Redstate

A much needed piece on a much demagogued issue. Thanks.

It's been a while since we've seen you. Good to have you back.

As much as I'm concerned about illegal immigration (which is to say, a lot less than LoneWacko, but still quite a bit), I'm 100 per cent with Moe on this one.

Simple, leave the constitution alone. Continue citizenship for children of illegals born within the US, but tell the parents that they must leave.

Give them the option of taking the child when they leave, or giving the baby up for adoption.

That will stop the "anchor baby" problem...

No court has ever ruled that the 14th amendment applies to the children of illegal aliens. AND subject to the jurisdiction thereof is an additional requirement.

http://claremont.org/writings/051207eastman.html

http://www.redstate.org/comments/2005/12/12/94611/939/52#52

...is that the "anchor baby problem" doesn't exist. This is just from conversations with foreign-born colleagues when I jokingly suggested a way to solve their visa troubles was to have a kid. Doesn't work, at least for them, in any meaningful way.

Immigration law, though, is not as transparent as XIV.

congressional record by the authors and opponents of the fourteenth amendment (which is a very interesting read i must say), it is clear to me that citizenship was intended to be granted to ANYONE who was born in this country, no matter what the status of the child's parents were .

if anyone wishes to read the debates, i recommend the book "The Reconstruction Amendments Debates" which is a compilation of the Congressional Globe - aka the congressional record (if i understand correctly) - anyway its an "edited" version of primary source documents.  - edited in that the entire record for the years it covers would fill tens of thousands of pages and most would have nothing to do with the subject matter of the reconstruction amendments.

how much clearer can you get than All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States (edited and emphasis mine)

the drafters of the amendment may been to exclude illegal aliens from the protection of the birthright citizenship clause, but the clear meaning of the text belies that intent.

Scalia, for one, would likely not agree that bare historical evidence of intent absent corroboration in the Constitutional text is a legitimate method of interpretation. He's on record as advocating reliance on the original meaning of the text -- the meaning of the actual words of the amendment as commonly understood at the time of ratification. I think, on balance, he's absolutely correct in making that distinction between original intent and original meaning.

Congress has the obligation to encode their intent clearly into the text of the amendment, because the text should rule. As much as I dislike the practice of granting citizenship to the progeny of those who entered the country illegally, the amendment seems clearly to require it.

I have read and posted on RS for a while now. I do not read every single article but I see most of the headlines and read many of them.

Having said that, this is the worst article I've ever seen posted on this site. It's so totally incorrect, so totally contrary to everything RS is supposed to stand for, that I am very surprised at the weak, even encouraging reaction so far.

This is the reasoning, the general form of rationale, that has degraded the Constitution and the country it applies to. This is what Robert Bork sacrificed his career to oppose. This is the fundamental difference between 'them' and 'us.'

I guess Moe believes the First Amendment means the government CAN MAKE NO LAW abridging the freedom of speech? So, Moe, can I go to DC, stand on the steps of Capitol Hill, and announce I am about to assassinate a member of Congress? When the armed Capitol Police approach me, I assume they could not interfere with me in any way... because Congress can make no law that in any way limits any speech.

Really, I feel silly even pointing out how obviously wrong it is to take every word literally. There is not a single judge in the history of this country that agrees with that approach. Not a single one. The Constitution is a set of rules and guidelines, which are subject to some interpretation. That courts exist is proof of that need-- the Constitution even called for a "supreme" court specifically.

Courts exist to interpret law. They exist because general laws often are insufficient to inform particular cases. They exist because laws are not made in a vacuum but have a context. Legislatures pass laws to accomplish certain goals and they do so for certain reasons. Democracy means following their will, because legislatures and executives answer to the voters.

When the 14th Amendment was passed, it was passed for a reason. That reason was to legally establish recently freed slaves. I think perhaps it is Moe that cannot read-- but it's not just an inability to read the 14th Amendment, but the 13th, and the 15th, and the history books, and books about law and the Constitution.

What Bork says is that judges are to faithfully derive principles from the law, and then resolve conflicts with those principles. That's what Antonin Scalia and Clarence Thomas and John Roberts say. Often it is even what Ronald Dworkin and Stephen Breyer and Lawrence Tribe say, though they draw their principles in a broader fashion.

The PRINCIPLE behind the 14th Amendment, Moe, is NOT to promote illegal immigration, to make geography the determinate of citizenship. Freed slaves were given citizenship because they EARNED that right. They DESERVED that right. When a Mexican woman crosses an invisible, artificial line in the sand, and has a child, that child does not deserve American citizenship. The writers of the 14th Amendment did not think that. They did not MEAN that.

To say otherwise is to tell a lie. It is to ignore the true meaning of the Constitution in favor of a childish exercise. What really concerns me, however, is not the gross and incredible nature of that folly, amazing as it may be. What concerns me is the purpose of telling the lie... which is to bolster illegal immigration against the best interests of American citizens and law-abiding immigrants.

Rep. Deal deserves an apology from Moe. He stood up for the principles behind the Constitution. He stood up for the meaning of the 14th Amendment. Moe took a few words and distorted them... badly. If this is the position of RedState, then RS should be opposing Samuel Alito. Frankly, this is a disgrace to RS as a whole, because it is a front page article that is a poorly argued assault against conservative principles.

The "evidence" Moe cites is actually in opposition to the argument it allegedly supports. Yes, there are circumstances where the PRINCIPLE behind the 14th Amendment applies to people other than freed slaves. The problem is this Moe, and it's a biggie: the US Congress is free to clarify the meaning of "natural-born citizen" WITHOUT A CONSITUTIONAL AMENDMENT.

When Gray said "it must be interpreted in the light of the common law," he clearly and without question meant that the Congress was free to define it, but that such a definition was lacking at the time of the legal conflict. Any time there is a need for interpretation of the Constitution, Congress can provide it WITHOUT an amendment. Amendments are only needed to CHANGE the laws and guidelines established previously (i.e. allowing slavery).

What's interesting is that no one in academia or on the bench accepts the validity of Moe's approach here. Conservatives obviously are opposed to it, but even the left relies on a sort of natural law theory to justify their broad interpretations. The argument Moe advances is completely and unalterably wrong aside from any ideological considerations. With those ideological matters considered in addition, it is not only wrong but offensive to the principles behind any conception of "conservatism."

Do you seriously believe, when the 14th Amendment was passed, that the American public interpreted the 14th Amendment such that any person born in the US automatically gained citizenship?

There is ZERO chance that was the case.

I think I've been doing my share of lurking. My urge to comment seems to come and go in fits and spurts.

had a clear meaning at the time which did not included the children born to illegal aliens. Congress has expanded citizenship conferance thru statute which they are allowed to do under the naturalization clause and so thay can scale it back by statute.

If birth were all that mattered they would not have incl;ded the ADDITIONAL requirement of jurisdiction and what is clear is that  an alien cannot subject himself UNILATERALLY.

Read

http://judiciary.house.gov/media/pdfs/eastman092905.pdf

and see what you think

to me what you mean.

If a person is residing in the United States, and is regarded as a citizen for having been born there, isn't that person de facto subject to the jurisdiction of the United States?

What am I missing?

I'd really hate to open up WestLaw this late, but are you maintaining that permanent residence within the United States does not automatically subject a person to personal jurisdiction within the United States? The only possible exceptions I could see would be statutory/treaty (diplomats and their children, for instance).

If illegals are not subject to the jurisdiction of the United States, one wonders how the status of their legality would even be adjudicated? That's much less applicable to their children.

I can certainly sympathize (somewhat) with the umbrage youwouldno is taking, the text of the 14th is pretty clear. If you're born here, to a permanent resident here, you are a citizen.

The words of the amendment are perfectly clear. Which of those words do you suspect had a different meaning in 1866?

that pesky ADDITIONAL requirement

"and subject to the jurisdiction thereof"

clause and just said all persons born here are citizens,

but they didnt.

Seriously, though, given that 13-15 were ratified mainly in an effort to end reconstruction, the public understanding at the time and (most especially) the legislative intent should be given even less credence when discussing these amendments. Sadly, the exact opposite is very often the case.

You are, I'm afraid, grasping at straws, as nearly as I can tell. Someone just passing through the United States would be subject to specific personal jx, but probably not general personal jx. By statute/treaty, some folks who are here are not subject to personal jx at all (diplomats, etc).

However, A permanent resident, even an illegal one, is almost certainly subject to general personal jx.

What was the 14th Amendment about?

Was it intended to protect illegal immigrants?

What was the principle behind the amendment? That being born 1 foot within US territory made someone a US citizen, but 1 foot outside territory did not?

Please. Go peddle your garbage on DKos or something. RS is better off without you.

When arguing with a fellow Republican and conservative (and yes, TPetey is both, regardless of how you feel about immigration), you do not betray that you are arguing from a position of strength when you resort to stuff like this:

Go peddle your garbage on DKos or something. RS is better off without you.

And besides which, it's against the posting rules.

Bring the rhetoric back down a notch, please.

It has nothing to do with COURT jurusdiction. Read Eastman

http://judiciary.house.gov/media/pdfs/eastman092905.pdf

TOnight, I'll pass. Remind me tomorrow.

I'm off to bed.

And I can read. It says what it says. The intent of the amendment isn't written into the text. It certainly could have been. There was no vocabulary shortage in 1866. They had plenty of words available for their free use and they could have chosen some to limit the text, but they didn't.

You clearly wish it said something different and I might wish it, too ... but it doesn't.

Also, unless I'm mistaken, you're not the posting privileges sheriff around here, so I think I'll hang around.

The fact that foreign diplopmats and alien army babies arent citizens reveals the underlying meaning. The US and the alien must mutually agree that one is subject to PLENARY jusrisdiction. It has nothing to do with courts. We can try anyone we have not granted immunity to, in court.

I got carried away. But I think this is a factual matter, not a case of different subjective opinions. Bork/Scalia/etc. believe you can accurately derive principles from law, if you do your homework. I agree and apparently so does petey or whatever.

