Patterico's Pontifications

8/19/2015

Trump: Right on Birthright Citizenship (But Still a Narcissistic Fool)

Filed under: General — Patterico @ 9:07 pm



I’ll say this for Donald Trump: he has ignited a debate on birthright citizenship (anchor babies) and . . . he turns out to be right.

The 14th Amendment to the U.S. Constitution states, in relevant part:

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.

That’s my bold type.

Mark Levin quotes the author of this citizenship provision, Sen. Jacob Howard, as saying this:

Every person born within the limits of the United States, and subject to their jurisdiction, [meaning the states – 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 issue in the jurisprudence and legislation of this country.

Now: a quick side note. Those who have carefully followed my posts on legal interpretation know that the stated opinion of the author of legislation or a Constitutional provision is not the final word. We do not appeal to the subjective intent of the person who wrote the words. That way lies incoherence and the latest ObamaCare decision.

But an opinion like this is not to be utterly discounted, either . . . because it is a clue as to the proper interpretation of language, according to the original understanding of the public at the time of ratification.

And that original understanding of the 14th Amendment’s phrase “subject to the jurisdiction of the U.S.” clearly meant people who owed political allegiance to this country.

I am unaware of anyone disputing Sen. Howard’s characterization, and no reason to believe that what he says is wrong. If you want more meat on the bones, this excellent piece by Ann Coulter provides it.

There is some ignorant commentary out there saying that denying birthright citizenship to anchor babies of illegals would “repeal the 14th Amendment” or require a Constitutional amendment or a Supreme Court decision. But the Supreme Court has never held to the contrary. Peruse the links above and you’ll see that the Court has, at most, come up with unpersuasive dicta.

Which is not to say they wouldn’t rule that way, if presented the question today. As I said on Twitter tonight:

But they haven’t yet. A stopped clock and a narcisstic buffoon are right on occasion. Score one for Sir Poofylocks.

UPDATE: DRJ offers this link to the (long-standing) work of University of Texas at Austin Law Professor Lino Graglia on this issue.

116 Responses to “Trump: Right on Birthright Citizenship (But Still a Narcissistic Fool)”

  1. Our own Prof Graglia has been writing about this since 1997, including this 2009 paper. It’s not as entertaining as Coulter but it’s still good.

    DRJ (1dff03)

  2. UPDATE: DRJ offers this link to the (long-standing) work of University of Texas at Austin Law Professor Lino Graglia on this issue.

    Patterico (3cc0c1)

  3. Actually there were a few contemporaries of Senator Howard, but they were ruling by spite.
    It was the Andrew Johnson administration, the President fresh off having his veto overruled twice and a constitutional amendment cementing the case for all time, pull an Obama/Andrew Jackson and defied Congress to enforce their own law. Then seeing an opportunity, interpreted the 14th amendment in such a way that Chinese could take the place of the negro, as forced labor. In this Johnson was joined by both the Democrat and Republican Senators from California.

    papertiger (c2d6da)

  4. As a former Criminal Investigator with the INS, the clear understanding of the Immigration Service in the 1970’s and 1980’s was that the children of diplomats with A visas were not US citizens by birth because they were not subject to the jurisdiction of the United States. The parent diplomats and their children enjoyed diplomatic immunity, were not subject to US jurisdiction and the US born children did not become US citizens by birth.

    All illegal aliens are subject to the jurisdiction of the US while they are present in the US. The US government can send them to jail, they can be sued, etc. Only diplomats with A visas can simply say “no, I won’t stay in jail, expel me from the US – that’s the worst you can do.”

    tkay (47f26a)

  5. The idiocy of the Trump Era continues. Lord, please make it stop…

    Reversing the tradition of birthright citizenship will require a constitutional amendment. Any attempt to change this current law of the land by statute will be temporary at best, and by definition reversible by a future [Democrat] legislature.

    This “anchor baby” stuff was not anticipated when the 14th was ratified in 1868, when immigration was “relatively free and open.”

    I certainly don’t dispute Patrick on the theoretical level

    Those who have carefully followed my posts on legal interpretation know that the stated opinion of the author of legislation or a Constitutional provision is not the final word. We do not appeal to the subjective intent of the person who wrote the words. That way lies incoherence and the latest ObamaCare decision.

    But an opinion like this is not to be utterly discounted, either . . . because it is a clue as to the proper interpretation of language, according to the original understanding of the public at the time of ratification.

    but nor should we expect even Justice Scalia to overturn a century-old principle [jus solis, “right of the soil”] which is not an unreasonable reading of the 14th Amendment

    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.

    Absent a constitutional amendment, birthright citizenship is a moot discussion. What we can change by statute is at least a temporary reversal of the policy of entitling the illegal immigrant parents of “anchor babies” to their “anchor.” But this will not be easy, either.

    Tom Van Dyke (b78be6)

  6. tkay,

    The interpretation you outline is the modern liberal approach that “within the jurisdiction” means “within the geographic boundary” and/or “subject to American laws,” but that’s not what the Founders or the authors of the Civil Rights Act of 1866 understood that phrase to mean. They understood it to mean that the parents of American-born babies owed their allegiance to the United States, not another foreign power. By definition, illegal immigrants owe allegiance to their home countries — whether or not they feel that allegiance.

    DRJ (1dff03)

  7. As Prof Graglia explains, the Fourteenth Amendment’s “subject to the jurisdiction” relates back to “within the jurisdiction” set forth in the Civil Rights Act of 1866. They mean and should be interpreted the same.

    DRJ (1dff03)

  8. Professor Patterico will testify that mucking with Gibson Dunn & Crutcher is a heavy mothermucker indeed.

    Defining “American”
    Birthright Citizenship and the Original
    Understanding of the 14th Amendment

    http://www.gibsondunn.com/publications/Documents/Ho-DefiningAmerican.pdf

    Tom Van Dyke (b78be6)

  9. Correction: “within the jurisdiction” should be “subject to a foreign power.”

    DRJ (1dff03)

  10. Patterico,

    The “subject to the jurisdiction thereof” phrase was put in there to avoid conferring citizenship to members of Indian tribes that did not acknowledge US sovereignty, or were separate “nations” by threaty while residing within lands claimed by the United States.

    That is all it means.

    Unless you wish to say that illegal aliens are not subject to the laws of the Untied States, which is probably not what you mean.

    The rest of this crap is just the same “well, SOMEBODY in Congress said something that sounds like the result I want” that you have, correctly, lambasted over and over on your blog.

    Kevin M (25bbee)

  11. 5. This “anchor baby” stuff was not anticipated when the 14th was ratified in 1868, when immigration was “relatively free and open.”

    We are not talking about immigration. We are talking about citizenship. And if this “anchor baby” stuff was not anticipated that’s because they didn’t have the term. And they didn’t have the term because people simply didn’t automatically become citizens based on the accident of the location of their birth. As was made very clear in floor debates, being born within the territory of the United States did not confer automatic citizenship rights on “aliens’ and “foreigners.” For the same reason native Americans were not automatically US citizens.

    but nor should we expect even Justice Scalia to overturn a century-old principle [jus solis, “right of the soil”] which is not an unreasonable reading of the 14th Amendment

    Tom Van Dyke (b78be6) — 8/19/2015 @ 11:08 pm

    I normally agree with Scalia but in this case his reading is unreasonable, and it’s also not accurate historically.

    http://www.nebraskastudies.org/0700/frameset_reset.html?http://www.nebraskastudies.org/0700/stories/0701_0146.html

    1924 Indian Citizenship Act

    90 years ago Congress still had to pass laws to grant citizenship to groups of people despite the fact they might be born within the territory of the United States. Why? Because they were not “subject to the jurisdiction of the United States.” That is, their loyalty was to another sovereign, in this case their tribe. For aliens and foreigners their loyalty was to foreign power. And we are not talking about just diplomats.

