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. Freesmith Member
    Freesmith
    @

    Most of us find it ridiculous and appalling that on certain campuses Christian groups are not allowed to mandate who can be in the group, that they must be non-discriminatory even in regard to their officers.

    But some continue to assert that Americans cannot fine-tune and/or limit who can be a citizen of America, that the decision was already made and that it can only be altered by a method which with their next breath they say is impossible.

    I find those Advocates of Impotence ridiculous and appalling.

    • #61
  2. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Nick Stuart: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.

    Most of us agree.  But consider that eliminating anchor babies costs essentially nothing ‘to build’, yet has almost the same effect as building the fence.  That is why so much angst is being expended here on the topic.

    • #62
  3. ToryWarWriter Coolidge
    ToryWarWriter
    @ToryWarWriter

    I am no constitutional scholar but it seems there is room for interpretation here by actually reading the notes cited.

     

    “including all children here born of resident aliens”

     

    –What counts as a resident alien?  Someone with a green card or a random  person who crosses the border to have a baby?

     

    –Congress can certainly pass laws stating what counts as a resident alien fully within the bounds of the amemdment.

     

    “alien enemies in hostile occupation”

     

    –One assumes they meant invading armies, but one should never assume as we saw with Obamacare. What counts as alien enemies and what counts as hostile occupation?  Certainly sounds like more terms for Congress to determine in the proper application of laws and bound by the rules of the Amendment. 

    • #63
  4. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    We need to separate out several issues so as not to continue talking past each other. I offer some opinions on these separate issues

    • Anchor babies and excessive illegal immigration are a bad thing for the country for all kinds of obvious reasons.
    • There are things that can be done now (short of an amendment) to alleviate the problem, including eliminating chain migration, building the wall, and summoning the courage to deport parents of anchor babies.
    • The argument over the meaning of the 14th Amendment is a conflict of two important conservative values, namely, the need to gain control over our country, and the principle of interpreting the constitution according to its plain language. There is a genuine conflict here that parsing the cases and legislative history will not resolve. Ultimately, there may need to be an amendment. But that could take an amount of time somewhere between many years and never.
    • #64
  5. Rodin Member
    Rodin
    @Rodin

    Manfred Arcane

    Most of us agree. But consider that eliminating anchor babies costs essentially nothing ‘to build’, yet has almost the same effect as building the fence. That is why so much angst is being expended here on the topic.

    I think we can all agree that had Wong Kim Ark been decided differently things would be a lot better. The fact that the Ark decision had no meaningful impact on this country until the later 20th century reflects that many things have gone wrong unrelated to jus solis citizenship.

    But constitutional re-interpretation at this date isn’t going to cut it. You are not going to dispossess generations. So to affirmatively cutoff jus solis citizenship will take a constitutional amendment. A statute that redefines “subject to the jurisdiction” opens up two bad things: (1) a court overturning the statute as a backhanded constitutional amendment, or (2) a court agreeing to a de facto amendment by Congressional act — something that can lead to a lot more mischief in the future.

    • #65
  6. Ball Diamond Ball Member
    Ball Diamond Ball
    @BallDiamondBall

    None of this junk matters. A penalty is a tax and a state is not a state. Just find a way to make anchor babies embarrassing to John Roberts and it will be done.
    Laws are for suckers.

    • #66
  7. Instugator Thatcher
    Instugator
    @Instugator

    in Look Tin Sing (1884) had a federal court in California granting birthright citizenship to a person who was born here to parents who were subjects of China. It was not appealed to SCOTUS.

    • #67
  8. Rodin Member
    Rodin
    @Rodin

    Man With the Axe:We need to separate out several issues so as not to continue talking past each other. I offer some opinions on these separate issues

    • Anchor babies and excessive illegal immigration are a bad thing for the country for all kinds of obvious reasons.
    • There are things that can be done now (short of an amendment) to alleviate the problem, including eliminating chain migration, building the wall, and summoning the courage to deport parents of anchor babies.
    • The argument over the meaning of the 14th Amendment is a conflict of two important conservative values, namely, the need to gain control over our country, and the principle of interpreting the constitution according to its plain language. There is a genuine conflict here that parsing the cases and legislative history will not resolve. Ultimately, there may need to be an amendment. But that could take an amount of time somewhere between many years and never.