It is a fact that the "original understanding" Bork proposes we rely on was not, in any way, supportive of the notion tpetey claims. I'd expect such a claim from a raiding kossack, but not a Republican.

Bork, Scalia, all the conservative jurists totally disagree you. So do the liberals, by the way, but they aren't the issue.

You have not read Bork's book... that I can easily discern. It's too bad, because you would understand why you are wrong without needing a foundation in Constitutional law. The text of law is always limited because laws are often general, particularly Constitutional laws (original provisions and amendments).

The "original understanding," to quote Bork, is what matters, not your reading of the text. Your reading of the text is irrelevant.

I think the point of Moe's post is that the Constitution was not meant to be "interpreted." I agree; it was meant to change with the times via the amendment process.

I doubt very much that illegal immigration was much of a problem in 1866, but it is now. Perhaps the Constitution needs to change, but it needs to change via the amendment process and not just by Congressional fiat.

As for this specious argument:

"can I go to DC, stand on the steps of Capitol Hill, and announce I am about to assassinate a member of Congress?"

No, because your right to free speech ends where the Congressman's right to life and liberty begin. If the Congressman is shot by you (or lives in fear from the threat) his "unalienable rights" to life and liberty are impinged by your speech. You have a right to keep and bear arms as well, but that right (along with your right to life) may end if you point a pistol at the Congressman in the presence of a policeman or armed citizen.

Here you seem to be making Moe's point:

"The PRINCIPLE behind the 14th Amendment, Moe, is NOT to promote illegal immigration, to make geography the determinate of citizenship"

What Moe is saying (I believe) is that citizenship by birth may now be a problem due to illegal immigration and perhaps it's time to amend the Constitution.

When the Courts, the Congress, or the President read words into the Constitution that aren't there - or ignore words that are there - they change the meaning of the document for all of us. The Amendment process was made difficult for a reason. If a few men in positions of power can change the meaning of the Constitution by emphasizing some words and ignoring others - what kind of protection does this Constitution provide? I say none, and the less "interpretation" the better on Constitutional matters.

I apologize in advance for the short threadjack, but here goes:

<threadjack>

You've heard of distributed computing projects? Large, intractable problems requiring more computational power than the largest supercomputer can offer are partitioned into small chunks and distributed (along with software) to thousands of computers. When the processing of each small chunk is finished, the results are sent back and assembled into a solution.

Stanford University has a current distributed computing project called Folding@Home to simulate and help them understand how proteins fold and misfold (malformed proteins are thought to contribute to the development of Alzheimer's and cancers). Volunteers organize themselves into teams, and RedState has a team of volunteer folders, each agreeing to let the Stanford software run on their machines in the background (it's really very unobtrusive) to help them get their answers more quickly. Currently, there are more than 200,000 CPUs helping out.

See here for more information about the RedState team.

Anyway, thanks for asking. It's important work they're doing, and, for fun, we're competing with teams from DKos and DU. The more the merrier. :)

</threadjack&gt

As can be seen by the comments here, even the most transparent language, which I'll just quote again:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States"

is up for grabs. As far as I can tell from reading the comments that appear to be from lawyers, the question of "subject to the jurisdiction" revolves around plenary jurisdiction, so formal meaning of the passage at issue reduces down to "plenary jurisdiction + birth = citizenship." (This is why children of diplomats and heads of state don't get it.)

The simplest way for Deal and his gang to deprive folks of their citizenship (or claim it never existed) would be it seems to attack the first part of the equation. I don't know if that's legally possible -- the other option, of course, would be an amendment.

The problem is that there is no political will to do so. As a nation mostly isolated from the trouble spots of the world, our immigrants -- except for the occasional labor union and populist demagogue -- have been a continuous source of pride.

Most people don't mind building fences and walls. But the idea of a class of people -- born and bred in the United States -- who do not qualify, and never will qualify, as our equals is unpalatable.

The picture looks darker the longer the time frame. What would happen to these babies when they grow up? Most will never be eligible for naturalization. They will form an underclass, a parallel society like those that exist on the margins of Paris.

IANAL. But IAAC (I am a citizen.)

Scalia, as I posted earlier, is a member of the "original meaning" school of Constitutional interpretation. He's not a "strict constructionist" or an advocate of "original intent". He reads the text and asks how the words would have been understood by the ratifiers. He doesn't read subtext or hidden meanings. Intent needs to be realized in the text.

If the intent of the drafters is all that matters, why bother to read the Constitution at all? You can get all you need by reading the debate.

Maybe you just lack the knowledge to understand why. The Constitution WAS meant to be interpreted. That's a fact. It's a short document by any legal standard, with relatively few specifics with regard to 'rights.'

To remove the context of the 14th Amendment-- the abolition of slavery and legal protection of freed slaves-- is to totally destroy its meaning. Reading the words without that context is to distort them. That's what Bork and Scalia and Thomas and Roberts and Alito believe.

You should read what Bork and Scalia have written. Don't take my word for it.

and I'm guessing you're not his official spokesman. Since SCOTUS hasn't ruled on birthright citizenship, so I'm going to ignore your presuming to speak for him until you can link me to a statement that backs your view. You can do that, can't you?

Scalia is not very different from Bork. Obviously the intent of the lawmakers is critical-- but you confuse the issue.

The role of a judge is to determine the intent of the lawmaker but then derive from that intent a more general principle. After all, for a case to exist there must be a dispute that the original language does not clearly solve.

If our 'case' is whether the 14th Amendment means any birth on US soil = a US citizen, then Scalia would almost certainly argue the writers of the 14th Amendment were interested in ending slavery and establishing foundational rights for recently freed slaves.

Thus, there is no reason to believe they or anyone else at the time meant to legislate on the matter of immigrant births. In fact, they did not, and there is no possible method of disputing that.

What the lawmaker wrote is only the starting point. What he meant and how the general public understood the provision determines the true "law." The law of the 14th Amendment does not make US soil a holy ground where any birth must result in citizenship.

Frankly, I cannot believe there is even a dispute over that fact. Anyone that agrees with Moe needs to hit the books. Start with "The Tempting of America" and go from there.

I don't know why you responded to my post twice, it's rather bad form.

I'm not going to do your homework for you. Read Bork's book. Scalia's "A Matter of Interpretation" is also worthwhile, but is more complex and perhaps less suited to an introductory role.

I've studied this stuff. It's a waste of my time to prove the truth to you. Bork and Scalia are great legal minds... I just have read them. You should do the same.

to do some reading, GC, and I've found this:

Maryland's Reverdy Johnson, the only Democrat in this Reconstruction-era debate, gave Trumbull bipartisan support. "Now all this amendment provides is, that all persons born in the United States and not subject to any foreign Power ... shall be considered as citizens of the United States." Johnson emphasized that the jurisdiction requirement meant the same as the phrase "not subject to any foreign Power" in the Civil Rights Act of 1866, passed by the same Congress that ratified the 14th Amendment. The import of the jurisdiction requirement, affirmed by its drafters' expressed intent, is that after dealing with the special case of freedmen the Citizenship Clause confers birthright citizenship only on citizens' children.

I don't see how the author's conclusion that "the Citizenship Clause confers birthright citizenship only on citizens' children" necessarily follows. In the case of Hamdi, who spent most of his life in Saudi Arabia, it's clear that he was subject to a "foreign Power". But the children of resident illegal aliens who also reside permanently in the U.S. are not. They've never been under any other jurisdiction than ours. I still don't see why you say they're not subject to the full jurisdiction of the U.S. How are they not?

under advisement.

You're the one who made the wild claim that you knew Scalia's mind on this issue. Don't expect me to prove it for you.

If the words are meaningless without context and an "interpreter" then why bother writing them to begin with?

What I am saying is that the idea of limited government is undermined when a decision made by 9 men (and women) alters the meaning of the Constitution - effectively short-circuiting the amendment process.

The Constitution is short because the federal government was supposed to be limited in power. In fact, many Federalists believed strongly that a bill of rights was unnecessary because the Constitution did not empower the Federal Government to impinge anyone's rights to begin with. In theory - only those powers specifically enumerated are authorized - all others reserved to the several states or to the people. Since there is no power granted to regulate speech, and additional speech protection would not be required.

I think the context that you are missing is that the Federal Government has grown far beyond what the founders intended. There is a pocket version of the Constitution, and in my world there would be a pocket version of the United States Code as well. Unfortunately the latter is 55,000 pages long and wouldn't fit well in a moving van let alone my pocket.

A few quotes to close the post:

Most bad government has grown out of too much government.-Thomas Jefferson

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.

--Alexander Hamilton, Federalist No. 81, 1788

Scalia on "Original Meaning":

I am one of a small number of judges, small number of anybody -- judges, professors, lawyers -- who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I'm not a "strict constructionist," despite the introduction. I don't like the term "strict construction." I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description "strict." I do believe, however, that you give the text the meaning it had when it was adopted.  (emphasis mine)

See? Text. Not intent.

I think this will turn out like term limits a few years back.  Congress will pass a law, the Court will strike it down, and Congress will wring their hands and say they tried.

Heaven forbid they undertake some tough decisions.

Cool stuff, mind if I sign up?  I have a pile of cycles going to just my name, and those numbers aren't impressive compared to big groups numbers.

I would, however, encourage anyone else who might be interested to look here and respond in that diary so as not to hijack Moe's important thread any more than we already have.

. . .that bypassed automatic citizenship for the children of illegals, I would word it thusly:

"For the purposes of determining United States citizenship under Section One of the Fourteenth Amendment, any births to persons who are not legally within the boundaries of the United States at the time of said births shall be deemed to have taken place within the physical boundaries of the nearest Embassy of the home nation of said persons within the boundaries of the United States, regardless of the actual physical location of said births."

Thus removing those births from US jurisdiction and technically placing those births on foreign soil.