    Birthright citizenship was not jus solis in 1924. There are people yet alive when it was not jus solis. Citizenship was only granted by the consent of the American people, through its Congressional representatives.

    When all of sudden did it change? When did the American people become powerless to be able to say who should and who should not be an American citizen, but any foreign national sneaking across our border had that power?

    Is there a bright and shining line when we can say that at this point in history Americans were stripped of their control over who could become a citizen and transferred that control to foreign nationals? Because if there is such a bright, shining line it’s something less than 90 years.

    And when did we all catch historical amnesia and we all started imagining this is some ancient right?

    Steve57 (5a07a9)

  12. See for example here

    Howard’s argument, when read more fully, is not as ambiguous as Trump’s people proclaim.

    The Civil Rights Act of 1866 had previously asserted that “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The immediate impetus for the Fourteenth Amendment was to constitutionalize and validate the Civil Rights Act because some had questioned whether the Thirteenth Amendment was a sufficient basis for its constitutionality. A constitutional amendment would also have the advantage of preventing a later unfriendly Congress from repealing it.

    One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase “Indians not taxed.” Senator Jacob Howard of Ohio, the author of the Citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

    By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the United States. And “jurisdiction” did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “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.”

    It talks about “aliens” only in terms of ambassadors and others, here for reasons other than immigration. It could possibly be stretched to include children born to tourists (something rare to non-existent in 1868), but to stretch it to include persons who are indisputably here as immigrants who would gladly consent to American government, given the chance, is unreasonable.

    It is unlikely to be a convincing argument to undo a century of settled law.

    Kevin M (25bbee)

  13. Kevin said:

    The “subject to the jurisdiction thereof” phrase was put in there to avoid conferring citizenship to members of Indian tribes that did not acknowledge US sovereignty, or were separate “nations” by threaty while residing within lands claimed by the United States.

    That is all it means.

    No, that is not all it means. Indian tribes (except the Seminoles) did by treaty acknowledge US sovereignty. And we acknowledged theirs.

    They did not have birthright citizenship because the law presumed that their primary allegiance was to their sovereign.

    Is Mexico or China less of a sovereign?

    Steve57 (5a07a9)

  14. Or, again, are you asserting that illegal immigrants are not subject to the jurisdiction and laws of the United States? Or, are you asserting they do not wish to be (with some quibbles about one of them*)?

    * Anyone who ever smoked pot has no claim to moral superiority here, and certainly anyone who smoked pot when it was still a felony.

    Kevin M (25bbee)

  15. Steve,

    In 1868? I think not.

    Kevin M (25bbee)

  16. 12. … It could possibly be stretched to include children born to tourists (something rare to non-existent in 1868), but to stretch it to include persons who are indisputably here as immigrants who would gladly consent to American government, given the chance, is unreasonable.

    It is unlikely to be a convincing argument to undo a century of settled law.

    Kevin M (25bbee) — 8/20/2015 @ 12:54 am

    Where do you get this amazing insight that everyone who sneaks across the border or overstays their Visa is here for the purpose of immigration and would gladly consent to American government, given the chance?

    If Muhammad Atta had a love child with a female Mexican drug cartel member (not out of the question given the close ties between Middle Eastern terror groups and Mexican drug cartels) while here in the US, that’s who you are talking about?

    Steve57 (5a07a9)

  17. I think the 14th Amendment was an effort to establish the Civil Rights Act of 1866 so it could not be repealed, so they need to be read together. That’s why “subject to the jurisdiction” in the 14th Amendment should be interpreted as “subject to a foreign power” as set forth in the Civil Rights Act of 1866.

    As Kevin M states, “Indians not taxed” — that is, Indians living in tribes — were excluded because they were subject to a foreign power. However, I don’t think the language of the Act only excludes or applies to Indians. Any child born in the US who is “subject to a foreign power” would be excluded, which is why diplomats’ children born in the US were and continue to be excluded from birthright citizenship.

    DRJ (1dff03)

  18. THere were lots of unreconciled Indian tribes in 1868, and even the ones that had treaties as “nations” were not really considered independent nations, but just something on the side, extra-Constitutional, different from states. None of those treaties lasted very long, and you will note that Indians now vote. Just ask Senator Coleman Franken.

    Kevin M (25bbee)

  19. Coleman Franken

    Kevin M (25bbee)

  20. 14. Or, again, are you asserting that illegal immigrants are not subject to the jurisdiction and laws of the United States?

    Kevin M (25bbee) — 8/20/2015 @ 1:00 am

    Being subject to the laws of the United States has nothing to do with it.

    Jurisdiction is a question of allegiance.

    4. As a former Criminal Investigator with the INS, the clear understanding of the Immigration Service in the 1970’s and 1980’s was that the children of diplomats with A visas were not US citizens by birth because they were not subject to the jurisdiction of the United States. The parent diplomats and their children enjoyed diplomatic immunity, were not subject to US jurisdiction and the US born children did not become US citizens by birth.

    Only diplomats with A visas can simply say “no, I won’t stay in jail, expel me from the US – that’s the worst you can do.”
    tkay (47f26a) — 8/19/2015 @ 11:04 pm

    Diplomats are subject to our laws. If they refuse to obey them we can kick them out.

    This is why most diplomats obey the laws of the countries where they are assigned.

    But here we apply the correct understanding the understanding they had at the time that applied to all “aliens” and “foreigners.” They were subject to the jurisdiction of another sovereign.

    And please tell me when this law was settled?

    The question of children born to aliens illegally in this country has never been put before the Supremes?

    Steve57 (5a07a9)

  21. 18. …you will note that Indians now vote. Just ask Senator Coleman Franken.

    Kevin M (25bbee) — 8/20/2015 @ 1:09 am

    Yes Kevin, I noticed.

    That’s why I mentioned the Indian Citizenship Act of 1924.

    Steve57 (5a07a9)

  22. Where do you get this amazing insight that everyone who sneaks across the border or overstays their Visa is here for the purpose of immigration and would gladly consent to American government, given the chance?

    Go back and read what I wrote. I separated “tourists” from people clearly intending to immigrate.

    Overstaying a visa for a month is one thing. Overstaying it for 23 years is another. Somewhere there is a dividing line, sure, but you’re the one saying it’s all the same, not me.

    Kevin M (25bbee)

  23. That’s why I mentioned the Indian Citizenship Act of 1924.

    Which has as much to do with the meaning of the 14th Amendment as Obamacare.

    Kevin M (25bbee)

  24. Why assume anyone here illegally is willing to renounce their allegiance to their home country? That seems like a dangerous assumption to make, and not supported by the facts in many cases. Take the babies born in the border counties of Texas whose mothers cross the border to have them, free of charge, in American hospitals and then take them home to Mexico.

    DRJ (1dff03)

  25. But you miss my point:

    Your case is not convincing. It is a stretch on top of a stretch, ginned up to convince people that the Supreme Court will undo a century of precedent.

    They won’t, and what dope are you smoking if you think they might?

    Kevin M (25bbee)

  26. Kevin, cite the century old precedent that has nothing to do with legal immigrants, please?

    I’m not even talking about legal immigrants. They are here by our consent, as expressed in our laws.

    And I believe that was settled in the 1890s.

    Steve57 (5a07a9)

  27. DRJ,

    Why assume anyone here LEGALLY is willing to renounce their allegiance? Why are their children automatically citizens? Do they have to surrender their former passport and notify their previous homeland of their choice before their children are citizens? If so, there are an AWFUL lot of people who think they are citizens who are not.

    Kevin M (25bbee)

  28. Kevin, please cite cases.

    I inclined to think that when you resort to stretches upon stretches that you can’t.

    It’s sort of like a lawyer pounding the table when neither the law or facts are on his side.

    Steve57 (5a07a9)

  29. Texas is litigating a related issue in cases where mothers don’t have valid identification.

    DRJ (1dff03)

  30. Steve,

    If it is settled, then why have the children of illegals been treated as though it was settled differently all this time? Is “Ooops!” really your answer?

