Miscellaneous And Off Topic Subjects

[froot loops]

The country is surviving just fine without this nonsense.

[Hannibal]

I think that citizens of foreign countries who are here illegally qualify as much more than a "small exception". I am not familiar with the case law, but if there is a binding decision that disagrees with my interpretation then that sounds like a different roadblock than having to amend the Constitution.

Good luck deporting the parents. You have seen what happens when we just temporarily detain the parents and the kids in separate facilities.

[Dr. Strangelove]

The first federal limits to immigration didn't even exist until the 1880's. The very concept of an "illegal immigrant" would have been totally foreign to the Founders. When the 14th Amendment was written there was no such thing as "entering the US illegally".

[iam416]

I think that citizens of foreign countries who are here illegally qualify as much more than a "small exception". The crafters of the 14th Amendment wanted nothing to do with foreign citizens sneaking in illegally and then creating an American citizen because they were technically located on our dirt. I am not deeply familiar with the case law, but if there is a binding decision that disagrees with my interpretation then that is an entirely different roadblock than having to amend the Constitution.

First, I'm fairly certain the folks who drafted the 14th A didn't consider illegal aliens. So, there's a paucity of evidence either way. The problem is that the text is crystal clear so if there isn't evidence to the contrary then the text ought to control.

Second, Wikipedia does a good job of summarizing the two important Supreme Court cases:

Two Supreme Court precedents were set by the cases of Elk v. Wilkins^[25] and United States v. Wong Kim Ark.^[3] Elk v. Wilkins established that Indian tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisdiction of the United States. Children born to these Indian tribes therefore did not automatically receive citizenship under the Fourteenth Amendment if they voluntarily left their tribe.^[26] Indian tribes that paid taxes were exempt from this ruling; their peoples were already citizens by an earlier act of Congress, and all non-citizen Indians were subsequently made citizens by the Indian Citizenship Act of 1924.

In Wong Kim Ark the Supreme Court held that, under the Fourteenth Amendment to the U.S. Constitution, a man born within the United States to foreigners (in that case, Chinese citizens) who have a permanent domicile and residence in the United States and are carrying on business in the United States^[3] and who were not employed in a diplomatic or other official capacity by a foreign power, was a citizen of the United States. More broadly, the court characterized the statement, All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States as "the broad and clear words of the Constitution", ruling that Wong's U.S. citizenship had been acquired birth and had not been lost or taken away by anything happening since his birth

The first case took up the "subject to the jurisdiction thereof" language and more or less followed established English common law and traditions. The second case took up "born in the US" language. The second case involved legal aliens, but I don't think the rational changes much. Further, the second case involves a fairly exhaustive analysis of the history of birthright citizenship from England to the US.

So, my take is that if you want to nix illegal birthright citizenship you probably have to do it with the second clause and argue that "subject to the jurisdiction thereof" means something along the lines of entitled to be in the US. That's a pretty big stretch, IMO, and my sense is that illegal birthright citizenship is covered by the 14th A and the Court will see it as such. In fact, my guess is that the Court wouldn't even grant cert on the issue, but rather let the Circuit court ruling stand.

[Hannibal]

"Subject to the jurisdiction of" = here legally. That is not only a reasonable interpretation but I would argue the common sense and most intellectually honest one. It's a far more common sense interpretation of the language than abortion being a guaranteed right in the Constitution, the ridiculously generous interpretation of the "interstate commerce" clause that the Warren Court gave us, and the dozens of other Constitutional shreddings that Left Wing activist judges have given us over the years. You might be right that the courts will not overturn the current interpretation and I wouldn't even begin to argue that that Trump's EO doesn't violate legal precedent. But you don't need a Constitutional amendment. And even if you had one I guarantee that the loony kook 9th Circus Court would still find a way to ignore it.

At any rate, good luck finding away to keep the country solvent with an ever expanding welfare state and open borders.

[froot loops]

Roberts wants to deal with that like some poor sap in the neighborhood wants to deal with a flaming bag of dog crap on his porch.