If the courts don't like that, then statutorily removing all vestiges of the "anchor" doctrine will do nicely--if the parents want to leave their newly minted American citizen child up for adoption in the States, or if the child wants to come back at 18 alone, I don't see any real problems with that.

was not meant to permit illegal immigration.

It was written to stop the horrid practice of denying citizenship to those born here of slave parents. The way the laws the IVX struck down was reasoned, the idea was that only children of full citizens (Non-slave) could be citizens.

Even New Zealand is closing the abuse of this concept.

We should as well. Muy pronto.

Having read the document in question I can say it is worth the time taken to read it.  Following is just a portion of what strikes me as relevant:

Historically, the language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the Fourteenth Amendment) was derived so as to provide a more certain constitutional foundation for the 1866 Act, strongly suggests that Congress did not intend to provide for such a broad and absolute birthright citizenship. The 1866 Act provides: "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."  As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's parents, remained a citizen or subject of the parents' home country, was not entitled to claim the birthright citizenship provided in the 1866 Act.

[snip]

When pressed about whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction; "[n]ot owing allegiance to anybody else." And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now" (i.e., under the 1866 Act). That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin to explicitly exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant.

[snip]

As Thomas Cooley noted in his treatise, The General Principles of Constitutional Law in America, "subject to the jurisdiction" of the United States "meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government."

[snip]

But the effort to read Wong Kim Ark more broadly than that, as interpreting the Citizenship Clause to confer birthright citizenship on the children of those not subject to the full and sovereign (as opposed to territorial) jurisdiction of the United States, not only ignores the text, history, and theory of the Citizenship Clause, but it permits the Court to intrude upon a plenary power assigned to Congress itself.

From this it is appearent that Congress needs to take action to rectify this, though it does indeed appear that they will not.

Re: This is not one of those times; the language of the Amendment is clear and backed up by legal precedents over a century old*.

I have to disagree. Please note a very gaping historical exception. Native Americans did not gain citizenship under the 14th amendment (this took a special act of Congress in 1924) though they were born in the USA and were here quite legally. The amendment doesn't just say "born in the United States", it adds "subject to its jurisdiction". If Congress specifies that children born to illegals are not so "subject" (just as Native Americans were not back in t6he 19th century) then they do not gain automatic citizenship.

entering the lion's den I'll toss in a few words and then run for cover. On the face of it the idea that someone who is breaking our laws by being here can be rewarded by citizenship for their child and thereby granted entry themselves is classically counter intuitive, if i may lapse into the vernacular, it's idiotic.  I could see soft, tender hearted Thadddeus Stevens just cooing over the prospect of all those cute things and their illegal parents, to be followed by an immediate and early introduction of an 19th century welfare state.  There is both meaning and intent and as much we pigeonhole judges and scholars you can't, as the song goes, have one without the other.  In a country where you need only print in a group's name on those "No--------need apply" signs the idea that we might turn the Rio Grande, or any other approach, into the yellow brick road to citizenship is ahistorical.  This is another situation where the 14th has come back, actually it never goes away,to either haunt us or give us at least a case of indigestion.  Now I'll head for cover.

This is one case where the wording is clear.  For us to reach for "penumbras" emanating from the Constitution is to leave the door wide open for other such efforts that will come back to bite us - and make things worse elsewhere.

To be honest, this effort also soudns an awful lot like punishing newborn children for the actions of their parents - and that might get a little too close to "corruption of blood" (which the Constitution expressly prohibits) for my comfort as well.

 the 14th is a floor not a ceiling, so Congress could pass naturalization law to deal with particulars like kids who had lived here all their lives as opposed to kids like Hamdi, whose citizenship grant seems wacko to many of us.

From what I have learned so far, I personally think Moe is wrong on the Law, but setting that aside.

There is no doubt that Moe Lane is wrong in his accusations of disregard for the Law with regard to others, and Nathan Deal in particular. The constitutional interpretation is in no way as clear as Moe Lane is asserting, and Deal is not just applying common sense in opposition to the current citizenship policy, but a well-reasoned analysis and interpretation of the 14th amendment.

Evidenced thanks to gamecock

http://claremont.org/writings/051207eastman.html

http://judiciary.house.gov/media/pdfs/eastman092905.pdf

http://www.redstate.org/comments/2005/12/12/94611/939/82#82 (TheSophist & gamecock debate the 14th)

One may believe that Eastman is wrong, but one ought to argue that (and I am interested in following that argument as I try to firm up my own mind about this issue) rather than assert with high flying confidence that the law makers are flying off on a whim with complete disregard for the Constitution. This latter approach unfortunately suggests ignorance of ignorance to me. What is the word for ignorance of ignorance? I choose to look forward to a better treatment of this subject by Moe.

The kids are citizens in that case but it doesn't do much for the parents' immigration status (and nothing automatically). They would get higher priority with a kid who is a citizen, but you are still talking about a long wait and hoops to jump through.

Isn't your citizenship automatically the same as your parents? Say an American citizen travels to France, or Ghanha, or Singapore and gives birth to a son. Is that son an American citizen? Wouldn't that make the son subject to a foreign power?

on the circumstances. If both parents are US citizens and have resided in this country in the past "N" years then the child is a US citizen. But there are a lot of other conditions if only one parent is a US citizen, etc.

I don't have time to Google it for you but it is not as straightforward as it might seem.

... cut the chain! There is no constitutional right of a citizen to bring in your relatives. This can be done by statute. Period.

(Some say anchor babies have not been a problem, but the illegal immigration explosion since the 1990's means that we have not seen how big a problem it can be.)

See, there you go. Right there, Scalia is contradicting you. He is with Bork-- it's the ORIGINAL meaning of the text, not just the text itself.

In fact, he even says right in that quote that he dislikes "strict construction," which he defines as a literal interpretation of the text.

The original meaning of the 14th Amendment was to give natural-born blacks full citizenship. There was no other meaning.

You are uneducated on this topic. It's not my problem... maybe you're 15 or something, in which case it's understandable. Try to read Thomas' RedHot posts on the matter, if you won't do anything more serious about understanding the debate.

The Constitution calls for a supreme court because the Founders knew there would be a need for interpretation. No law can cover all potential cases.

The laws are given but courts are required in situations where a lack of clarity in the law causes a dispute. In this case, whether US soil is a kind of holy ground where any birth equates to a citizenship.

There is zero chance-- zero-- that the writers of the 14th Amendment or the people that voted for them accepted such an interpretation. They thought they were freeing slaves. Without the context of the law, its meaning is totally arbitrary.

Read Bork. He explains it all quite well.

I think, looking at the situation, illegal immigrants ARE subject to American jurisdiction, at the very least on a de facto basis.  On the most basic level, they are called "illegal" immigrants because they are breaking our laws.  Hence, we are subjecting them to jurisdiction of our laws.  Furthermore, illegal immigrants pay taxes, use our public services, and many other things that they would not do if they were not subject to the jurisdiction of the federal/state/local governments.

is a loaded term when dealing with anyone who made it through the first month of lawschool.  Does anybody have any links as to what "jurisdiction" meant in the context of the 14th?  I doubt it's the same as the satan scrawl which is Pennoyer v. Neff.

Any child of a diplomat born here is not a citizen of the United States.  

Just check this with the French!

two nations. They are eligible for U.S. citizenship (which they exercise) because dad is an American. They are eligible for Polish citizenship (which they do not exercise) because mom is a Pole.

They were born in the United States, but may someday choose to live and work in Poland. In my estimation, they should have that right by virtue of the fact that my wife is a Pole, and her family (still in Poland) are Poles. Add in the fact that my kids speak and write Polish, and I see no problem whatsoever. I don't think anyone else will, either, as long as my kids were willing to surrender their rights and priveleges as Americans. You shouldn't be able to have it both ways.

Here we have a discussion, however, over individuals who have no tie to the United States. They come into the country in violation of its laws. They stay here in violation of its laws. They frequently don't speak English, don't have any loyalty to the country, nor do they necessarily plan to stay here permeantly. Yet, by some strange quirk of fate, their children born here (who have no cultural attachment whatsoever) are considered citizens.

This beggars the imagination. In fact, it makes no real sense. It is as if a baby born on your property to trespassers somehow acquires rights over your home.

Given my research on the subject, I believe that it is within Congress' power to further define the 14th Amendment under statute to preclude the children of illegal immigrants. In fact, I think that it is incumbent upon Congress to do so.

The alternative to this is a continuing demographic change in the composition of the United States that will eventually transform our entire society into an alien place none of us recognize.

This is a tricky issue for both parties. Its also one where I would like to see one or other come out from hiding and get real.

This country was founded on the backs of cheap exploitable immigrant labor. There arent many more potential white immigrants left who want to come.

Now that we are attracting hard working and intelligent people from Latin America and Asia we are forcing them to become criminals to get in, when we need them at least as much as they need us.

Could it be the color of their skins that sets up the predictably tired American race non sequitor?

Don't we ever learn?

What were the requirements for citizenship immediately before the 14th was ratified?

I do believe, however, that you give the text the meaning it had when it was adopted.

This does directly contraidict what you are saying. This is the whole origialist vs textualist distiction. Thomas/Scalia/Bork are originalists. I don't know of any textualists.

If two people come here from Mexico, having lived their entire life there and have a child, wouldn't that child also have Mexican citizenship? I'm sure it depends somewhat on the country of orgin but I could see how at least some children would also be subject to the jurisdiction of another power.

granted citizenshipo by birth pursuant to a congresional statute under which congress and the INS have taken a expansive view of the 14th amendment thru custom.

Interestingly, both Scalia and Stevens parted company with OConnor in calling Hamidi a citizen. They said presumed citizen only.

One important point is that congress may BROADEN the definitiopon of citizenship thru statute but may not narrow the definition.

and forcing Latin Americans to be criminals. I guess murder laws force murders to be criminals when they kill?

Go read about the pilgrims and puritans and other hard working pioneers that founded the US. And ask the hard working immigrants if they consider themselves pitiful exploited masses that need a Lenin when they cash their paycheck.

