Then they should have written the amendment that way explicitly, instead of leave a vague clause that was open to variable interpretation.

quote:

Originally posted by a1abdj:

quote:

The record of the debate in 1866 is illuminating. When Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment) was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” (Emphasis added.) Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted into the armed forces of the United States, or prosecuted for treason if they take up arms against it.

quote:

Then they should have written the amendment that way explicitly, instead of leave a vague clause that was open to variable interpretation.

Like "shall not be infringed"?

I don't think there's much that can be written, regardless of how explicit the verbiage, that will not be open to interpretation or twisted to fit an agenda.

That's why we have judges.

quote:

Originally posted by Monk:
I'm fine with it. We can either hide behind the sanctity of the Constitution, or we can take steps to eliminate a huge cause of America's continual problems.

So, the Constitution is good when you agree with it - say on the 2d Amendment, and to be ignored when you don't?

What are you saying? Ignore it? Amend it?

quote:

Originally posted by Balzé Halzé:

quote:

Originally posted by berto:
Amend or get out. If you're willing to let your guy discount the Constitution by EO you run the risk of the other guy doing it to you.

He's not discounting the Constitution at all. If anything he's reaffirming it.

I'm not sure that helps all that much. It begs the question, or is circular.

It doesn't apply to foreigners or aliens. (The part about diplomats does seem clear.) But who is an alien or foreigner? Does that mean anyone whose parents aren't citizens? Is one parent good enough? what about those whose parents aren't citizens but are here legally? Does it mean no birthplace citizenship at all? This isn't really an answer.

I agree that we probably shouldn't write "subject to the jurisdiction" out of the amendment. It is a basic principal of interpretation that one should try to give meaning to all words. But what that phrase means is the question. As I noted above, jurisdiction by a court is based mostly on physical presence. You don't have to be a citizen to be subject to the jurisdiction of the courts. If you doubt me, try committing a crime as a non-citizen. You can certainly sue a non-citizen. About the only class of people who aren't generally subject to U.S. law when they are here are diplomats, who have an immunity.

But I don't know what that means in this context. I think many in this thread think they know more than they do.

Sen Grassley:

“The United States welcomes immigrants from all over the world who pursue the legal options available to them to seek permanent residence or citizenship in our country. Birthright citizenship for the children of permanent resident immigrants under the Fourteenth Amendment is settled law, as decided by the U.S. Supreme Court in United States v. Wong Kim Ark," Grassley released in a statement Tuesday afternoon. "There is a debate among legal scholars about whether that right extends to the children of illegal immigrants. I will closely review President Trump’s executive order. As a general matter, this is an issue that Congress should take the lead to carefully consider and debate.”

House Speaker Ryan:

"As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process. But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration,”

xxxxxxxxxxxxxxxxxx

sorry Ryan, it is not clear at all. So let's get it clarified.

quote:

But what that phrase means is the question.
****
But I don't know what that means in this context. I think many in this thread think they know more than they do.

Yes, well... what we know or think we know doesn't really matter. If Trump chooses to act by EO the open-border GDCs will have it in Court in a nanosecond. It will wind up before SCOTUS quick enough.

Harry Reid's proposal in 1993

Reid’s own proposal in 1993 was to try to change the meaning of the Fourteenth Amendment via an Act of Congress.

Reid’s proposal:

TITLE X—CITIZENSHIP 4 SEC. 1001. BASIS OF CITIZENSHIP CLARIFIED. In the exercise of its powers under section of the Fourteenth Article of Amendment to the Constitution of the United States, the Congress has determined and hereby declares that any person born after the date of enactment of this title to a mother who is neither a citizen of the United States nor admitted to the United States as a lawful permanent resident, and which person is a national or citizen of another country of which either of his or her natural parents is a national or citizen, or is entitled upon application to become a national or citizen of such country, shall be considered as born subject to the jurisdiction of that foreign country and not subject to the jurisdiction of the United States within the meaning of section 1 of such Article and shall therefore not be a citizen of the United States or of any State solely by reason of physical presence within the United States at the moment of birth.

https://hotair.com/archives/20...thright-citizenship/


Harry got this one right.

listen to Harry:

https://youtu.be/75a9Wa6KL7k

The drafters of the 14th amendment might not have given these questions much thought. At the time, we were letting pretty much anyone in who wanted in. For all practical purposes, there were no illegal aliens.