[froot loops]

Warren wasn't part of the court during United States v. Wong Kim Ark

[iam416]

"Subject to the jurisdiction of" = here legally.

Yeah, I mean, that's what you have to argue. BUT, that's not the history of the language. That language was put in for two specific reasons: (1) when you're occupying territory you've just claimed, the folks you're conquering to get citizenship rights automatically; and (2) foreign nationals (embassies) that have kids in the US don't count. The common law history suggests rather strongly that if you were born in England (or the US) you were/are a citizen.

But, yes, that's the language they have to rely on. I just don't think it works, at least from what I've read.

[AlabamAlum]

The first federal limits to immigration didn't even exist until the 1880's. The very concept of an "illegal immigrant" would have been totally foreign to the Founders. When the 14th Amendment was written there was no such thing as "entering the US illegally".

That's true. You just had to be of reasonable health (without disease). We had wilderness to settle and work to do and if you did neither, there were no real social programs for you to draw from. You just starved. Now there are social programs that the citizens pay for and the population is 700% greater than it was in 1880. Some limits on immigration are needed.

[Dr. Strangelove]

"Subject to the jurisdiction of" could not have been written to apply to illegal immigrants because there was no such thing as an illegal immigrant in the 1860's. Talking about illegals in the context of the 14th Amendment is an anachronism.

[Kapture1]

"Subject to the jurisdiction of" could not have been written to apply to illegal immigrants because there was no such thing as an illegal immigrant in the 1860's. Talking about illegals in the context of the 14th Amendment is an anachronism.

You are correct, there needs to be a revisiting of this by SCOTUS. And thankfully Trump has appointed the last two justices, not Clinton.

[Dr. Strangelove]

AA- A few states passed immigration laws in the Civil War era. In the 1870's the Supreme Court ruled that immigration fell exclusively under the duties of the federal government and individual states could not have their own policies. The first federal limits came with the Chinese Exclusion Act in the 1880's. Prior to that you might be quarantined in a hospital for a while if you were sick, but otherwise, there was virtually no one denied entry.

[iam416]

"Subject to the jurisdiction of" could not have been written to apply to illegal immigrants because there was no such as an illegal immigrant in the 1860's

Right, but that actually favors Hannibal's argument because by the same token it's clear the citizenship provision wasn't written to apply to illegal immigrants. So, it's clear that the drafters didn't consider illegal immigrants. If there was illegal immigration AND they wrote the 14th A as is then it's a slam dunk case for birthright citizenship. But, as it is, they didn't consider it. So, you then have to work back to what they did consider and analogize those situations to illegal immigration. And that leaves the door open.

Put another way, the drafters of the 14th A surely didn't consider whether dudes could marry one another. If they had then I'm quite certain the resolution would have been clear, but they didn't, and that opened the door to "living breathing love wins" analysis.

It's certainly plausible the same could happen with birthright citizenship -- if the conservative justices decide to play by the Ginsburg-Sotomayor rules. But, I don't see that. Roberts won't and I'm actually fairly sure Thomas wouldn't either. Agree with him or not, that motherfucker is a hard core originalist.

[Dr. Strangelove]

You are correct, there needs to be a revisiting of this by SCOTUS. And thankfully Trump has appointed the last two justices, not Clinton.

Originalists are probably obligated to read the 14th in the same way I just did. Ironically, Gorsuch and Kavanaugh would have to behave like activist judges to argue that the authors of the 14th intended it to apply to a concept that didn't even exist at the time of writing. A new Amendment is ultimately going to be the only real path (if ending birthright is the end goal) here other than immediate deportation at the border.

[AlabamAlum]

AA- A few states passed immigration laws in the Civil War era. In the 1870's the Supreme Court ruled that immigration fell exclusively under the duties of the federal government and individual states could not have their own policies. The first federal limits came with the Chinese Exclusion Act in the 1880's. Prior to that you might be quarantined in a hospital for a while if you were sick, but otherwise, there was virtually no one denied entry.

Correct. Well, they would also put you back on the boat, too. But there were just no real need for limits then. There are now.