You seem to have the race fixation like much of the left, sadly.

You slander the greatest country in the world. I honestly dont know how people that hate America so much stand to live here. Except that of course they dont. Its all pretense to seem morally superior and to mask guilt.

It must be a terrible burden to not be able to love one's country.

Moe may have been a bit heated rhetorically re: Nathan Deal, but to your point, let's address the law to boot.

Gamecock has performed a valuable service by gathering the legal arguments for what Deal wants to do: eliminate the birthright citizenship for illegal immigrants.  I would have responded on the other thread, but I think the discussion has moved here.

Much heated rhetoric on both sides of the issue exists, and it is unwarranted.  In this case, I think both the proponents and the opponents are men and women of good will, who want to do the right thing.  I do think Eastman makes a case for why illegal immigrants are not covered under the "jurisdiction" clause of the 14th Amendment.  Ultimately, my personal judgment is that Eastman's argument isn't convincing enough to overcome centuries (literally, hundreds of years) of common law tradition wherein birthright citizenship is an inherent power and duty of the sovereign.

As to the original intent issue that's being discussed in this thread as well, I think it far more likely that the 19th century legislators who passed and ratified the 14th Amendment meant to codify the existing common law understanding of birthright citizenship.  Yes, the 14th is about slavery, but the debates do show that it wasn't only about slavery -- Indians figure prominently in the debate as well.  So it was about citizenship, and as I see it, Congress of the time simply adopted the prevailing common law understanding of citizenship: whoever is born within a sovereign's territory and subject to his jurisdiction (i.e., not an ambassador and not a conquering army) is a citizen both owing allegiance to the sovereign and owed protection thereby.

I seriously doubt that the notion of illegal immigrants existed at the time of the 14th... so the question becomes, what do we do now in the situation we find ourselves in today?

The Eastman Argument

One clear approach is to amend the Constitution.  Let's set that aside for the time being, since that is always the ultimate answer and always available no matter what the issue.

The Eastman approach, so well articulated by Gamecock and others, requires three steps.  First, make a distinction between jurisdiction over territory and jurisdiction over a person.  Second, argue that the 'jurisdiction thereof' language of the 14th is jurisdiction over the person, and that it really refers to a total political jurisdiction

in which the person himself in some significant way alleges fealty to the sovereign.  This, it is averred, is why the Indian, though born in the U.S. of parents and grandparents born in the U.S., is not properly a citizen by birthright because he does not owe a total political allegiance to the U.S.  But critically, third, argue that the 14th is merely the floor and not the ceiling; Congress may expand citizenship by legislation, but not contract it below the 14th.  So Congress can, and did, grant citizenship to Indians by legislation; Congress can grandfather in those children of legal immigrants born here by legislation.  And Congress can, if it wishes, choose to withhold citizenship to children of illegal immigrants who do not owe complete political allegiance, evidenced by the fact that they're breaking the law of the U.S. by being here at all.  Congress cannot deprive citizenship of a native born American of American citizen parents.

The Common Law Argument & Little History Lesson from Wong Court

The Common Law approach, which is the current legal regime as I understand it, is rooted in hundreds of years of tradition in English history.  Like most common law principles, it was developed during feudal times when 'citizenship' was more about dominion of a particular noble/prince/king than a notion about political membership in a nation.  

Nonetheless, you can read the Wong Kim Ark case to get a sense of the history of the common law principle involved.  Let me cite a few excerpts here, as the case itself is pretty long:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called 'ligealty,' 'obedience,' 'faith,' or 'power'-of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual,-as expressed in the maxim, 'Protectio trahit subjectionem, et subjectio protectionem,'-and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king. (U.S. vs. Wong Kim Ark, 169 U.S. 649, 655. Emphasis added.)

And more:

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: 'By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to

have been given to descent as a source of nationality.' Cockb. Nat. 7. (Id.,

657)

After many more cites to old English authorities, the weight of common law decisions leads the Court to conclude:

It thus clearly appears that by the law of England for the last three

centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. (Id, 658)

That's all fine for English common law; what about American law?  Well, the Wong court goes into some depth there as well:

Again, in Levy v. McCartee (1832) 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the state of New York, where the statute of 11 & 12 Wm. III. had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that by that law a child born in England of alien parents was a natural-born subject; quoting the statement of Lord Coke in Co. Litt. 8a, that 'if an alien cometh into England, and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm'; and saying that such a child 'was a native-born subject, according to the principles of the common law, stated by this court in McCreery v. Somerville, 9 Wheat. 354.'

In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said: 'The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in

this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.' Id. 576. And to this extent no different opinion was expressed or intimated by any of the other judges.

In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: 'All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.' 'We find no warrant for the opinion [169 U.S.

649, 663]   that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.' 1 Abb. (U. S.) 28, 40, 41, Fed. Cas. No. 16,151. (Id., 662-3. Emphasis added.)

An interesting passage on French law that made citizenship dependent upon the parentage, not the territory, and how that might affect the U.S. Constitutional law:

The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code 'appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe,-'De la vieille regle francaise, ou plutot meme de la vieille regle europeenne,'-according to which nationality had always been, in former times, determined by the place of birth.' 1 Demolombe, Cours de Code Napoleon (4th Ed.) No. 146.

The later modifications of the rule in Europe res upon the constitutions, laws, or ordinances of the various countries, and have no important bearing upon the interpretation and effect of the constitution of the United States. (Id., 667)

As what is being proposed by Eastman and others is at least a variant of the jus sanguini doctrine, it seems relevant to me that the Wong court did deal with it at least in passing and rejected its application to American Constitutional jurisprudence of citizenship.

And finally, after the lengthy historical lesson, of which I have skipped many a page, we get to the 14th Amendment:

The real object of the fourteenth amendment of the constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,- children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,-both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42. (Id., 682.)

From all this, if you haven't given up yet, comes the current law of the land:

The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the wellknown case of The Exchange, and as the equivalent of the words 'within the limits and under the jurisdiction of the United States,' and the converse of the words 'out of the limits and jurisdiction of the United States,' as habitually used in the naturalization acts. This presumption is confirmed by the use of the word 'jurisdiction,' in the last clause of the same section of the fourteenth amendment, which forbids any state to 'deny to any person within its jurisdiction the equal protection of the laws.' It is impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence, as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the states of the Union are not 'subject to the jurisdiction of the United States.'

These considerations confirm the view, already expressed in this opinion, that the opening sentence of the fourteenth  amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship. (Id., 687-8)

Phew.  The current law of the land, then, is that anyone born in the territory of the United States is a native-born citizen thereof by the operation of the 14th Amendment, which simply codifies the ancient common law principle of legiality.

But What About Illegals?

But the story doesn't end there, unfortunately.  If it were so easy, good men of will on both sides would not be fighting.  Even the Wong court did insert some language into dictum that raises the current issue squarely:

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. (Id., 694)

"So long as they are permitted by the United States to reside here" is a pretty powerful clause in our current situation.  It appears that even Common Law approach must take into account those who are not permitted to reside here, at least in law if not in fact via vigorous enforcement.

There are two valid ways to interpret this, in my opinion.  First is the 'plain-text' reading: Permitted to reside here --> subject to the jurisdiction; Not permitted to reside here --> not subject to the jurisdiction.  That's fairly elementary logic, and seems sound to me.

The second way is to understand that clause as simply extraneous explanatory text about the common law principle involved.  After all, Ambassadors, who are specifically exempt from 'jurisdiction' are also permitted to reside here without being subject to jurisdiction.  So this dictum language is merely a gloss, and has no legal effect as to the actual law, which follows the traditions of the common law in which ambassadors are not subject to jurisdiction, and all persons born in the territory of the U.S. are citizens.

I don't know that one way is more valid than the other.  However, what does appear relatively clear is that Eastman's argument ultimately fails.  The common law precedent having been set for such a long time, and the 14th Amendment codifying the understanding of the common law into the Constitution, the idea that "jurisdiction" is different from the way it has always been understood under the common law seems not so compelling.  It is, to say the last, a novel interpretation of the term 'jurisdiction'.  It may be more appropriate to today's environment, but that in and of itself doesn't make the doctrine square with the precents of hundreds of years.

No, the better way, it seems to me, is to attempt to narrow the holding of Wong to those who are permitted to reside here.  That follows the common law principle of jus soli instead of the rejected Napoleonic principle of jus sanguini and has greater chance of success.

Congressional Action in Context

With all that out of the way, then, the proposed legislation must be considered.  If the current law, the current interpretation of the 14th Amendment (i.e., the common law approach), is valid, then Congress cannot pass the legislation.  That would be going below the floor set by the 14th.

If, on the other hand, the current law (specifically Wong)can be narrowed as to speaking only of those persons who are "permitted by the United States to reside here", then Congress is not barred by the 14th and may legislate as it wishes with respect to illegal immigrants.

This is a tough one.

-TS

I'll have to copy this out! I think you have precisely stated the question at the end but will read all you wrote later.

I did find the phrase in WONG "but were predicable of aliens in amity" to be intersting, esp as it seems to be consistent with my cursory reading of your US common law summary.

I think that one can intuitively discern and with reference top the 1866 act, that the framers did not wish to give aliens  the power to unilaterally claim citizenship. Your "permitted by" construction is also consistent here.

more later and I never cease to be amazed at the quality of your work bro

By metaphysical refinement, in examining our form of government, it might be correctly said that there is no such thing as a citizen of the United States. But constant usage -arising from convenience, and perhaps necessity, and dating from the formation of the Confederacy - has given substantial existence to the idea which the term conveys. A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the states, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the constitution, which must be deduced from its various other provisions. The object then to be obtained, by the exercise of the power of naturalization, was to make citizens of the respective states."