    Kevin M (25bbee)

  31. 27. Why assume anyone here LEGALLY is willing to renounce their allegiance? Why are their children automatically citizens? Do they have to surrender their former passport and notify their previous homeland of their choice before their children are citizens? If so, there are an AWFUL lot of people who think they are citizens who are not.

    Kevin M (25bbee) — 8/20/2015 @ 1:22 am

    Excellent point. After incidents involving such fine upstanding Americans as Muhammad Youssef Abdulazeez perhaps we should have a look at that.

    Next.

    Steve57 (5a07a9)

  32. The question of people here legally is harder than people here illegally, which is what I’ve been discussing. But many legal residents are not permanent residents. Student visas allow people to be here legally but that doesn’t mean they intend to stay or that they renounce their loyalty to their home nations.

    DRJ (1dff03)

  33. Anyway, it is late and bed beckons.

    Kevin M (25bbee)

  34. Kevin @30, no. I’m asking you to cite the settled case law that requires us give the children of illegal immigrants born in the US citizenship.

    This government does a lot of things without legal authority.

    Along with Indians voting these days, I’ve noticed that, too.

    Or is your final answer, “If our government is doing it, it must be legal?”

    Steve57 (5a07a9)

  35. Someone can be in the US legally without being a citizen. Many are citizens of their home countries with no intention of changing citizenship. They come here for jobs or education or to visit, but not to become citizens or to pledge allegiance to America.

    DRJ (1dff03)

  36. Like Ted Cruz, born in Canada.

    He had no intention of ever pledging allegiance to Canada.

    But our silly system, completely out of line with the entire civilized world but for Canada, means that people who are raised abroad with no memory nor allegiance to this country and are in fact hostile to the US can travel here freely. To do us harm.

    Because their parents had them while students in the US.

    Steve57 (5a07a9)

  37. DRJ,

    And that is an interesting point, considering that travel was so onerous in 1868 that few, if any, casually arrived at our shores, and those that did were seldom turned back (the Chinese exclusion was later).

    It may well be you could make a case that children born to people casually here, with no intention of making a home here, are not US persons. I can see a law to that effect passing muster.

    The issue of children born to persons here illegally, going forward, would depend on the degree to which they have settled here. Presumably if deported quickly the assertion would be unprovable, and this may be a sufficient barrier to the anchor baby problem.

    OTOH, if some time has passed and continuous residency has been established, calling them children of “tourists” would be harder. By the time they start school I would think the opportunity would be lost forever.

    Kevin M (25bbee)

  38. Kevin M 27,

    As you know, most countries assume children of foreign nationals do not become citizens. The US (and Canada?) are different, probably because we wanted to encourage immigration and/or because it was easier than trying to figure out the parents’ status. But now America has millions of anchor children, with 400,000 more each year — 1 out of every 10 births.

    It’s time to revisit this issue, even if it has been settled law. So was traditional marriage but that didn’t stop the Court from changing “settled” law.

    DRJ (1dff03)

  39. But that is not what Trump is talking about. He is suggesting that families who have been here for decades, illegally, can be deported en mass, with all claims to citizenship by children born here, now perhaps adults, washed away by this new interpretation.

    That I think is absurd.

    The Federal government has let a Gordian Knot develop and fester for 30 years. It will take some time undoing it, and a lot of the illegals will be allowed to stay. I would suggest a Constitutional Amendment that says “No person, having entered the United States in disregard of its laws, may become a citizen.”

    And then, going forward, significant disincentives, and prompt expulsion. for illegals is necessary.

    Kevin M (25bbee)

  40. I should clarify that while this issue has been treated in society as settled, it hasn’t been settled in the courts. It could be addressed by Congress or the courts. Maybe that Texas case will even end up addressing the issue.

    DRJ (1dff03)

  41. I don’t know what Trump means. I agree children who have birth certificates can’t have them taken away, but I’m not sure Trump is saying that. It sounded like he’s saying deport illegals and stop birthright citizenship for future anchor babies.

    DRJ (1dff03)

  42. DRJ,

    The 14th Amendment is as it is due to the history of slavery and the (as it turns out correct) belief that the southern states would make freed slaves non-citizens if at all possible. And of course Dredd Scott.

    Kevin M (25bbee)

  43. I would also point out that every single Mexican national crossing into the US in 1868 and settling down would have been accepted as a legal resident, if such a term had come to mind back then.

    Kevin M (25bbee)

  44. If we’re going to contrast 1868 with today, I don’t think they had birth tourism where women plan travel to the US to have a child. But we do now, and not just from Mexico.

    DRJ (1dff03)

  45. 43. I would also point out that every single Mexican national crossing into the US in 1868 and settling down would have been accepted as a legal resident, if such a term had come to mind back then.

    Kevin M (25bbee) — 8/20/2015 @ 1:51 am

    Yes it would. Then crossing the border and into the United States would not have been an illegal act. It is now. From US v. Wong Kim Ark (1898), which settled citizenship matters for children born to legal residents.

    http://caselaw.findlaw.com/us-supreme-court/169/649.html

    …The chief justice first laid down the general principle: ‘The jurisdiction of the nation within its own territory is [169 U.S. 649, 684] necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.’ 7 Cranch, 136.

    He then stated, and supported by argument and illustration, the propositions that ‘this full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power,‘ has ‘given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation,’ the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because ‘a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation'; ‘a second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers'; ‘a third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions'; and, in conclusion, that ‘a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise that while necessarily within it, and demeaning herself in a friendly [169 U.S. 649, 685] manner, she should be exempt from the jurisdiction of the country.’ 7 Cranch, 137-139, 147…

    An illegal alien is a a foreign national who has entered the US without the consent of the nation. To say that foreign national can then confer citizenship on her child by acting against the express consent of the nation is a “a diminution of [our] sovereignty to the extent of the restriction” (i.e. on their very presence) and “conferring” part of our sovereignty on an “extraterritorial power.” That would be, any foreign national who decides to enter this country illegally.

    Now, how is this sane?

    And given this is the century old precedent, Kevin, you keep referring to, how is this legal?

    Birthright citizenship gives to illegal aliens the power to do what Wong Kim Ark says is not in the power of any truly sovereign nation to let the do.

    If illegal aliens can confer upon themselves citizenship against the consent of the nation and against our laws, then we are no longer a sovereign nation.

    According to Wong Kim Ark, the United States is “susceptible of no limitation not imposed by itself.”

    According to you and those who argue the other way, we are.

    And that isn’t at all what the SCOTUS said in Wong Kim Ark.

    Steve57 (5a07a9)

  46. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty

    This restriction deriving its validity from an external source would be the foreign national illegally crossing our borders and having a child.

    Which diminishes our sovereignty.

    Again I ask you, Kevin, is there some other precedent you are referring to when, as I asked Tom Van Dyke @11:

    Is there a bright and shining line when we can say that at this point in history Americans were stripped of their control over who could become a citizen and transferred that control to foreign nationals? Because if there is such a bright, shining line it’s something less than 90 years.

    Steve57 (5a07a9)

  47. Sleep eludes.

    DRJ, I think I said that a couple of times.

    The bold type, however, that our host uses, seems to separate “foreigners, aliens” from “who belong to the families of ambassadors or foreign ministers accredited to the government of the United States”, when the only likely reading of that (what does “who” refer to?) would have those two connected as one clause.

    You might insert, without losing meaning, “families of tourists, ambassadors or foreign ministers…”, but only in the narrow sens of those who are temporarily here with a clear intention to leave at some identifiable point.

    Birthright tourism is a reasonable thing to stop, and should not impact the 14h Amendment. But stretching the definition of “tourist” to mean “someone who overstays a tourist visa for 23 years” is a little hard to swallow. They are [other-than-legal] immigrants, but still immigrants and while you may decide to deport them, their children have birthright citizenship and have since, at some point, they stopped being tourists.