Re JHE888's comment above and Howard's statement:

This statement may be persuasive evidence to a review of the amendment, but the plain language of the amendment itself does not say this. One of the rules of statutory interpretation is to look at what was discussed about the language of the statute and what the final form of that language was: in short, if this issue was discussed, then the drafters had the opportunity to include that interpretative language and chose not to do so.

If Congress really intended for the Amendment to mean what Howard thought it should mean, than they had the opportunity to spell it out and they chose not to . . . now, whether that was to get votes or some other reason, that's irrelevant. What counts is the plain language of the Amendment.

It seems odd that this is a controversial subject for a group that considers itself a fan of strict constructionism.

Invading armies. Persons on the diplomatic "Blue List." Those people aren't "subject to the jurisdiction of the United States."

Pretty much every other person physically present in the U.S. is.

Do you honestly want to EVER take the position that an alien in the United States-- other than an accredited diplomat who enjoys special protection, just as our diplomats overseas do-- isn't subject to our jurisdiction and laws? How about our criminal laws?

quote:

Originally posted by jhe888:
The drafters of the 14th amendment might not have given these questions much thought. At the time, we were letting pretty much anyone in who wanted in. For all practical purposes, there were no illegal aliens.

This sounds suspiciously like, well, they didn't have automatic weapons in 1787, so the plain language of the Second Amendment doesn't apply . . .

quote:

Originally posted by jhe888:
The drafters of the 14th amendment might not have given these questions much thought. At the time, we were letting pretty much anyone in who wanted in. For all practical purposes, there were no illegal aliens.

Would most of us have been allowed in or otherwise made it if the rules of today existed back when our immigrant forefathers arrived? I have my doubts.

And make no mistake, I've zero love for the illegal trespassers and squatters of today who make no real effort to Be American. And, personally, I'd love to see an enormous moat around the CONUS with flying sharks and mile-wide mine fields all along the perimeter.

But whatever we do, let's do it right and comprehensively and consistent with the Constitution. I'd be fine if we stopped all new immigration for a while (a few+ years).

And, I'd like to see a significant curtailment of H1Bs in Corporate America.

quote:

Originally posted by jhe888:
The drafters of the 14th amendment might not have given these questions much thought. At the time, we were letting pretty much anyone in who wanted in. For all practical purposes, there were no illegal aliens.

Perhaps not illegal aliens, but they did have the concept of invading armies, who by definition are violating our sovereignty and borders when they invade. Would they have qualified as subject to?

And how precisely are illegal aliens different other than most (though not all) come in unarmed, out of uniform and not part of a military hierarchy?

Think of them as an invading barbarian horde rather than migrants and the situation is clarified somewhat.

quote:

Originally posted by Gustofer:

quote:

Originally posted by Fenris:
Thus it is ripe for Executive and or Legislative interpretation until such time as the court weighs in.

It'll take a grand total of about five minutes for a liberal judge to say, "NO!".

It'll take about one minute for a conservative judge.

Levin quoted Howard saying it was clear as day. The only people having an issue with it are those who are over-complicating it or have ulterior motives.

Can an illegal be drafted into our military?

quote:

Originally posted by jhe888:

quote:

Originally posted by Monk:
I'm fine with it. We can either hide behind the sanctity of the Constitution, or we can take steps to eliminate a huge cause of America's continual problems.

So, the Constitution is good when you agree with it - say on the 2d Amendment, and to be ignored when you don't?

What are you saying? Ignore it? Amend it?

Ignore it, amend it, just deal with it. If you're asking if I'd rather win the escalating culture war in America or preserve the integrity of this particular section of the 14th Amendment, which does nothing but aid our enemies, it's the first choice, by far.