    What he said.

    • #68
  9. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Man With the Axe:

    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.

    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.

    I don’t get it, your very first sentence in the last paragraph says that Indian babies do not qualify for citizenship, to h_ck with the rest of the paragraph.  Why isn’t that enough to make the case against anchor babies?

    • #69
  10. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    Manfred Arcane: Most of us agree. But consider that eliminating anchor babies costs essentially nothing ‘to build’, yet has almost the same effect as building the fence. That is why so much angst is being expended here on the topic.

    No argument here. Let’s get started with both.

    • #70
  11. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Rodin: The argument over the meaning of the 14th Amendment is a conflict of two important conservative values, namely, the need to gain control over our country, and the principle of interpreting the constitution according to its plain language. There is a genuine conflict here that parsing the cases and legislative history will not resolve. Ultimately, there may need to be an amendment. But that could take an amount of time somewhere between many years and never.

    Only, if you go to the trouble of seeking out arguments on the web against the legality of anchor babies, you will discover that “principle of interpreting the constitution according to its plain language” does not favor the advocates of AB, or at least this is very much in doubt.  Previously, for example, I quoted latter-day Senators as explicitly denying the favorable interpretation of the text of the Amendment.  There are plenty of counterarguments against Yoo’s interpretation.  The criticism I lay on him is that he does not take a fair-and-balanced approach to the issue, does not acknowledge, let alone credit the opposing arguments.  He is biased, IMO.  So there is much less value to his post accordingly.

    • #71
  12. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Manfred Arcane:

    Man With the Axe:

    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 [X] 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).

    I don’t get it, your very first sentence in the last paragraph says that Indian babies do not qualify for citizenship, to h_ck with the rest of the paragraph. Why isn’t that enough to make the case against anchor babies?

    If the paragraph had ended where I put the big X then you would be correct without question. The rest of the paragraph shows that the non-Indian groups who are also not subject to the jurisdiction of the United States are very specifically defined.

    • #72
  13. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Manfred Arcane: There are plenty of counterarguments against Yoo’s interpretation.  The criticism I lay on him is that he does not take a fair-and-balanced approach to the issue, does not acknowledge, let alone credit the opposing arguments.  He is biased, IMO.  So there is much less value to his post accordingly.

    Professor Yoo may be wrong, but for practical purposes what actually matters is what 5 out of 9 think, regardless of all the rest of the ink spilled on the subject. I’d put my money on the 5 agreeing with Prof. Yoo.

    • #73
  14. Bob W Member
    Bob W
    @WBob

    Yoo isn’t just saying that the 14th allows anchor babies, he’s saying that it would be wrong to change it not to allow anchor babies. In his last paragraph, he equates such a change to siding with the Southern Democrat side in the Civil War. This is utterly astonishing and disingenuous. He sounds like every other leftist out there trying to make this a racial issue. Or does he really believe that there is no way to word an amendment ending anchor baby status that would not also eliminate the concept of birthright citizenship in every other appropriate circumstance?

    An appropriately worded amendment that would precisely identify anchor baby status and eliminate it should be put forward and every candidate should be asked whether they support it. If it were precise and clear, there could be no rational reason for opposing it. Anyone who did would be clearly showing where their true loyalties lie.

    • #74
  15. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Man With the Axe: …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…

    Just shows the subtlety of the subject.  We interpret the foregoing language differently.  You interpret this phrasing as ‘likening’ the predicate and subject as being ‘similar in disqualifying nature’, I as being ‘similar in degree of eligibility’.