    The real fear I have is that, whatever the outcome of the current batch of illegals, there will be no reform of either the policing of immigration, or of the incredibly STUPID legal immigration system where we try to keep workers out and only let in dependents of green-card holders, often needing welfare.

    Kevin M (25bbee)

  48. There is a bright and shining line in 1868. I don’t get your 90 year thing? Is this about the 1924 law? Do you think that law, if passed today would be ruled Constitutional? Bet you houses not. If gays cannot be stopped from marrying, both an Asian Exclusion and a grandfather -limitation on nationalities would be unacceptable.

    If you are looking for a bright-line case, try Brown vs Board of Education for the watershed change.

    Kevin M (25bbee)

  49. Good night Kevin. Another key part of Wong Kim Ark as you go to sleep.

    …VI. Whatever considerations, in the absence of a controlling provision of the constitution, might influence the legislative or the executive branch of the government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the fourteenth amendment, which declares and ordains that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’

    Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins (1886) 118 U.S. 356 , 6 Sup. Ct. 1064; Lau Ow Bew v. U. S. (1892) 144 U.S. 47, 61 , 62 S., 12 Sup. Ct. 517; Fong Yue Ting v. U. S. (1893) 149 U.S. 698, 724 , 13 S. Sup. Ct. 1016; Lem Moon Sing v. U. S. (1895) 158 U.S. 538, 547 , 15 S. Sup. Ct. 967; Wong Wing v. U. S. (1896) 163 U.S. 228, 238 , 16 S. Sup. Ct. 977…

    Illegal aliens; are they “permitted to reside here?”

    Steve57 (5a07a9)

  50. And you know what else? The Sixteenth Amendment was never ratified and the income tax has always been illegal.

    nk (dbc370)

  51. 48. There is a bright and shining line in 1868.

    Kevin M (25bbee) — 8/20/2015 @ 2:55 am

    Is that your final answer? That Americans surrendered their sovereignty concerning conferring citizenship to foreign nationals in 1868?

    Because that would have come as news to the Supreme Court that decided Wong Kim Ark in 1898. They said the exact opposite.

    Steve57 (5a07a9)

  52. mexicans hate donald trump cause he makes them obey

    with his mind

    happyfeet (5546fb)

  53. BTW, Steve, arguing laws that touch on the 14th Amendment based on the Plessey Court’s understanding isn’t going very far.

    I point to the dissent, which clearly relies upon the 14th Amendment:

    “The proposition is that a child born in this country of parents who were not citizens of the United States, and under the laws of their own country and of the United States could not become such,-as was the fact from the beginning of the government in respect of the class of aliens to which the parents in this instance belonged,-is, from the moment of his birth, a citizen of the United States, by virtue of the first clause of the fourteenth amendment, any act of congress to the contrary notwithstanding.”

    Note that Justice Harlan signed this dissent, and also was the sole dissenter in Plessey for reasons that reverberate here. So these two justices, at least, thought that bright line you seek had already beeen laid down.

    Kevin M (25bbee)

  54. If you read the dissent, you will see that the argument made in Won Kim Ark rests on a number of since abandoned themes, but most notably that the 14th Amendment was a dead letter (it having been killed in a line of cases that go, roughly, Slaughterhouse, Cruikshank, Plessey).

    The rumors of its death were premature.

    Kevin M (25bbee)

  55. Wong Kim Ark’s parents entered the US legally per our treaty with China and were permitted to reside here. Hence Wong Kim Ark gained citizenship at his birth.

    …The fourteenth amendment was not designed to accord citizenship to persons so situated, and to cut off the legislative power from dealing with the subject.

    The right of a nation to expel or deport foreigners who have not been naturalized or taken any steps towards becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the county. 149 U.S. 707 , 13 Sup. Ct. 1016…

    They did not by any stretch of the imagination say that a child born to parents who were prohibited, and the nation attempts to prevent, entering the US fall into the same category.

    Indeed, the entire reasoning of Wong Kim Ark says they do not acquire citizenship.

    This has nothing to do with racial discrimination; indeed the entire decision eschews the very idea that citizenship can ever be based upon race. The fact they decided in favor Wong Kim Ark screams that fact.

    So, Kevin, if you think that I or the court were talking about Chinese Exclusion Laws, which per the court could NOT apply to Mr. Ark, or that Brown v. Board of Education is in any way relevant to to restrictions on a nation’s sovereignty that come from anywhere but the sole legitimate source, the consent of the governed, you are indeed overtired and should go to sleep.

    Steve57 (5a07a9)

  56. Illegal aliens; are they “permitted to reside here?”

    Most of them have been allowed, for a very long time. Currently? You betcha.

    Kevin M (25bbee)

  57. Kevin, go to sleep. You’re not thinking clearly.

    The idea of national sovereignty and the sole legitimate source of national authority being the consent of the governed is a dead letter?

    That’s the bright and shining line I’m looking for.

    When you wake up, do tell when that happened.

    Steve57 (5a07a9)

  58. See if you can come up with a year, a statute, or a Supreme Court case establishing precedent.

    Steve57 (5a07a9)

  59. Nearly everything that John Marshall Harlan the elder wrote about the 14th Amendment in dissent has been rehabilitated.

    Kevin M (25bbee)

  60. 12. …It is unlikely to be a convincing argument to undo a century of settled law.

    Kevin M (25bbee) — 8/20/2015 @ 12:54 am

    Kevin, the “century of settled law” you are talking about is the decision affirming the lower court decision that Wong Kim Ark was indeed a natural born citizen.

    Now you’re hanging your hat on the dissent?

    You are not making sense.

    If the dissent is now what is authoritative, then we don’t have a century of settled law.

    Which is it? Do we have a century of settled law or not?

    Steve57 (5a07a9)

  61. 56. Illegal aliens; are they “permitted to reside here?”

    Most of them have been allowed, for a very long time. Currently? You betcha.

    Kevin M (25bbee) — 8/20/2015 @ 3:11 am

    I’m looking for citations.

    When did Congress pass a law permitting illegal aliens to legally reside in the US?

    And why didn’t anybody tell DHS/ICE/The Border Patrol?

    Steve57 (5a07a9)

  62. Steve,

    It seems it is late for both of us. I seem to have misread the dissent to Wong Kim Ark, mistaking it’s restating of the majority’s conclusion for their opinion.

    What the court said, basically is that any child born on US territory and required to follow US law, is ipso facto, a US citizen, and that the status of the parents is immaterial, so long as that status does not exempt the child from US law.

    See Wikipedia:

    United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a United States Supreme Court case in which the Court ruled that practically everyone born in the United States is a U.S. citizen. This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.

    Wong Kim Ark, who was born in San Francisco to Chinese parents around 1871, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government’s refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed essentially everyone born in the U.S.—even the U.S.-born children of foreigners—and could not be limited in its effect by an act of Congress.

    The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is subject to the jurisdiction thereof acquires automatic citizenship. The Supreme Court’s majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to almost all children born on American soil (a concept known as jus soli). The court’s dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority’s view, would have excluded “the children of foreigners, happening to be born to them while passing through the country”. In the words of a 2007 legal analysis of events following the Wong Kim Ark decision, “The parameters of the jus soli principle, as stated by the court in Wong Kim Ark, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts.”

    However, the decision does not directly reach the illegality question, as there was no such thing as an illegal immigrant when Mr Wong was born.

    Kevin M (25bbee)

  63. OF course, Steve, you misread it, too.

    Kevin M (25bbee)

  64. I don’t see how this helps your case in any way. AT BEST, it is a push for you. It is the last case on this subject and it plainly says that the birthright citizenship is plenty broad, and probably includes tourists.