Ex parte Knowles, 5 Ca. 300, 302 (1855)

I don't know much about the history.  U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), has quite a bit of historical discussion.  (Available online here:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&am
p;vol=169&invol=649)

Here is an excerpt which appears to address your question:

"Passing by questions once earnestly controverted, but finally put at rest by the fourteenth amendment of the constitution, it is beyond doubt that, before the enactment of the civil rights act of 1866 or the adoption of the constitutional [169 U.S. 649, 675]   amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States."

The decision, incidentally, quotes what appears to be a very extensive history, both in the US and at English common law, of granting citizenship to those born within a nation's territory.

Whoops - I did not see TheSophist's excellent post ("Eastman & Common Law -- Not So Easy") providing a much more thorough discussion of this topic.

and the explication of the role of common law in the interpretation of the 14th.

I hope to keep following the discussion.

I am reluctant to weigh in because I don't have the legal creds as you caught me on before.

I am a little confused by the use of 'allegiance' in the Kim case as this is the same point Eastman seems to be making tho' the conclusions turn out different.

Is Gray et al arguing that geographic birth entails allegiance while Eastman argues the allegiance involves volition and a baby's is assumed to be represented by its parents? (BTW, I see Eastman as arguing from allegiance not descent or blood as you suggest).

If I have assumed correctly regarding Gray, I can understand why king's common law would have found it beneficial to claim others owed them allegiance, regardless of whether they had ever intended to give it, because the allegiance could then be demanded to the kings benefit and punished as disloyalty.

My other question regards why all the empahsis on common law? Is that Gray's fallback because they found the intentions of the authors of the 14th were not clear? Eastman appears to me to argue from the record that their intentions were clear. Of course another poster here has read the record and also believes their intentions were clear, but to the point of birth being the only criteria, i.e. opposite to Eastman. I.e., if their intentions were clear and not strictly based on common law, then would I be correct to assume that the court should not fall back on common law for the interpretation?

I fear my questions may be ignorant so it is perhaps best if I just watch you lawyers wrangle it out. And again, i am thankful for the education.

I'm not sure if they actually do get higher priority, even; I believe you get precisely nada (or nyet.)

It depends on the kind of entry you are going for. I have heard it does make a difference if you have family members that are American citizens but I don't know the basis for that. There are a lot of ways to try to gain legal entry into the country and if it applies at all it probably only applies to one method.

I think you have a really wonderful grasp of the issues, and legal education means squat compared to native common sense... but that's just my opinion.  To answer your question, keeping in mind this is just the views of one non-practicing lawyer and that there are far brighter legal minds out there:

Is Gray et al arguing that geographic birth entails allegiance while Eastman argues the allegiance involves volition and a baby's is assumed to be represented by its parents? (BTW, I see Eastman as arguing from allegiance not descent or blood as you suggest).

In essence, yes.  Gray et al is arguing the common law tradition -- and yes, I got pretty confused myself because of the older English used in the Wong case -- wherein birth under a sovereign's dominion conferred citizenship, with two exceptions (ambassadors and conquering armies).  Eastman is arguing what is effectively a third exception: those who are not under the 'total political allegiance' of the sovereign.  That concept doesn't exist in the common law.  I suspect it's because the feudal system out of which the common law springs probably didn't care for such niceties as 'not-fully-total political allegiance'.  If you were in Duke Marlborough's lands, you were subject to his dominion, and owed him allegiance (whether you hated the SOB or not); therefore, your child would be 'citizen' of Duke Marlborough.  You didn't get to pick and choose.

Eastman is arguing something a bit different from jus sanguini, but it seems to me that it's substantially the same: jurisdiction/allegiance and therefore citizenship flowing from the parents, not from the territory/dominion of the sovereign.

If I have assumed correctly regarding Gray, I can understand why king's common law would have found it beneficial to claim others owed them allegiance, regardless of whether they had ever intended to give it, because the allegiance could then be demanded to the kings benefit and punished as disloyalty.

And you've hit it on the head, AFAIK.  "Allegiance" used in common law doesn't mean what we today normally think it means.  It's probably closer to use the word "Dominion" or "Power".

My other question regards why all the empahsis on common law? Is that Gray's fallback because they found the intentions of the authors of the 14th were not clear? Eastman appears to me to argue from the record that their intentions were clear. Of course another poster here has read the record and also believes their intentions were clear, but to the point of birth being the only criteria, i.e. opposite to Eastman. I.e., if their intentions were clear and not strictly based on common law, then would I be correct to assume that the court should not fall back on common law for the interpretation?

I don't know why the Wong court relies so much on the exposition of the common law; I suspect it had something to do with the politically explosive nature of the Wong case.  This case was the result of the Chinese Exclusion Act, after all, and hostility to 'Chinamen' ran extremely high at the time -- probably a lot higher than hostility to illegal immigrants today.  I suspect the justices felt that they needed to convince the people that the result, which they wouldn't like (granting citizenship to the Chinese) was mandated by the sheer weight of authority of hundreds of years of tradition and the opinions of weighty legal authorities, like Justice Story.  But that's speculation.

The jurisprudential answer, and the one that needs serious consideration, is that in order to interpret any statute, you need to understand the context.  Since most of American law arose out of the English common law tradition (e.g., all of our criminal law is now statutory, but they are all codifications of common law crimes), I think the Wong court was really trying to understand the background of the 14th Amendment.  It didn't spring forth from the American legislators after all fully formed; it came from established legal principles.

So if the 14th simply codified long-held traditions and principles of English common law, then that is extremely relevant to understanding what the legislators intended when the Amendment was drafted and passed.

That's my shallow understanding anyhow.

-TS

For some time I have struggled to back up the hypothesis that America's original sin was the desire for cheap labor. I suspect we followed Columbus' lead in working Indians to death; black African chattel slavery, then Chinese, then Eastern Europeans, then Mexicans, all to our own detriment and more or less to theirs.

(An individual usually benefits from being here, but the cost of his being here is too much in most cases: African tribes vanquished in battle and split up for the human market; Mexico's continuing lack of a middle class while its prospective members travel thousands of miles to support their families.)

Then the riots around Paris happened, and I was awoken to the clear fact that the sin is neither original nor particularly severe with the U.S. Sorry, not entirely evil, try another attack.

... pretty much puts all this other posturing (above ryanpickett's post) about what is and is not "jurisdiction" to rest, I think. The problem is not the newborn who gains birthright citizenship, it is the countless relatives who he sponsors to join him after he comes back as an adult. This can be addressed by statute.

The same statute should be written to prevent anchor spouses, which is something Israeli Arabs (full citizens) use to bring in Arabs from the territories in their demographic war against the Jews.

Of course one way to address this is to build up Latin America. A first start would be to close the release valve that the lighter-skinned Mexican ruling class uses to get rid of the darker-skinned, more Indian-descended citizens who have the will to work and the tenacity to succeed. Let them become the middle class Mexico so desparately needs, not one of what appear to be 30 guys at my local car wash.

is in real life a ruthless,capitalist exploiter of expensive labor.

Little red rooster- Just because his name was Marx doesnt mean he was absolutely incorrect about everything.

Even you may be right once in a while about something, although not much evidenced in this comment.

Besides you mistook my comment. I was cheering the American tradition of exploiting cheap labor. It built this country AND Its the bargain each wave of immigrants makes-

first generation exploited in order to purchase a ticket at the dance for future generations.

Happened to my great great grandparents from the old country in the 19th century.

I believe in the exploitation of immigrant labor. I am a capitalist myself, Gamecock's comment notwithstanding.

Our ancestors were all exploited labor at some point, except maybe Gcock's puritan ancestors. that is if they were able to lounge their way across the atlantic on the capns deck.

We are all exploited labor at some point. Then, if we are lucky, we escape the corporation and go out on our own.

I am right there with you on the diet part.

Most capitalists chunk the class warfare exploitation narrative, but to each his own.

Tell me how puritans that chose to leave Europe and travel to America and the manner of ship deck leisure activities relate to the exploitation world view?

Are all  low income workers considered exploited in your version of capitalism or is it only low wage first generation immigrants?

At what wage level does exploitation end?

Is Blank exploiting Vick?

Scalia gives import to the original meaning of the text, not to any subtext of presumed intent the words themselves do not express.

Your bizarre contention that intention magically translates into meaning regardless of the actual words in the text doesn't deserve any further response.

Really, there's no reason for me to continue to subject myself voluntarily to your childish insults. I think this conversation is over. You're not worth my time.

that the 14th amendment no longer applies to anyone since all of those freed by it are now long dead? Are you saying that - in accordance with your original intent argument - that these words no longer have any meaning? If so amend the constitution and repeal it immediately.

Also, the power of Judicial Review is not included in the Constitution, nor was it intended to be. The SCOTUS took that power for itself in Marbury vs. Madison. You can argue that without Judicial Review the SCOTUS is not an equal branch of government (and you may be right), but don't argue that the founders intended for the court to declare laws and actions unconstitutional. If that were the case, it would have been very easy to write that verbage into the document.

To me the consideration here is not the 14th Amendment - per se - but individuals "reading" intent into the words that may or may not be there. I agree that the courts were meant to interpret and apply the law, but not necessarily the constitution. I simply do not accept that my protections under the constitution should be derived from someone's "opinion" - even if that person is Scalia or Thomas or Bork. I will accept their interpretations of the law, but again - to the maximum extent possible - the constitution should not evolve based on opinion.

South Carolina variety school colors

rooster alum

we lose a lot

builds character

I looked for what this meant and posted a whale of a comment.  I hope that's helpful; it will also be helpful to read the Wong case in its entirety... :-D

-TS

They are eligible for U.S. citizenship (which they exercise) because dad is an American. They are eligible for Polish citizenship (which they do not exercise) because mom is a Pole.

The accurate statement here would be:

They are U.S. citizens under the 14th Amendment because they were born in the United States; they are eligible for U.S. citizenship because their dad is an American citizen.  They are eligible for Polish citizenship because mom is a Pole, but that depends entirely upon the legislative actions of the Polish government.

Your formulation follows the Napoleonic jus sanguini ('jurisdiction/citizenship follows the blood') model almost to a T; it is one that has been rejected and always has been rejected by Anglo-American legal tradition.