    • #75
  16. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    “…foreigners will generally be apt to bring with them attachments to the persons they have left behind; to the country of their nativity, and to its particular customs and manners. They will also entertain opinions on government congenial with those under which they have lived; or, if they should be led hither from a preference to ours, how extremely unlikely is it that they will bring with them that temperate love of liberty, so essential to real republicanism? …foreigners…tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. …

    The United States have already felt the evils of incorporating a large number of foreigners into their national mass; by promoting in different classes different predilections in favor of particular foreign nations…

    the last census that we have increased about one third in ten years…  Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; and to admit … feeling a real interest in our affairs. A residence of not less than five years ought to be required.

    To admit foreigners indiscriminately to the rights of citizens, the moment they put foot in our country, as recommended in the message, would be nothing less than to admit the Grecian horse into the citadel of our liberty and sovereignty.” — Alexander Hamilton, author of over half of The Federalist Papers, January 7, 1802

    https://www.thefederalistpapers.org/current-events/alexander-hamilton-and-immigration

    • #76
  17. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Ball Diamond Ball: That’s Libertarianism.

    In fairness, and for the sake of accuracy, libertarians are mixed on the subject (Rosen considers himself libertarian). As usual.

    • #77
  18. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    The Cloaked Gaijin:“…foreigners will generally be apt to bring with them attachments to the persons they have left behind; to the country of their nativity, and to its particular customs and manners. They will also entertain opinions on government congenial with those under which they have lived; or, if they should be led hither from a preference to ours, how extremely unlikely is it that they will bring with them that temperate love of liberty, so essential to real republicanism? …foreigners…tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. …

    The United States have already felt the evils of incorporating a large number of foreigners into their national mass; by promoting in different classes different predilections in favor of particular foreign nations…

    the last census that we have increased about one third in ten years… Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; and to admit … feeling a real interest in our affairs. A residence of not less than five years ought to be required.

    To admit foreigners indiscriminately to the rights of citizens, the moment they put foot in our country, as recommended in the message, would be nothing less than to admit the Grecian horse into the citadel of our liberty and sovereignty.” – Alexander Hamilton, author of over half of The Federalist Papers, January 7, 1802

    Oh this is most excellent.  Thanks.

    • #78
  19. Petty Boozswha Inactive
    Petty Boozswha
    @PettyBoozswha

    I agree effective action short of challenging the Constitutionality of birthright citizenship would solve 98% of our problems and make further action moot, but let me climb into the arena and raise my light sabre against the Jedi Yoo with the following:

    Your argument conflates opposition to racial animus being a just reason to deny birthright citizenship with all other rationales, but that is not what the authors of the 14th amendment intended. Here is Senator Cowan, the author of the Amendment:

    “…Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to a society than I look upon Gypsies…”

    Gypsies in that era did not just denote Roma, but was a generic term to any group that flaunted social norms and state authority. The Mormons were considered a cult in the 1830’s akin to Gypsies and were denied state citizenship in Missouri and Illinois, The purpose of the 14th Amendment was to reverse the pernicious aspects of Dred Scott and make what had previously been Union state citizenship universal, for blacks and, by extension, all suspect racial classifications. It did not imply those with limited allegiance to the US were free and clear. Here is Senator Trumbull:

    see below continued…

    • #79
  20. Rodin Member
    Rodin
    @Rodin

    Bob Wainright, I did not read Yoo as promoting continuation of jus solis citizenship so much as worrying about the political perception associated with an effort to amend the 14th amendment. He sees two problems: (1) using judicial activism to re-interpret the 14th amendment as problematic precedence, and (2) giving political foes some credibility in claiming to minorities that “whites” are seeking “repeal” of the 14th amendment.

    MA and The Cloaked Gaijin, all good reasons not to grant “touch” naturalization, AKA amnesty et al. But not an argument against jus solis citizenship.