    Kevin M (25bbee)

  65. The best interpretation of Constitutional provisions is how they’ve been put into practice. This Turner Diaries view of the Fourteenth Amendment has not been put into practice in over a century. It went into a coma in the Wong Kim Ark case and the plug was pulled by the Magnusson Act. It’s not going to be resurrected except with a séance. On the other hand, if there is enough popular hysteria for the government to exploit, the Constitution becomes a form of words and “the rule of law” is the punchline to a joke. So keep up the good fight.

    nk (dbc370)

  66. BTW, I read that Ted Cruz had renounced his Canadian citizenship but did Queen Elizabeth (she is the Queen of Canada) also declare that she no longer considers him her subject? Cuba has let him go under its Constitution.

    nk (dbc370)

  67. No, it’s not an irrelevancy. That was the government’s position in Wong Kim Ark. That his parents and he were the subjects of the Emperor of China.

    nk (dbc370)

  68. Making fun of Trump’s hair and calling him a “fool” which he manifestly isn’t, are not the best arguments that can be made against supporting him for president.

    Mark Johnson (05b23f)

  69. Trump’s hair is not a hot button issue it’s just tacky

    happyfeet (a037ad)

  70. I’m out of order, Steve and Kevin are out of order, this court’s out of order. It’s way too early to be arguing about the case of Som Yung Guy!

    Colonel Haiku (9e91a2)

  71. Senator Jacob Howard, in 1866:

    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

    Foreigners, aliens, and people who belong to the families of ambassadors or foreign ministers accredited to the government of the United States are not three different kinds of people, but Foreigners and aliens (Sen. Jacob Howard used two words where one would have done – maybe he was a lawyer) modifies the phrase:

    “who belong to the families of ambassadors or foreign ministers accredited to the government of the United States”

    Noticew the word AND is not in that sentence.

    And if you want to say the comma is the same as the word “and” and he was just speaking extemporaneously, he also said:

    every other class of persons

    Nor could the amendment have settled the question and removed all doubt as to what persons are or are not citizens of the United States, had there been any more exceptions other members ofm the families of ambassadors accredited to the United States. In that case, there would be all kinds of need for further clarification.

    I suspect that the whole quotation anyway is ripped out of context which would make it clear that the only category of person wjho were born in the United States not included in the definition of ciizen is people who belong to the families of ambassadors or foreign ministers accredited to the government of the United States who, at the same time, are foreigners or aliens.

    This is the kind of species of legal reasoning that argues that the income tax is unconstitutional.

    There is no reason anyone should be surprised at the idea that children if illegal immigrants born here become citizens – at the time there was no such thing as an illegal immigrant, meaning a person whose continued presence on the United States was illegal.

    At the time, Congress was not even considered to have the power to regulate immigration, but only naturalization, and indirectly through regulating foreogn commerce.

    Congress did not get any power to restrict immigration until the 1875 Supreme Court decision

    Henderson v. Mayor of City of New York 92 U.S. 259 (1875)

    [The most important U.S. constitutional decision that nobody ever heard of]

    ….which took the power away from the states. (basically on pragmatic grounds)

    If this pressed too far, perhaps the Supreme Court, in a decision written by Justice Clarence Thomas in the year 2023 (Roberts and Alito dissenting) will overrule it, and restore the power to the states.

    Sammy Finkelman (0f2215)

  72. I come at this from a little different angle than I’ve seen in our host’s post or the comments here.

    A lot of things we think of as “settled legal principles” and “bedrock American law” simply aren’t. They’re deliberately left open to adjustment within the Constitution. The relevant part of the Constitution — Article III on the Judicial Branch of our federal government — sets out a few relatively bright lines, but deliberately leaves many of the most important ones to Congress.

    For example, despite all the backlash he incurred when he proposed his Court-packing plan to get his New Deal legislation past it, FDR was absolutely correct that the Executive and Congress, acting together through mere legislation — a simple amendment to Title 28 of the U.S. Code’s Judiciary Act — could change the number of seats on the U.S. Supreme Court.

    If the Congress and Executive so chose, for example, they could likewise simply abolish outright the federal courts of appeals — which didn’t exist in their present form until very late in the 19th Century, but which now carry almost the entire load of appellate review in the federal court system.

    You think you have a constitutional right to an appeal to the U.S. Supreme Court? You don’t. In fact, you don’t even have a statutory right to compel the Supreme Court to review the lower courts’ findings and conclusions and resulting judgment in your case except in a very few specific types of litigation (e.g., from decisions of special three-judge courts convened under the Voting Rights Act of 1965) which have been specified by statute, as part of Article III, Section 2’s specification that the Supreme Court’s appellate jurisdiction is subject to “such exceptions, and under such regulations as the Congress shall make.”

    So even as originally drafted, the Constitution envisions — indeed requires — a continuing readjustment of the jurisdiction of the federal courts via future legislation. And certainly by the time the Fourteenth Amendment was written, our leaders had learned that it’s extremely useful and important to parallel that structure from Article III. (Remember, the Fourteenth Amendment’s passage was when the words “Dred Scott decision” were still vivid in the minds of everyone who’d just been through the Civil War precipitated, in part, by it.) So the Fourteenth Amendment includes, in section 5, this key text, which we’ve seen repeated in many constitutional amendments proposed and/or ratified since:

    The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    We can argue — and legal scholars already have — whether previous decisions of the SCOTUS do or don’t recognize, either via direct holdings or dicta, the rights of “anchor babies” to claim American citizenship. Of course, SCOTUS precedents can be, and occasionally are, overruled by later precedents from that same Court.

    But wherever one comes out on that argument regarding the current state of the law, there can be no doubt whatsoever that Congress has a role, created by the Fourteenth Amendment, in its future interpretation and enforcement. And just as in the early 20th Century the Congress passed legislation clarifying and defining the parameters of citizenship for American Indians, it likewise could, I believe, pass legislation now, early in the 21st Century, clarifying and defining the parameters of citizenship for children whose parents are non-citizens who are illegally within the geographical boundaries of the U.S. when their children are born.

    I don’t think it would take either a Constitutional amendment or a SCOTUS decision overruling prior precedent to change our current national practices of recognizing “anchor baby” citizenship. But I do think it could and should be done by Act of Congress, either signed by the President or passed into law over his veto by the required margins of both chambers. And I think that’s the appropriate way to make the change — not by executive order, nor by proposing a constitutional amendment — because it would cloak the change in appropriate political legitimacy. I think that such a statutory change would indeed be accepted and recognized and enforced by the SCOTUS as presently constituted.

    But it wouldn’t be if the Dems hold the White House and get to replace any of Roberts, Scalia, Kennedy, Thomas, or Alito with another liberal judicial activist bent on advancing the Left’s “social justice agenda” at all costs and regardless of the Constitution. That’s one reason, then, why I’ll continue to ridicule Donald Trump and attempt to educate those who are tempted to support him: If you want this fixed, then the GOP needs to take the White House, and hold both chambers of Congress, during this election cycle. And Donald Trump is Hillary!’s best hope, and she’s the Dems’ best hope, for keeping the White House in Democratic hands.

    Beldar (fa637a)

  73. Patterico on Donald Trump | A stopped clock and a narcisstic buffoon are right on occasion. Score one for Sir Poofylocks.

    From the Atlantic – ‘Idiot,’ ‘Yahoo,’ ‘Original Gorilla': How Lincoln Was Dissed in His Day
    The difficulty of recognizing excellence in its own time (http://preview.tinyurl.com/patterico01)

    …George Templeton Strong, a prominent New York lawyer and diarist, wrote that Lincoln was “a barbarian, Scythian, yahoo, or gorilla.” Henry Ward Beecher, the Connecticut-born preacher and abolitionist, often ridiculed Lincoln in his newspaper, The Independent (New York), rebuking him for his lack of refinement and calling him “an unshapely man.” Other Northern newspapers openly called for his assassination long before John Wilkes Booth pulled the trigger. He was called a coward, “an idiot,” and “the original gorilla” by none other than the commanding general of his armies, George McClellan.