Here we have a discussion, however, over individuals who have no tie to the United States. They come into the country in violation of its laws. They stay here in violation of its laws. They frequently don't speak English, don't have any loyalty to the country, nor do they necessarily plan to stay here permeantly. Yet, by some strange quirk of fate, their children born here (who have no cultural attachment whatsoever) are considered citizens.

That's true; and it's a tough question.  However, their children born here are not citizens by some strange quirk of fate, but by the operation of the 14th Amendment that codifies the principles of jus soli ('jurisdiction/citizenship follows the soil') embodied in hundreds of years of common law.  That can't just be ignored either.

It is within Congress' power to define the 14th Amendment to exclude children of illegals; but as of now, I think that would require Congress exercising its Amendment powers... simple legislation probably won't do it.

-TS

American citizenship even if born in Poland, since I am a citizen. 'Jus sinquini' is part of our legal system as well.

There has never been a test case for illegal immigrants under the 14th Amendment. There was a the Elk case that was rightly decided. The case "ELK v. WILKINS, 112 U.S. 94 (1884)" was about an Indian man who had left his tribe and wanted to start voting:

"The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303 , 306.

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared [112 U.S. 94, 102]   to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations."

There was a later case that basically said that the children of legal immigrants to the United States were citizens when born here. That was the Ark case, which I think was wrongly decided. Congress could and should clarify this through legislation, and if necessary, exempt that legislation from review by the federal courts.

The previous precedent should stand, not the later corruption.

And with that kind encouragement I'll risk getting my foot caught in my mouth again.

 The situation is shaping up in my mind but I don't find it very pretty. (Ironically, I found Eastman's judgment that Gray got it wrong a beautiful thing).

I think I still have one question left. The SCOTUS in Wonk Kim Ark has certainly, as is its role, interpreted the Constitution. What institutional right does Congress have to interpret the Constitution and apply scope (narrow vs. broad) to the interpretations of the SCOTUS? Is there a bright line or is this a gray area in the separation of powers doctrine?

This is pertinent because Eastman is asking Congress, in the very least, to apply a narrow reading of the Gray opinion, in contrast to the broader reading that seems to be in effect in current law. So, especially in the context of Moe Lane's story, it really is pertinent to know whether Congress has an institutional right to do that; in which case, there is some justification to be found for Deal etal's actions regardless of how you come down on the Eastman vs. Gray exposition.

For the heck of it, here is the (unpretty to me) picture as I receive it.

Congress wrote and the polity ratified the 14th amendment to address citizenship for children of freed slaves.

Apparently, Congress didn't think citizenship requirements through very well so the Supremes in 1898, dealing with a specific case in which they again wanted to protect a discriminated group, applied common law, arising out of the time when Kings were the sovereigns, rather than the Congressional record, to flesh out the meaning of the 14th .

This opinion, an application to a specific and narrow factual situation, has been generalized and applied as the law of the land, leading to current situations that strain sensibilities. For example:

• The law requires that babies born here are citizens and cannot be deported with their illegal natural parents, thus separating them from their parents in violation of all natural sensibility.
  
• Hamdi, al Qaeda fighter, acquires protection of citizenship because his Arab parents were here on a visit for a few days when he happened to be born, never to return again until removed from Gitmo. (In the days of sovereigns this might have been an advantage to the King who would probably have hanged him for treason on the spot, but now days it is advantage for the terrorist and would be an affront to the sensibilities of many, who recognize the role of volition, to execute him for treason.) Really, it seems just as crazy to me to grant citizenship to any tourist's baby.
  
• Illegals have children that become citizens AND many oppose a Guest Worker Program because of its citizenship implications in the context of the apparent Greater Mexico policy.

In summary, Eastman thinks Gray was wrong and would give Congress much greater latitude in setting naturalization policy. Even if Gray is judged right, Congress might be able to assume some more latitude by applying a more narrow interpretation of Gray (depending on the answer to my question above). Or else, if Congress has no latitude, and the policy is totally set by the SCOTUS, any change requires a much more specific constitutional amendment.

I also have a lingering question that I don't know how to frame. I believe I read one of you, gc or ts, referring to constitutional or plenary or ? powers of Congress to set naturalization powers and I wonder how whatever that may be might apply to the question above.

Thanks again to ts and gc for all the help in dissecting this issue.

Your children would have been eligible for citizenship even if born in Poland by operation of legislation extending citizenship to them, not the 14th Amendment.

Now, if you believe that the Wong case was wrongly decided, and Elk was rightly decided, I'd like to know why.  I find those cases to be extremely hard to judge which was right and wrong.

Furthermore, if you believe in originalist jurisprudence, then how is it that you could so easily toss out some seven hundred plus years of precedent in interpreting the meaning of the 14th Amendment, which no one yet has denied simply codifies the common law principles of the Anglo-American tradition, no matter what your policy preference?

-TS

Once again, my standard caveat (I'm no real expert) applies. :-)

The SCOTUS in Wong Kim Ark has certainly, as is its role, interpreted the Constitution. What institutional right does Congress have to interpret the Constitution and apply scope (narrow vs. broad) to the interpretations of the SCOTUS? Is there a bright line or is this a gray area in the separation of powers doctrine?

The answer, I think, depends upon what the SCOTUS is interpreting.  If it's the meaning of the Constitutional text itself, and the Court has not left room for Congress to clarify, then the game is over, except for the Nuclear Option (Constitutional Amendment).  In fact, this power of the Court underlies their entire judicial review power -- take this away, and you may as well not have a Judiciary.

In this case, however, I'm not 100% convinced that the Court has spoken so clearly.  In some part, it's because of the "permitted to reside" dictum I mentioned above.  In some part, it's because of the term "jurisdiction".  The Wong Court read that to mean 'jurisdiction' as per common law, i.e., power/dominion/protection/legiality.  But since that term does in fact speak about the power of the Sovereign, it suggests to me that the Sovereign might be able to expand or contract it as it so desires.

Thing is, if we allow that Congress has the power to modify and alter the meaning of 'jurisdiction' by simple legislation, then we run afoul of the problem that it could seriously eviscerate the 14th Amendment altogether just by changing the meaning of 'jurisdiction'.  Congress might say "We disclaim 'jurisdiction' for Poles" for example, just to deprive children of Polish people of citizenship.  The argument that Gamecock and others have made that Congress could certainly expand meaning of 'jurisdiction' but not contract it, to me, goes to the heart of this problem.

The sort of purist approach would be to say Congress doesn't have the institutional authority to change the meaning of Constitutional text by simple legislation, and that it has to go through the Amendment process.  That's simple, easy to understand, and principled in a way.  On the other hand, if the 14th is simply a codification of the common law, and the common law puts the power of 'allegiance' in the hands of the sovereign and not the subject/citizen... and the common law never had to deal with illegal immigrants... well, that provides some wiggle room there.

Like I said, this is a tough one.

The thing that bothers me is thinking through the consequences of taking either the Eastman position or one I've described where 'jurisdiction' is a function of the power of the sovereign, and therefore, Congress can withdraw its 'protection' from illegal immigrants.

Either way, I think our legal tradition then implies that illegal immigrants (and anyone else who are not under the 'protection/power/allegiance' of the U.S.) have the same legal status as foreign ambassadors or conquering armies.  They are, then, outside of our legal system altogether.  That bothers me, and makes me think the cure is worse than the disease.  But then again, I might simply be wrong, and we could in fact create a quasi-jurisdiction where illegals can be prosecuted for murder under American law, while at the same time they are not under the 'protection/power/allegiance' of the U.S....  Troubling though.

-TS

consideration of the two cases:

"For one thing, the Supreme Court's interpretation of the Fourteenth Amendment's citizenship clause in Won Kim Ark renders the "subject to the jurisdiction" provision of the clause completely redundant. For another, it is completely at odds with the provision of the 1866 Civil Rights Act the 14th Amendment was designed to constitutionalize. That clause provided: "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." Debate on the floor of the Senate about the 14th Amendment confirmed this view: Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, stated that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction; "[n]ot owing allegiance to anybody else." Indeed, the first two cases in which the Supreme Court addressed the issue, first in dicta in The Slaughter-House Cases, and then as a holding in Elk v. Wilkins, recognized the Trumbull view of the clause.

The majority opinion in Slaughter-House correctly noted that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the Clause was designed to ensure that all persons born in the United States were as a result citizens both of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.

What was dicta in Slaughter-House became holding in Elk, whether the Court held that the claimant was not a U.S. citizen despite having been born on U.S. soil because the clause "subject to the jurisdiction" of the United States required that he be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." The children of temporary workers (much less illegal immigrant workers) simply do not qualify as "completely subject" to U.S. jurisdiction, for they are also subject to the jurisdiction of (indeed, owe primary allegiance to) their home country."

English Common Law can be a useful source for interpreting the law when there is a lack of clarity. However, we know full well what the Congress was attempting to do with the 14th Amendment. If the intent of the legislators violates the prinicples of English Common Law, then so be it. Laws change. The fact is, however, that the Ark Case completely ignored the intent of the Congress in drafting the 14th Amendment and extended citizenship to an entire class of people who were never meant to be covered. That is judicial activism of the rankest sort.

Look, there are a lot of mis- or under-educated people in the world. You're one of them. There's nothing I can directly do about that. Telling yourself otherwise is fine if it suits you.

However, if you really are a Republican, and interested in legal issues, you need to actually read on the subject. I think Bork's presentation is the best but read Scalia's book if you like him better.

It's immaterial if I'm worth your time, whatever that may be worth. Scalia and Bork should be.

Both of you.

Well, you are simply not going to get your way, because courts interpret. That's what they do. Marbury v. Madison is the law of the land, like it or not-- and it obviously wasn't too horrible, because the Founders were mostly alive when it was decided and did not move to amend the Constitution.