    • #80
  21. Petty Boozswha Inactive
    Petty Boozswha
    @PettyBoozswha

    continued from above…

    Trumbull, during the debate, said, “What do we [the committee reporting the clause] mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”

    I believe under common law an infant owes allegiance to the sovereign of it’s parent, that was the outcome in the Elian Gonzalez situation… the debate over the amendment also turned on the phrase “complete allegiance” versus, I assume, limited or dual allegiance, just as there have been disputes about lawful combatants vs. unlawful combatants…

    Complete allegiance does not mean actively spurning the legally established methods of entering the US by tourist visa [and abiding by it’s terms] or following the established immigration procedure, that can be construed as a hostile act for the reconquista of Aztlan or the illicit participation in it’s economy against the wishes of the sovereign power. At best those acts connote limited allegiance. The Mexican government took a Texas death penalty case to the US Supreme Court a few years back. An illegal alien/Mexican national had been tried for gang rape and murder of a 14 year old girl [who gagged to death on her panties stuffed in her mouth] without benefit of consultation with the Mexican consulate in Houston before trial. Mexico asserted that since the alien still owed allegiance to Mexico that should have been required so Mexico could have paid for his legal counsel. I agree with Mexico’s interpretation.

    • #81
  22. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    So conservative means agrees with John Yoo now?

    Interesting.

    Going to be a pretty small club here pretty soon……

    • #82
  23. Rodin Member
    Rodin
    @Rodin

    This conversation highlights the difference between solving a problem and settling a bet: A bet is a “yes” or “no” proposition without regard to the merits of the answer. Solving a problem sometimes requires sacrificing the “rightness” of a position to the practical needs for better outcomes in the future.

    So Yoo may or may not be on the winning side of the bet. But is his counsel that the solution to the immigration problem needs to be focused away from re-intepreting or amending the 14th amendment correct?

    • #83
  24. Arizona Patriot Member
    Arizona Patriot
    @ArizonaPatriot

    Here’s a question to JY:

    Are you willing to condemn Brown vs. Board of Education in the same way that you condemn a hypothetical birthright citizen decision limited to children of citizens (or children of citizens and permanent resident legal aliens)?

    Virtually the same SCOTUS that decided Wong Kim Ark in 1898 also decided Plessy v. Ferguson in 1896 (only 1 justice was replaced in the interim).  If anything, the originalist argument that the “separate but equal” rule of Plessy was the intent of the drafters of the 14th Amendment was stronger than the originalist argument of Wong Kim Ark — as I recall, the same Congress that passed the 14th Amendment also passed Jim Crow laws providing for legally compelled race discrimination in the District of Columbia.

    • #84
  25. Manfred Arcane Inactive
    Manfred Arcane
    @ManfredArcane

    Rodin: …

    But constitutional re-interpretation at this date isn’t going to cut it. You are not going to dispossess generations. So to affirmatively cutoff jus solis citizenship will take a constitutional amendment. A statute that redefines “subject to the jurisdiction” opens up two bad things: (1) a court overturning the statute as a backhanded constitutional amendment, or (2) a court agreeing to a de facto amendment by Congressional act — something that can lead to a lot more mischief in the future….

    Well, I dunno.  Not a legal expert.  Seems to me that there are different shades than those on your palette.  Clarifying what the actual language means doesn’t rise to the level of making another (de facto) amendment, but just dispelling confusion about an existing one.

    If Republicans could get a bill through Congress eliminating jus solis citizenship unconstrained, as a Republican President I would enforce that language irregardless what the Supremes ruled on the matter.  And I wouldn’t lose a nanosecond of sleep over the conflict between the Judicial and Executive powers.  But those benefiting from prior laxity in interpreting the law would be grandfathered in as citizens.

    The law is just totally insane.  Someone from Timbuktu writing a letter to the US Consulate stating in clear language their strong desire to enjoy the blessing of liberty as a citizen of the US has far more claim on our sympathy than an anchor baby.  So, now the whole world has entre to US citizenship?  Just crazy.

    • #85
  26. Arizona Patriot Member
    Arizona Patriot
    @ArizonaPatriot

    Manfred Arcane:You two don’t credit counter evidence.

    MA:  I’m happy to consider contrary evidence.  I’d like to hear more about the Civil Right Act of 1866 in particular, as I agree that the laws passed by the same Congress that enacted the 14th Amendment would be relevant to, though not necessarily dispositive of, the original intent.