    Patterico is too close to Hollywood & casting directors & theatrical agents, or too refined & snobbish. There is no conservative Henry Fonda or Raymond Massey to choose from.

    Ron Courson (aefdfe)

  74. And that original understanding of the 14th Amendment’s phrase “subject to the jurisdiction of the U.S.” clearly meant people who owed political allegiance to this country.

    You got a crystal ball that can look into people’s minds and find out who they have allegiance to?

    libarbarian (f47d10)

  75. Trump did come off as quite a fool awhile back when he hyped the media that he had some important inside information — presumably a major scoop — on Obama’s citizenship. On the day of the supposed big announcement, Trump had nothing to reveal. Splat!

    Mark (65a3a7)

  76. 16. Steve57 (5a07a9) — 8/20/2015 @ 1:04 am

    Where do you get this amazing insight that everyone who sneaks across the border or overstays their Visa is here for the purpose of immigration and would gladly consent to American government, given the chance?

    They don’t have to consent. Jurisdiction is asserted.

    Sammy Finkelman (0f2215)

  77. So lemme see, The Donald is a narcissist and a fool with poofy hair but he’s worth 11 billion dollars. And scribe/writer/critic has a cool haircut, and cool clothes and eats cool food and is worth ????. I think I see the problem here. All right thinking people think Donald doesn’t deserve all that money (and I do).

    f1guyus (9cbd15)

  78. 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.

    – Sen. Jacob Howard

    Selective emphasis of Sen. Howard’s remarks seems to lend itself to different interpretations of his thinking – seemingly, “every other class of persons” beyond “the families of ambassadors or foreign ministers” would include non-ambassadorial and non-ministerial Mexican immigrants. Wouldn’t a textualist admit that “every other class of persons” is a pretty broad phrase?

    Also, what is the legal standard for measuring this “allegiance” that people have been discussing? Serious question – I didn’t know that there was a legal test for “allegiance,” and the idea of tying citizenship to a test of “allegiance” seems dangerous.

    Finally, I agree wholeheartedly with nk at #67.

    Leviticus (f9a067)

  79. A quick illustration: I don’t feel that I owe political allegiance to anyone or anything, including this country, but I’m pretty sure that I’m subject to this country’s jurisdiction (you know – as a practical matter).

    Leviticus (f9a067)

  80. shirley, you can’t be serious,

    narciso (ee1f88)

  81. f1guyus: Please provide support — other than Trump’s own evaluations — for your claim that he’s “worth 11 billion dollars.” Every business and financial publication that’s independently evaluated his net worth puts it at half that or less. And of course, that ignores his record of spectacular business failure — four waves of bankruptcies, each involving many different corporate entities under his name and control, the first of which nearly put him into personal bankruptcy, and each of which was paid for, to the cumulative tune of billions of real dollars (not imaginary ones) lost by trade creditors, utilities, employees, investors, and other Americans.

    Those who think Trump has been a success in business are in a large, sad club: People who’ve been conned by Donald Trump.

    Beldar (fa637a)

  82. There was no distinction between tourists (or visitors) and immigrants in 1868. I don’t think that happened until after World War I.

    In 1868 what became known as the Burlingame Treaty—actually articles added to the Treaty of Tientsin (1858) was negitiated with China.

    It contained the following clause:

    The United States and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance and also the mutual advantage of free migration and emigration … for the purposes of curiosity, of trade, or as permanent residents … but nothing contained herein shall be held to confer naturalization upon the citizens of the United States in China, nor upon the subjects of China in the United States.

    Anson Burlingame was the U.S. minister to China from 1861 to 1867, at which point he resigned and went to work for China attempting to negotiate treaties with foreign powers that would remove China’s unequal status. He succeeded only with the United States and failed with Britain, France, Germany and Russia. Burlingame had formerly been a free-soiler and antislavery orator and Congressman from Massachusetts.

    According to this:

    http://immigrants.harpweek.com/ChineseAmericans/2KeyIssues/BurlingameTreaty1868.htm

    ….The free immigration clause was put in to counter the Chinese government’s prohibition of its subjects emigrating.

    It also says:

    “Another clause stipulated that “Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation.”

    It recognized retsrctions might be put (by states!) but said Chinese aliens had to be treated the same as the best of the other non-citizens.

    Sammy Finkelman (0f2215)

  83. I don’t think allegiance is a reasonable standard. Impossible to quantify. But subject to the jurisdiction of quite clearly leaves the subject parties outside of birthright citizenship

    JD (34f761)

  84. “But subject to the jurisdiction of quite clearly leaves the subject parties outside of birthright citizenship.”

    – JD

    How so? I ask seriously, recognizing that I’m out of my depth in these discussions. But it seems that immigrants, legal or illegal, are clearly “subject to the jurisdiction” of the United States when present in its territory.

    Leviticus (f9a067)

  85. Leviticus: What or who defines the United States’ territory? It’s not in the Constitution. I submit to you that it’s the other law of the United States, as passed by Congress (either with the POTUS’ concurrence or over his veto).

    What defines the jurisdiction that the United States has over people in that territory? I submit to you that it’s the other law of the United States, as passed by Congress (either with the POTUS’ concurrence or over his veto).

    Beldar (fa637a)

  86. It would seem that the only people not “subject to the jurisdiction” of the United States while present in its territory are the ambassadorial/ministerial types here for the express purpose of representing another sovereign, which is why they get special treatment and are singled out in Sen. Howard’s remarks.

    Leviticus (f9a067)

  87. I don’t disagree with either submission, Beldar, or with your points at #63. But it seems unlikely (to me) that Congress would pass (or the President sign) legislation designed to A) limit or narrow definitions of US territory, or B) limit US jurisdiction over people in that territory. If so, then we’re left with maximally broad definitions of US territory and jurisdiction and are faced with the same issues we’re discussing now.

    Leviticus (f9a067)

  88. *you points at #73

    Leviticus (f9a067)

  89. If the argument against birthright citizenship is correct, than I am a subject of Vladimir Putin.

    Because my parents were born before my grandparents became US citizens, so by jus sanguinis they were born citizens of Russia. Which makes me a citizen of Russia as well, since my parents never applied for US citizenship because they thought they already were US citizens. Even though no one in my family has stepped on Russian territory since about 1925.

    I am an illegal alien!

    That is if you follow the logic of anti birthright citizenship. Or as logicians say, reductio ad absurdum.

    But in truth, the Founders would have, if asked, opined for birthright citizenship, since that was the accepted common law position in 1776, and common law continued to be the law in the US except when specifically changed or rejected.

    kishnevi (80558c)

  90. Ted needs to publish his plan, Like the one Trump did, he needs to be getting the publicity, the scrutiny and reset the dialogue – the problem isn’t the 14th amendment or the immigrants its the job market, the excessive taxation and the entitlements.

    This ropeadope strategy isn’t going to work, Cruz has no Wade McClusky lurking out there, Ted has stiff competition from Perry who reportedly is doing the Santorum, campaigning door to door church to church in Iowa, Fiorina seems to be fading but Carson is difficult to attack, and is a super nice guy so Ted has to not assume that people will automatically gravitate to him as people drop out. Kasich is also a contender and Bush is a tougher candidate than people are giving him credit for

    He needs to be setting the agenda

    EPWJ (ac6e0d)

  91. Neither the treason clause in Article III nor the rebellion and insurrection clauses in the Fourteenth Amendment mention owing allegiance. I am of the view that simply under the protection of, and subject to, the nation’s laws is the standard.

    nk (dbc370)

  92. History might be helpful. Both Beldar’s and Leviticus’s home states were carved out of Mexico; Beldar’s as a republic and Leviticus’s as a U.S. territory. Were their former Mexican citizens now strangers in a strange land or was it taken for granted that they now “owed allegiance” to their new countries?

    nk (dbc370)

  93. Regardless of allegiance, I’m pretty sure they quickly became “subject to [US] jurisdiction.” Which is your point, I think, and mine.