It's not that the 14th Amendment doesn't "have meaning." Quite the contrary. It's just that the meaning cannot be understood via the text alone. There is not a judge in US history that believes it can be. Your position literally does not exist-- there is no such thing as "textualism."

Bork and Scalia and Thomas do not rely on their "opinions," or at least they try very hard not to. They rely on a process of determining the original understanding/intent/meaning of the law in question. They then derive the principle(s) behind that intent and apply them to the case in question.

You cannot have a judiciary without derivation of principle. So you can advocate for the abolishment of the Supreme Court and all appellate courts, but that's your only option.

In the real world, the 14th Amendment was backed by a principle that people working legally in the US for many years, should they have a child, will give birth to an American citizen. Actually it was probably more narrow than that, but I present the most liberal interpretation.

A Mexican woman that crosses the US border and has a child 5 minutes later has not met any of the conditions citizenship is based upon. As such, the writers of the 14th Amendment clearly had no intention nor desire to grant citizenship in such cases.

Acting contrary to that-- granting citizenship to those clearly undeserving by the standards of the 14th Amendment-- is to directly contradict the legislature and, more broadly, the democratic process.

Really, this is not complicated. No one with a rudimentary understanding of legal theory would advance the arguments the pro-illegal immigrant citizenship crowd is here.

First off, I think you are rather too blithe in assuming that quotes from Trumbull and others constitute knowing full well what the Congress was attempting to do with the 14th Amendment.  Congressional floor debates are one of the least probative sources of meaning in statutory interpretation.  Justice Scalia, someone most would consider an Originalist, actually rejects using them at all:

As a textualist, Justice Scalia totally rejects reliance on legislative history or legislative intent.[32] He invariably criticizes his colleagues for turning to committee reports, or even floor debates, to ascertain what a law means. His extensive "inside the beltway" experience has made him savvy to how often congressmen will withdraw actual amendments to bills under consideration in the House because they are told by the floor leaders of the bill that they will take care of the congressmen's concerns through the drafting of the legislative history.

So there is that debate which could be interesting.  At a minimum, I would say that it isn't exactly clear that the Wong court "completely ignored the intent of Congress".

But, secondly, and I think from a policy standpoint, more interestingly, what you are proposing then goes far beyond eliminating birthright citizenship from illegal immigrants.  One source for one of the strongest arguments for getting rid of it is from the Heritage Foundation:

The argument of the Declaration grounded citizenship in consent. The natural law argument of the Declaration was a repudiation of the notion of birthright citizenship that had been the basis of British citizenship (i.e., being a British "subject") ever since it was first articulated in Calvin's Case in 1608.

....

In Elk v. Wilkins (1884), the Supreme Court decided that a native Indian who had renounced allegiance to his tribe did not become "subject to the jurisdiction" of the United States by virtue of the renunciation....

....

In 1898, the Supreme Court in United States v. Wong Kim Ark declared that the Fourteenth Amendment adopted the common-law definition of birthright citizenship. Chief Justice Melville W. Fuller's dissenting opinion, however, argued that birthright citizenship had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment. Nonetheless, the decision conferred birthright citizenship on a child of legal residents of the United States. Although the language of the majority opinion in Wong Kim Ark is certainly broad enough to include the children born in the United States of illegal as well as legal immigrants, there is no case in which the Supreme Court has explicitly held that this is the unambiguous command of the Fourteenth Amendment.

So then, we come to the crux of the matter.  If the dissent of CJ Fuller in the Wong case is correct, and the Constitution has specifically rejected the English common law tradition, rooted in feudal system, in exchange for a citizenship-by-consent system, then the current law of the land is indeed wrong and should be overturned.

Once that is done, however, note that the effect is not only to children of illegal immigrants, but to the children of legal immigrants; for that matter, under the contractarian theory being espoused here, all birthright citizenship is at risk.  All it takes is for Congress to declare that you are no longer under the jurisdiction of the United States, and voila, your native-born children, and their children, and their children, and so on have to be naturalized.

In addition, if you do espouse the contractarian view of citizenship, then jurisdiction isn't simply a birthright matter; it is also truly a legal jurisdiction matter as well.  It strikes me as unreasonable to deny citizenship to someone because of a supposed lack of consent, but then to enforce our laws upon them; if they or the U.S. didn't consent to the jurisdiction, such that their native-born children are denied citizenship, then any imposition of our laws upon them seems unjust.

Finally, from a political standpoint, if the above is really what is being argued, then I personally believe it will be disastrous for the party that advocates this viewpoint.  It's one thing to argue that the laws against illegal immigration should be enforced, and that we need border security; it's quite another to argue that the American born children of legal immigrants, who may have been here for years and years, should no longer be considered native-born citizens, and need to be naturalized (with what all that entails).

-TS

Well I tend to reject the purist's approach because the reason for adding "subject to the jurisdiction thereof" appears not to be at all self-evident, thanks to all the discussion of Gray and Eastman. Since Gray, whether its Eastman or John Doe, apparently no one gets to just read the 14th and authoritatively conclude on that basis just what it means.

The worries about Congress run amok could equally be applied to the Court run amok (i.e. fears that they might interpret the Constitution and statutes any way they dang well please and completely contrary to the polity and other branches). So I've got to set the cynicism aside and at least try to trust that both of their efforts are in good faith. That's why we vote anyway. And the power of my vote is good reason for not putting all my faith in the courts as the savior of sanity.

If Congress applies either the Eastman or the sovereign approach, I personally don't see how it follows they have to give up the power to enforce laws, as consent of the law breaker is not really required. Don't we extradite foreigners to be tried for crimes committed against our citizens? And either way, one can still identify the two types of jurisdiction Eastman discusses.

The other contingencies mentioned so far seem to me solvable easily enough in a fair, sensible and theoretically way.

I personally favor Eastman over Gray because our common sense is rooted in democratic principles where the consent of the governed is fundamental. The common law tradition developed under a sovereign resulted in that different kind of 'allegiance', not volitional but commanded, that you mentioned above. And that seems to me to be an archaic and anachronistic interpretation of allegiance as applied to the 14th.

In conclusion, since it seems to be such a 'tough' call, perhaps it would be better for the Congress or the Executive to set a policy that would test Gray's interpretation of the 14th. Then the Courts could get a fresh chance to review Gray in light of Eastman and other thoughts about the appropriateness of the common law tradition that the former court relied on. In respect for your concerns about Congress run amok, you/we could then look to a modern court's interpretation, one perhaps with a view of the unforeseen results consequent Gray.

That's where I seem to land after all this, but I'll be sponging up whatever I can from such thoughtful analysis as you and gc have provided. Thanks again.

Third Paragraph should be:... "theoretically legal way."

more I learn. :)  Thank you, and the others, for that.  Even in disagreement, civil dialogue can illuminate things.

I think where I am landing is that I wouldn't mind some set of developments where the Supreme Court could take another look at the holding of Wong case.  Maybe some citizen-child of illegal immigrants need to sue for something or another.

I still tend to side with the Wong court, but it's a very, very shaky thing at best.  The argument that CJ Fuller makes in his dissent is powerful as well: that we rejected the feudal system in the American Revolution, in favor of a social compact system.

What I remain convinced of, however, is that a political party actively campaigning for an overturning of Wong, or legislative action to narrow it or the wriggle through whatever small window left open by it, will damage itself pretty dramatically.  That's because the Wong case is the basis upon which children of legal immigrants received birthright citizenship -- and hence, Colin Powell can run for President.  (Note that naturalized citizens cannot.)

Whatever support the GOP would pick up from the more... uh... 'nativist' (for lack of a better word) elements of the electorate, I believe, would be erased and then some from the backlash from legal immigrants and their children who might oppose illegal immigration (as I do) but strongly support legal immigration (as I do), and would consider changes in the legal regime that makes their American-born children suddenly aliens subject to naturalization (e.g., my son).  Talk about undermining the American Dream....

-TS

That Clarence Thomas would be considered an 'originalist.' Look to the decision on medical marijuana. Thomas delved into historical documents to determine that the commerce clause does not extend to the Federal government proscribing the use of medical marijuana. To do this, he researched what the founding fathers understood 'commerce' to mean. He voted to uphold the state statute against federal meddling, despite almost a century of jurisprudence that has blown the commerce clause up into a 'catch all' for any federal regulation.

Scalia was content to follow precedent in the matter. Given a choice between the two, I much prefer the Thomas method of original intent to the Scalia textualist process. Scalia's method is just a thinly disguised method of applying a 'living Constitution,' as words and phrases change over time. Applying modern definitions to 100 or 200 year old texts leads to errors. Remember the phrase 'a well-regulated militia'? That meant, in the original text, a well-supplied militia. Look at the mischief, however, that has been wrought by using a 'plain text' method. This has led many to believe, wrongly, that the amendment was aimed at securing the rights of the National Guard.

Scalia's methods are simply flawed in certain cases, this would be one of thim. Simply because a case was wrongly decided at some point in the past, should not mean that we are stuck with it forever.

Your concerns are valid, but easily addressed. Citizenship, once conferred, is difficult to remove. Any change in Congressional law would not be retroactive, therefore, awarded citizenship would continue to be recognized, subject to certain limitations. If you are currently outside the U.S., have never resided in the U.S., etc. - then should you retain your citizenship? No, IMHO.

Whoever is within the boundaries of the United States, whether as a tourist or immigrant, is subject to the laws of the United States for the duration of their stay here. The citizenship of a person has no bearing on that. When traveling in Poland I am subject to Polish law, but I remain a citizen of the United States.

Citizenship is a conference of certain rights, not the least of which is the right to vote, hold political office, and live in the United States in perpetuity. It is not the same thing as having to obey laws when physically present in the U.S.

I don't see this as a losing issue for the Republicans at all. I see this is a major potential victory. Americans of all ethnicities are fed up with immigration, and the 'anchor baby' issue is especially egregious.

We should be able to craft a legislative response to the current situation that safeguards the rights of legitimate citizens, while excluding from citizenship the classes of people about whom we have been discussing. Of course the process could be opened to abuse, which is all the more reason to make sure Congress does it right the first time.