    I followed the link that you gave, and while I don’t have time to analyze the whole thing (a series of articles on the issue), my general impression is of people playing “fast and loose” with the text.

    Let’s go back to the 14th Amendment text itself.  It says:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    I trust we can agree that this text plainly means that any person “born . . . in the United States” is a citizen, unless he is not “subject to the jurisdiction thereof.”  So the general rule is birthright citizenship, unless one is within the exception.

    So what does the exception mean?  JY cites substantial evidence that this exception meant the children of diplomatic personnel, foreign troops on US soil, and Indians.

    The contrary argument is that “subject to the jurisdiction thereof” means, essentially, “whose parent is a citizen.”

    [Cont’d]

    • #86
  27. Mike LaRoche Inactive
    Mike LaRoche
    @MikeLaRoche

    “If the law supposes that,” said Mr. Bumble…“the law is a ass – a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience – by experience.”

    — Charles Dickens, Oliver Twist

    • #87
  28. Rodin Member
    Rodin
    @Rodin

    Manfred Arcane:

    The law is just totally insane. Someone from Timbuktu writing a letter to the US Consulate stating in clear language their strong desire to enjoy the blessing of liberty as a citizen of the US has far more claim on our sympathy than an anchor baby. So, now the whole world has entre to US citizenship? Just crazy.

    Very true. And there are any number of native-born Progressives I would love to “deport.” But as I stated in post #36 the real battle should be over those things that we have added to jus solis that has generated the term “anchor baby.”

    • #88
  29. Arizona Patriot Member
    Arizona Patriot
    @ArizonaPatriot

    [Cont’d]

    But “subject to the jurisdiction thereof” is a strange way to say “whose parent is a citizen.”  If the drafters meant the latter, why not just say so?  And remember, it was definitely the purpose of the 14th Amendment to make the former slaves, and their children, citizens of the US.  An interpretation that would exclude this result is plainly wrong.

    Also, some of the sources you quote say silly things like:

    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.”

    Well, I have the text of Wong Kim Ark open in another window, and it includes a substantial discussion of both the 14th Amendment and the Civil Rights Act of 1866.

    [Cont’d]

    • #89
  30. Lensman Inactive
    Lensman
    @Lensman

    Trump may not be a conservative, but Andrew McCarthy and the editors at National Review are conservatives and they have argued persuasively that the 14th Amendment does not mandate citizenship for children born in the U.S. to aliens who are not legally present in the U.S.

    Andrew McCarthy has posted numerous times at the Corner on this question, but I need cite one post which in turn links to a discussion at NRO of a 2010 law review article by Prof. Lino Graglia of the University of Texas Law school entitled  “Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy” and a link to that article.

    Professor Yoo’s argument does not prove enough. He conflates the children of lawful residents in the U.S. with children of illegal aliens. The former are arguably within the ambit of the 14th Amendment (mostly because of the 1898 Supreme Court case of U.S. v. Wong Kim Ark.) The latter are clearly citizens of another country who by design or accident are with a pregnant mother when she gives birth. The former are only citizens because five justices in 1898 ignored the American Revolution’s termination of the English concept of perpetual allegiance owed by a subject to his king (the Ark case).

    Until Professor Yoo can directly address the reasoned arguments by Professor Graglia, Andrew McCarthy, Rich Lowry, Mark Levin, Ann Coulter and many others (most of whom also have law degrees), his op-ed piece is only unpersuasive pontificating.

    In my opinion, the Ark case was clearly erroneous because it failed to distinguish between citizens and subjects. It it were to be overruled, that new precedent could be given only prospective (not retroactive) effect for prudential reasons.

    Anyone who argues for birthright citizenship for aliens by invoking  the Founding Fathers is on thin ice, as demonstrated by the excellent quotation of Alexander Hamilton earlier in these comments. Imagine what Madison or Hamilton would say about the concept of “dual citizenship”! That idea is so foreign to our constitutional principles that they would probably conclude that you had lost your mind.

    • #90
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