No one, from the Founding Fathers to the folks around in 1868 when the 14th was adopted, would agree with how it's been hijacked and used against American interests. And I don't believe they'd have been none too shy or slow in addressing it, regardless of official protocol.

quote:

Originally posted by Monk:

quote:

Originally posted by jhe888:

quote:

Originally posted by Monk:
I'm fine with it. We can either hide behind the sanctity of the Constitution, or we can take steps to eliminate a huge cause of America's continual problems.

So, the Constitution is good when you agree with it - say on the 2d Amendment, and to be ignored when you don't?

What are you saying? Ignore it? Amend it?

Ignore it, amend it, just deal with it. If you're asking if I'd rather win the escalating culture war in America or preserve the integrity of this particular section of the 14th Amendment, which does nothing but aid our enemies, it's the first choice, by far.

No one, from the Founding Fathers to the folks around in 1868 when the 14th was adopted, would agree with how it's been hijacked and used against American interests. And I don't believe they'd have been none too shy or slow in addressing it, regardless of official protocol.

This is basically how I feel on the matter; slaves were brought here against their collective will and had more or less made it a home to the best of their rights and abilities would allow.

Anchor baby syndrome, however, is a completely different situation. The parents are here illegally, plain and simple. Why should their spawn have any rights to citizenship because they are born on US soil? I have ZERO problems with forcibly denying entry, and just as many problems with denying citizenship of children born here from non-citizen parents.

Citizenship shouldn’t be a birthright

By Michael Anton
July 18

Michael Anton is a lecturer and research fellow at Hillsdale College and a former national security official in the Trump administration.

Editor’s note: Michael Anton inserted the bracketed word “[or]” into a statement made by Michigan Sen. Jacob Howard during debate of the 14th Amendment on May 30, 1866, as recorded in the Congressional Globe. Anton wrote that Howard “clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’ ” Writers before Anton have made the same insertion, and Anton stands by his interpretation of Howard’s statement and maintains that the insertion of the word clarified rather than altered its meaning. You can read his full explanation in a blog post subsequently published by the Claremont Review of Books. Others believe the inserted word changes rather than clarifies the meaning of the quotation. Because the quotation can be read a different way, we should have asked Anton to publish it unaltered and then explain his interpretation rather than publishing it with the inserted word.

● ● ●

A Supreme Court confirmation fight always raises constitutional hopes and stokes constitutional fears. With one more justice, they’ll repeal Obamacare! If they get one more justice, they’ll overturn Roe v. Wade ! To arms!

These periodic, now-inevitable freakouts are a sad byproduct of our country’s drift away from political rule and over-investiture of power in the judiciary. But happily, the most urgent constitutional challenge of our time needn’t wait on a court ruling. Each political branch of government has the constitutional authority needed to fix it.

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.

That definition is the amendment’s very first sentence: “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 amendment clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart. No state has the power to deny citizenship, hence none may dispossess freed slaves.

Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.” That is true of any tourist who comes here. The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don’t.

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

Some will argue that the Supreme Court has already settled this issue, establishing birthright citizenship in United States v. Wong Kim Ark. But this is wrong. The court has ruled only that children of legal residents are citizens. That doesn’t change the status of children born to people living here illegally.

Practically, birthright citizenship is, as Erler put it, “a great magnet for illegal immigration.” This magnet attracts not just millions of the world’s poor but also increasingly affluent immigrants. “Maternity hotels” for pregnant Chinese tourists advertise openly in Southern California and elsewhere. Fly to the United States to have your baby, and its silly government will give him or her American citizenship!

It is no wonder that citizens of other countries take advantage of our foolishness. Life is still better here than almost anywhere else, including rising China and relatively prosperous Mexico. The wonder is that we Americans continue to allow our laws to be flouted and our citizenship debased.

The problem can be fixed easily. Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States, and thus not citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that’s unlikely.

It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens. Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?

Judges faithful to their oaths will have no choice but to agree with him. Birthright citizenship was a mistake whose time has gone.

https://www.washingtonpost.com...m_term=.70c914976541

Lovers of the Second Amendment should be very concerned about the precedent that would be set by this.

Is birthright citizenship being abused? Yes. Is Executive Order the appropriate way to fix it? No.