Perhaps the best is a test case over a type of circumstance such as you mention.

If a political party did do the thing, I expect certain things from them, in terms of my own sensibilites, which I don't know  whether to call nativist or not.

• Grandfather everyone born under the assumptions of the former legal regime.
  
• Continue the law to encompass birthright citizenship, in circumstances like Kim Wong Ark, for children of permanent legal unnaturalized residents.
  
• I don't see why temporary visitor's children should be citizens. (hamdi)
  
• Nor illegal's children. (no separating kids from deported parents)
  
• Legal non-permanent residence is where it gets more complicated. Many are lobbying against a Guest Worker Program because of a feared impact of child citizens, so, ironically, perhaps it would actually be better for immigrants if citizenship doesn't extend to temporary workers who aren't actually settling here. But I would certainly expect that anyone born and raised to adulthood here should be a citizen and in any case would qualify under Eastman's use of the term once becoming an adult who has never effectively expressed allegiance to a foreign power or as a child who is legally transferred to the custody of an American citizen, or as a minor child of a naturalized citizen, maybe even applicant.

That's the kind of approach I would vote for and I'd lean toward adjustments that were favorable to legal immigrants seeking to permanently settle here, legally.

Given a choice between the two, I much prefer the Thomas method of original intent to the Scalia textualist process.

They are both good but I prefer Thomas's approach and I don't think he has wrote or voted for a decision yet that I don't agree with.

approach.

I wish all the non-experts in life were as expert as The Sophist!! and I'm sure you agree.

I would suggest that on that last catagory that a child born to non-permanent resident would become a citizen if a parent is naturalized before they attain the age of 18. That may be the law now with respect to children not born here to the naturalized.

I too worry about the guest worker program but also think we need  to try it at least to try and get the millions here under control.

if its possible

one intersting factoid re court prospects

stevens joined scalia in disassociating with oconnors hamdi statement that he was citizen

they said presumed citizen to make a point

originalist vs textualist, which in most cases makes no difference anyway.  Thomas, who I agree with, followed the Bork approach which would never or hardly ever follow stare decisis on a wrong constitutional interpretation. Statutes that are wrongfully interpretated can be easily changed by congress but the constitution cannot. I agree with your analysis re citizenship in this regard.

The courts will never change unless the Constitution is amended to sharply reduce their power.

I also agree that the children of Illegals do not deserve instant citizenship - although I never argued that they did.

My argument is entirely about "interpretation" of the Constitution and the dangers thereof. For instance, when our country was new - we did not intend to have a standing army. The legislature was given the power (originally) to raise money for armies but only for a period not to exceed two years.

What we had outside of a standing army was a militia. Now, some have argued that the preamble to the second amendment:

"A well regulated Militia, being necessary to the security of a free State"

means that only the militia has the right to keep and bear arms. Those same people argue that the states no longer have militia - therefore people know longer have the right to keep and bear arms. Or you can argue that the National Guard is the "militia" of today - in which case only the Guard should keep and bear arms.

I, on the other hand, read the full amendment:

"the right of the people to keep and bear Arms, shall not be infringed." and note that it is the "people" and not the "militia" that are the persons with the right to keep and bear arms.

So far the SCOTUS has agreed with my view (generally), but 20 or 30 years from now when the composition of the court is different - will they feel the same? If I don't like their opinion, will I get to vote them off the court? It seems to me that we have nearly traded the tyranny of King George III for the tyranny of 9 people in black robes.

I think this should bother you. If it doesn't, it's not my affair, but it should.

The congress is no better. The vast majority of the things they legislate are outside their Constitutional authority. This is a topic for another post, but our apathy has allowed the government to become everything the founders hoped to prevent.

The courts were meant to interpret the law. Unfortunately in Marbury vs. Madison they failed to do that and went with option 3 - deny the constitutionality of the law.

http://www.jmu.edu/madison/center/main_pages/madison_archives/era/judicial/
bkgrnd.htm

I do fault the founders for not quashing this when they had the chance; now unfortunately it is too late.

Yes I agree and second your respect for theSophist. I am improved by the learning that he has patiently and respectfully imparted to me and I say that with a strong feeling of gratitude.

My views are broadened and moderated with a recognition of the need to respect and honor the immigrants who wish to join us who are so priviliged to be born into the American Dream.

On the GW program, I tend to think it is pragmatically necessary along with some of the other reforms. Employers want these workers and these workers want the jobs. That is a strong and worthy combination. I find some here so adamantly opposed to it in principle, dubbing it amnesty, but I have found none yet that will argue against it in the considered manner that we have observed here. My hunch is that the argument for the GWP would be strengthened if the citizenship issue was not in the opponent's list of complaints. And from the guest worker's point of view, the naturalization route is the proper one anyway, if they want to settle here. We digress...

I am disgusted with much of the Supreme Court's body of work, likewise that of Congress. But that is not the issue here. Of course interpretation can lead to dangerous outcomes-- it has, and it has done so very often. Furman, Roe, name your case... one disaster after another has come down from the robed ones.

However, you misunderstand why those decisions were written. The judges that have most compromised the Constitution did so by disregarding the will of lawmakers in favor of a twisted sort of natural law. They conjured up some bizarre moral imperative that allows them to create their own laws from their own moral views.

When a judge is faithful to the lawmaker, there is little to fear except democracy, which has its own flaws. I assume democracy is the higher goal you trumpet, along with the ideals that usually follow. A properly restrained judge IS an investigator, a historian, a philosopher. The key is that the decision is not based on their own principles but those they find through reasoned, honest study.

Humans are imperfect so the results will be imperfect even if the authors of a decision are Borks and Scalias. They will, however, be reasonable and true to the lawmaker.

Indeed, the limits of the court were my entire reason for posting on this thread. The Congress can legislate on the precise application of citizenship without the courts' approval. Surely if Congress succeeded in passing Deal's rather needed legislation some court would strike it down, possibly even the Supreme Court, but in doing so they would be overstepping their bounds.

conversations here be respectful, but I don't apologize for my mild reaction to repeated childish insults and for the unwarranted and snarky insinuation that I wasn't a "real" Republican or that I was "15".

your reply the other day with n/t cracked me up. My wife kept asking me all day long what I was smiling silently about?

She always thinks I'm laughing at her.

I cant tell her because she would never "get" what I am really laughing about. There's already so much she doesnt get.

"The 'Cocks shall rise again!"

That would be my pitch for an ED drug spot featuring the old ball coach.

re: atlantic trip: I cant answer. I was mainly making a joke, which I see now fell flat.

"Exploited" meaning their work product leads to the enrichment of capitalist owners. Not meant as a bogy man.

Of course my definition includes the "exploited" nameless .220 hitting utility man making "only" $2.35 mill per year and Alex Rodriguez at $26 mill as well.

So workers at all levels of income, immigrant or not, are exploited.

In the future, the players will own the teams themselves. They already have enough money. Then the meaning of the term "exploited" will be more hotly debatable than today.

The future of capitalism: smaller and smaller enterprises, more highly specialized, owned by the workers/partners. Privately held.

I am speaking as a capitalist who views the changing world like Marx, who viewed social history as a large scale struggle between opposing forces.

Not just economic classes, but nations, ideologies, religions, empires, technologies, politics, business philosophies, business opportunities, ideas.

Races. Behold the declining numbers of white people on the planet and the increasing number of younger, highly educated, highly motivated hard working people of darker skins living within formerly mostly white nations. That the ideals so desperately grasped by today's version of conservatives are largely grounded in white anglo saxon protestantness is the heart of the matter for conservatism, isnt it? We cling most desperately to that which we see is slipping away.

The world is changing radically during our time. Economically, technologically, geopolitically, even racially, we can see it shifting right before our eyes.

And I have the benefit of historical hindsight to correct Marx's flawed prediction of the overthrow of capitalism. Doesnt invalidate him completely though.

Only idiots ignore truth just because it comes in a sticky wrapper.

And it's been a pleasant discussion. In today's world, with today's courts - I'll take all the Scalias and Borks I can find.

...but intriguingly, you're close to right about the future of capitalist enterprises.

You're wrong about exploitation. The "workers" already own the largest public companies. The decisions of large enterprises (in America anyway) are determined largely by the desires of their primary owner-representatives. There are something in the neighborhood of 10,000 of these major institutional portfolio managers and hedgies. Their primary goal in life is to beat their competitors' quarterly numbers by just enough to stay in the game. As a result, they force the managers of large enterprises to plan for the short term rather than the long term. Additionally, they make it exceedingly hard for enterprises to transform their businesses with changing conditions, preferring to break failures up and move the productive assets into other hands.

So on whose behalf do these large portfolio managers operate? Yours and mine. Their job is to match long-term returns to long-term liabilities. What does that mean in practice? It means they need to reliably pay out the pension and annuity checks every month. So the needs of ordinary people, in Wall Street's ruthlessly efficient way, are already determining the course by which big businesses are run.

This is such a bad way to run a big business that alternative approaches are already succeeding against us. (China is a prime example, notwithstanding the extraordinarily inefficient way they use capital.)

A variety of new things are appearing on the scene (most of them technology-driven, but there are other factors as well) that will conspire to attenuate the built-in advantages of large enterprises, and enable the kind of small-producer business landscape that you briefly mentioned. This is already happening rapidly in America, so fast in fact that the government can't come even close to measuring it. That's why published economic statistics look merely quite good, but the anecdotally-observed economy is spectacularly great.

The key economic driver in a healthy, free society is the desire of young people to provide a better life for their families. The key economic resource in a post-industrial economy is the fact that every young person wakes up five days a week with 10 or 12 hours of time and a reserve of physical and mental energy to fill it up with and generate productive output. The coming, transformed economy will be extremely good at "exploiting" this resource efficiently.

now I can laugh too!

btw-you made some good points in response to my marxist-exploitation challenge and I look forward to discussing that issue in more detail later.