical engineer may not give comment on the design of the plumbing system in the same project, even in areas of overlapping interest. One must, not only, seek out a person with expertise, but with knowledge of the original intentions so that those intentions are not lost from the implementations of said design.

    You see, no instruction set speaks for itself as to the intended outcome of its implementation. And the possible explanations are infinite without the outer bounds of the designers reasoning and the barriers of the common methods of the era. The Constitution is not just a written document; it’s a legal document. Plain meaning interpretations thereof are not always applicable.

    I suppose that study of the Federalist and Anti-Federalist is irrelevant to all areas of so-called plain meaning in the Constitution. Regardless of the tectonic shifts of the English language itself, much less legal maxims employed in its construction. You’re statement isn’t one born out of fidelity to the Constitution… It’s fulfilling Brutus’ side of the argument.

    Over and over, publius explains that no man could be so stupid as to misinterpret the Constitution or construe additional powers from it, that were not vested. It would seem that he didn’t see us coming. Brutus, in warning that the blockades to these kinds of mistakes should be as high as the heavens, has proven to be prescient, where he was originally castigated for being overbearingly cautious.

    • #58
  29. Instugator Thatcher
    Instugator
    @Instugator

    Manfred Arcane:So what does Mr. Yoo think of this quote?:

    . Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.”

    … and this one…

    “In 1866, Senator Jacob Howard clearly spelled out the intent of the 14thAmendment by stating:

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

    This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”I confess I cannot bring myself to read Mr. Yoo’s post in detail because he obviously is not giving credit to the other side of the debate.

    Why emphasize one part of the quote and exclude the end? Regardless – John Yoo’s citation of United States v. Wong Kim Ark (1898) trumps the legislative intent from 1866.

    The reason why the one sentence law is irrelevant is because to change the decision of SCOTUS regarding United States v. Wong Kim Ark (1898) means we have to amend the Constitution to do it.

    • #59
  30. Rodin Member
    Rodin
    @Rodin

    Manfred Arcane: Elk v. Wilkins 112 U.S. 94 (1884)

    So we have dueling precedents: Elk (1884) and United States v. Wong Kim Ark (1898)?

    Elk was denied Nebraska voting rights as a non-citizen Indian who presumably was born within the boundaries of the United States,  had unilaterally renounced his tribal citizenship, was unnaturalized, and could not/did not prove he had paid territorial taxes. The court’s analysis explained that Indians at that time were not citizens by birth unless they were subject to an 1871 law which I would describe as a “sweeper” provision for Indians whose tribes had declined to the point where they were no longer viable political units. Having determined that Elk was not subject to that law the court then looked to naturalization which they did not find because naturalization is an affirmative action of acceptance of a citizenship petition. Had Elk been paying Nebraska taxes the court would have accepted that as evidence of naturalization in that time. So no voting for Elk.

    Wong Kim Ark was seeking a right of re-entry to the US. The court upheld his claim under the 14th Amendment after determining that the “subject to the jurisdiction” language was limited to a few cases, including the one that denied Elk his voting rights. So the law of the case is not in conflict although there is “dicta” in Elk which undermines the majority’s analysis in Wong Kim Ark.

    Good luck with that.

    • #60
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