    Leviticus (f9a067)

  94. Patterico is too close to Hollywood & casting directors & theatrical agents, or too refined & snobbish. There is no conservative Henry Fonda or Raymond Massey to choose from.

    Ron Courson (aefdfe) — 8/20/2015 @ 7:28 am

    Oh, brrrrother.

    You may wanna actually do some maddog research on someone before you start throwing specious insults based on nothing but geography.

    L.N. Smithee (e750c1)

  95. Leviticus, you’re under the impression that the word “jurisdiction” as used in the Fourteenth Amendment has a single, clear, unalterable, and singularly expansive, definition. I’m not under that impression, and don’t think it’s correct.

    Beldar (fa637a)

  96. Don’t be confused by the subject to the jurisdiction smokescreen. Everyone (with a few exceptions – diplomats with immunity) are subject to the laws and jurisdiction of the US while here regardless if they are US citizens or not, illegal aliens included. It’s called territorial jurisdiction – on US territory equals subject to US jurisdiction under the law.

    But, that’s obvious, we know all about it because we see it every day on TV. It doesn’t matter if a criminal is an American citizen or not, the law applies equally to non-citizen residents, illegals, tourists, foreign exchange students, and everyone else (except Barack Obama, Bill and Hillary Clinton, Eric Holder, Lois Lerner, Huma Abadn, Cheryl Mills, Jake Sullivan, et al).

    However, there’s another kind of jurisdiction, the kind mentioned in the 14th Amendment – complete political jurisdiction – which requires allegiance to the USA. Which means not subject to the jurisdiction of, or owing allegiance to, a foreign power.

    Simply being born in the US to illegal alien parents makes one subject to our laws, but it does not confer US citizenship. Trump is right, Patterico is right, and so are all the others who stand up for American sovereignty.

    No one would allow illegal alien squatters who invaded their backyard and gave birth while there to claim the child is a member of your family by right of birth. It’s absurd.

    As John Eastman, former Dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.

    ropelight (6dce3e)

  97. In particular, I think it’s demonstrably possible to be someone who’s not subject to the jurisdiction of the United States, in the sense used and meant in the Fourteenth Amendment, but who’s nevertheless subject to arrest and deportation: Viz, diplomats who commit crimes while on American soil. The fact that they can lawfully be cuffed, put behind bars temporarily, and then transported elsewhere doesn’t somehow make them into citizens.

    Beldar (fa637a)

  98. “However, there’s another kind of jurisdiction, the kind mentioned in the 14th Amendment – complete political jurisdiction – which requires allegiance to the USA. Which means not subject to the jurisdiction of, or owing allegiance to, a foreign power.”

    – ropelight

    Again: where do you get this “complete political jurisdiction” idea, and if you’re right, what is the test for the “allegiance” upon which this train of thought seems to hinge?

    Leviticus (f9a067)

  99. Or where does John Eastman get it? The implication from Sen. Howard’s text seems to be that birthright citizenship applies to “every class of persons” besides those in ambassadorial/ministerial positions.

    Leviticus (f9a067)

  100. Leviticus, let me give you another specific example, a very fundamental and basic one taught in the first week of every law school course covering federal courts and the federal jurisdiction system:

    When analyzing every single case filed in federal court, the very first thing a federal judge is supposed to do — whether the litigants have raised this question or not — is figure out whether the judge has “subject-matter jurisdiction.” That’s because Article III, and further refined by the Judiciary Act, restricts and defines the kinds of issues that the federal court system has any power to hear.

    But that’s entirely distinct from the similar-sounding question of “personal jurisdiction.” That’s about whether this particular federal judge has the judicial power, consistent with the Due Process Clause of the Fifth Amendment, to exercise his power over the particular litigants who’re before him (one of whom may be insisting that he lives somewhere else, in another state or country).

    To render a meaningful, enforceable, and constitutionally valid legal judgment, the federal judge needs both subject-matter jurisdiction over the controversy and personal jurisdiction over the litigants. Both use the word “jurisdiction,” but they’re conceptually different. Both have different statutory and constitutional underpinnings. Merely filing the wrong pleading at the wrong time that doesn’t include the required objection can waive personal jurisdiction, and parties can and do deliberately consent to personal jurisdiction that they could successfully fight, for example. But no agreement of the parties, no procedural steps or missteps, not even the fact that the case has been going on for two decades and has been up and down the trial and appellate court system can prevent a case from being dismissed — thrown out — for want of subject-matter jurisdiction.

    Like pretty much everyone else who insists that this is a “closed question” with “clear answers” and a hundred years of supporting precedent, you’re overgeneralizing when you’re trying to apply this word “jurisdiction.” I’m not playing Humpty Dumpty with you here, but you’re making assumptions that “jurisdiction” means the same thing in every context. It just doesn’t.

    Beldar (fa637a)

  101. The specific exemptions — diplomatic personnel, passengers on foreign-flagged vessels, invading armies, and Indians not taxed — delineate the differences in the meaning of jurisdiction.

    nk (dbc370)

  102. 79. A quick illustration: I don’t feel that I owe political allegiance to anyone or anything, including this country, but I’m pretty sure that I’m subject to this country’s jurisdiction (you know – as a practical matter).

    Leviticus (f9a067) — 8/20/2015 @ 7:49 am

    97. Again: where do you get this “complete political jurisdiction” idea, and if you’re right, what is the test for the “allegiance” upon which this train of thought seems to hinge?

    Leviticus (f9a067) — 8/20/2015 @ 10:10 am

    They get the idea of “complete political jurisdiction” from human nature, as reflected in your earlier comment. This was an innovation from the founding. In England one was a subject to the king whether one wanted to be or not. Simply being born on the king’s territory made you eternally bound to the king. You could never renounce your subjecthood.

    The idea of citizenship was different. No one could be compelled to be a citizen of a nation against their will. This was one reason why Indians did not have birthright citizenship. If they desired citizenship they could demonstrate that fact by making overt efforts to be naturalized, and they could be offered citizenship by special treaty, but otherwise it was presumed their primary loyalty would be to their tribe.

    Again, an Indian could demonstrate otherwise, but without attempting to demonstrate otherwise, the presumption remained.

    By the same token, the idea of citizenship as opposed to subjecthood meant that no one could force you to remain a citizen against your will. If you did not feel you owed political allegiance to the nation you had a freedom no subject to a king ever had. You could renounce your citizenship.

    The idea of consent figures greatly in the Wong Kim Ark, decision, which is why I highlighted those portions of the majority decision upthread.

    That national sovereignty was absolute, and no limitation of sovereignty was legitimate unless such a limitation was by the consent of the nation. If a limitation on sovereignty was imposed by a foreign power, that meant the nation was not sovereign.

    Wong Kim Ark’s parents were permitted by law to reside in the US.

    Illegal aliens are not permitted by law to reside in the US.

    This must make a difference, or else we are now living in an era when foreign powers, that is any individual foreign national can impose citizenship on her children against the consent of the nation. Which would be a limitation imposed by a extraterritorial power, and an illegitimate limitation of sovereignty.

    I’m still waiting for someone to cite caselaw or a statute that marks the bright and shining line when Americans lost control over this portion of their sovereignty.

    Steve57 (5a07a9)

  103. But I am not insisting that the state of the law is immutable; just that it will take a political earthquake to crack the stone it’s engraved on. 😉

    nk (dbc370)

  104. “Like pretty much everyone else who insists that this is a “closed question” with “clear answers” and a hundred years of supporting precedent, you’re overgeneralizing when you’re trying to apply this word “jurisdiction.” I’m not playing Humpty Dumpty with you here, but you’re making assumptions that “jurisdiction” means the same thing in every context. It just doesn’t.”

    – Beldar

    I am not assuming this is a closed question with clear answers, and I’m not trying to overgeneralize the word “jurisdiction,” or making assumptions that it means the same thing in every context. I’m well aware of the difference between subject matter jurisdiction and personal jurisdiction.

    What I have asked for (repeatedly, at this point) is some origin-story for the notion of “complete political jurisdiction” and it’s reliance on an amorphous (and to my knowledge, legally unarticulated) notion of “allegiance.” You are far better versed in law (and most things) than I am: do you know of some legal, Constitutional relevance of a notion of “allegiance” to a definition of “complete political jurisdiction”? A textually grounded one?

    nk is pointing to textual exemptions indicating nuances in concepts of “jurisdiction,” but the specificity of those exemptions (coupled with the standard canons of construction) doesn’t seem to make the point that people like Trump want them to make.

    Leviticus (f9a067)

  105. When you are reading a text, and you interpret a line in the text that is completely at odds with the rest of the text, then something is wrong with your interpretation.

    The preamble to the Constitution sets out its purpose. The mission statement, as it were.

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    Birthright citizenship is simply at odds with the concept of national sovereignty, the consent of the people, and the purpose of the Constitution.

    We the People of the United States have no vote in who We the People of the United States are. Who has the deciding vote on who We the People of the United States are? According to those who say the Constitution mandates birthright citizenship, it is the people of the rest of the world who have the deciding vote.

    Birthright citizenship is simply the abolition of sovereignty, and citizenship itself.

    And that is completely at odds with the entire rest of the Constitution. It is the ultimate absurdity.

    I believe even the Supreme Court that decided the Wong Kim Ark case would be shocked that people are using their decision to justify this degradation of citizenship.

    …Nobody can deny that the question of citizenship in a nation is of the most vital importance. It is a precious heritage, as well as an inestimable acquisition; and I cannot think that any safeguard surrounding it was intended to be thrown down by the amendment…

    Actually, yes, somebody can deny that the question of citizenship in a nation is of the most vital importance. If an illegal act can confer citizenship on an individual then citizenship is a matter of utter insignificance. It can not be “an inestimable acquisition” if it can be most quickly and easily acquired by theft, and against the consent of the governed.

    There are no safeguard surrounding it.

    Steve57 (5a07a9)

  106. We can not preserve the blessings of liberty to ourselves and our posterity if anyone can just come in and grab those blessing of liberty, and our own government tells us we can’t say anything about it.

    Steve57 (5a07a9)

  107. Being born is not an illegal act. And assuming the Preamble is law, that’s what “Amendment” means — it amends the law. “Amends” means “changes”, BTW.

    nk (dbc370)

  108. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

    papertiger (c2d6da)

  109. nk, who ever said being born is the illegal act? Illegally entering the country is the illegal act.

    …The chief justice first laid down the general principle: ‘The jurisdiction of the nation within its own territory is [169 U.S. 649, 684] necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.’ 7 Cranch, 136.

    He then stated, and supported by argument and illustration, the propositions that ‘this full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power,’ has ‘given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation,’ the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license

    So why should we amend the Constitution to end birthright citizenship when the Constitution doesn’t grant birthright citizenship to those who, according to the Wong Kim Ark decision, are not eligible for it?

    Wong Kim Ark’s parents were in this country with this nation’s license. This waiver, as the decision explains, is a limitation on this nation’s absolute jurisdiction over its territory that is self imposed, and with the consent of the governed.

    Illegal aliens are in this country without this nation’s license. To say that their children have the same rights as Wong Kim Ark did is to throw the entire basis for the decision out the window.

    Any limitation on this nation’s absolute jurisdiction over its own territory that does not derive from the consent of the governed, and is not self imposed, according to the court, is illegitimate.

    Wong Kim Ark had a legitimate claim to US citizenship, and the children of illegal aliens do not. The claims of the latter are illegitimate.

    Steve57 (5a07a9)

  110. U.S. v. Wong Kim Ark is the 1898 case usually cited by birthright citizenship advocates. In that decision the Court held that because Wong was born in the US of lawful permanent resident parents he was a U.S. citizen in accordance with the 14th Amendment. However, those same advocates also usually fail to acknowledge that if Wong’s parents had been here illegally he would not have been declared a US citizen even though he was born here.

    U.S. immigration law (8 U.S.C. § 1401) repeats the language of the 14th Amendment which includes the phrase subject to the jurisdiction thereof. However, in light of U.S. v. Wong Kim Ark the State Department misinterpreted (8 U.S.C. § 1401) and began to assume that anyone born in the US was a citizen without regard to the resident legal status of the parents.

    Hans A. von Spakovsky (1/14/11) summed it up as follows:

    …birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

    From Wikipedia:

    Bills have been introduced from time to time in Congress which have sought to declare American-born children of foreign nationals not to be “subject to the jurisdiction of the United States”, and thus not entitled to citizenship via the 14th Amendment, unless at least one parent was an American citizen or a lawful permanent resident.

    Both Democrats and Republicans have introduced legislation aimed at narrowing the application of the Citizenship Clause. In 1993, Sen. Harry Reid (D-Nev.) introduced legislation that would limit birthright citizenship to the children of U.S. citizens and legally resident aliens, and similar bills have been introduced by other legislators in every Congress since.

    ropelight (6dce3e)

  111. Just one more excerpt from the Wong Kim Ark decision.

    …The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes…

    This decision takes too much time to talk about permission to be here, license to be within our borders, etc., to make it at all reasonable that these justices were talking about granting birthright citizenship to the children of anyone who was here without permission or license to be here. Indeed, the children of anyone who is within our borders despite the fact their presence is prohibited, and despite our best (for argument’s sake) attempts to prevent them from being here.

    The decision also talks about the difference between the nation’s implied or expressed consent to limitations on its jurisdiction.

    If this country had no policy for the first century or so on the matter of immigration then everyone would have had implied consent to be here. A Mexican could legally cross into the US and naturalize at will, or a Spaniard could disembark a ship and head off. But once we had a policy about who could be in this territory then that consent became expressed, and only the children of those who had expressed consent to be in this country could have the right to birthright citizenship.

    Wong Kim Ark’s parents had permission to be in this country, the court goes to great pains to point out. If that made no difference, they wouldn’t have done so much to establish the point.

    Steve57 (5a07a9)

  112. The common understanding of “under the jurisdiction thereof” has been anyone we could exert legal authority over, which includes foreigners here EXCEPT those under diplomatic immunity. That was true in 1868 and remains true today.

    There are those who claim we don’t have to pay taxes under the Constitution, but no court of competent jurisdiction has ever agreed. Nor has any court agreed to the interpretation of the New Revisionists. US v Wong Kim Ark clearly did not recognize your version.

    Frankly, it’s more the sort of thing in a school debate meet. Do you realize normal people see you as crazy with wild-eyed “new” interpretations of existing Constitutional law?

    Acknowledging your cheeky reference to judicial activism, I would note it is most often liberal jurists who are willing to completely reinterpret such clauses, and that conservatives traditionally detest such tinkering.

    Estragon (ada867)

  113. Steve57 (5a07a9) — 8/21/2015 @ 10:03 am

    Sorry, but the laws at the time dealt mainly with naturalization. Deportation was for those not yet naturalized but found “undesirable,” usually criminal or subversive. The concept of “illegal aliens” is more recent.

    Estragon (ada867)

  114. Francisco Sanchez should hire Donald Trump’s lawyer stat, because if illegal aliens aren’t “subject to the jurisdiction” of the United States, California can’t try or punish him for Kathryn Steinle’s murder. Just like a diplomat, all they could do is deport him one more time and hope for the best. That’s what happens when you’re not subject to the jurisdiction of the United States. Even John Yoo, author of the infamous “torture memo,” can’t waterboard the 14th Amendment enough to find otherwise. Neither can Ted Cruz, who has argued for years that the Trump/Coulter/Levin arguments are not very good – and now advocates a constitutional amendment to address that. That’s what we’re supposed to do when we decide unconstitutional ideas are good ones, or constitutional ideas are bad ones.

    Xrlq (afb610)


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