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If the drafters of the 14th Amendment wished to limit its applicability solely to freed slaves and their descendants, they would written so.
No. Just like a true originalist interpretation of the 14th Amendment's equal protection clause doesn't support an expanded requirement to recognize same sex marriages, a true originalist interpretation of the birthright citizenship clause doesn't support citizenship to children born to illegal immigrants. At least there is a strong argument to support such an interpretation.
This blog post provides some key context to the clause:
Senator Jacob Howard, who authored the citizenship clause, made clear his intent when he said:
“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
There is also case law that supports the ultimate conclusion that I advocate (touched on in the post, too).
Note, going back to your other point, pre-13th Amendment, the Constitution clearly sanctioned slavery, even though it didn't explicitly do so. To understand what certain text of the document means, originalists will look to the common meaning and intent of framers when interpreting law. As I mentioned earlier, and as supported by blog post I supplied, there is a strong, originalist argument to be made that the birthright citizenship clause should not be used to grant citizenship to the children of illegal immigrants. And, note, the first article you cite to (the article from the Atlantic I won't even touch on as its written by someone who is not an originalist/doesn't seem to even seriously study the concept and who is looking at things from a flawed position) largely takes issue with the "subject to the jurisdiction" argument. But an originalist hardly needs that argument to come to the conclusion that the clause does not mandate citizenship to the children of illegal immigrants. Indeed, the intent/rationale for the clause itself is all that is needed to support the position I advocate, though there is even a strong argument (supported by earlier Supreme Court case law with regard to Indian tribes before Congress passed legislation making all members of Indian tribes US citizens) that children of illegal immigrants shouldn't be granted citizenship by birth based on an honest reading of that clause, too.
Last edited by prospectheightsresident; 05-08-2017 at 12:29 AM..
This needs to happen to have a decision once and for all. Any anchors born to illegals will not be american citizens, but they will be citizens of their illegal parents' home country
Yup, I agree with this. We can't do anything about the anchors already born here, but we can take away this carrot for the future.
No. Just like a true originalist interpretation of the 14th Amendment's equal protection clause doesn't support an expanded requirement to recognize same sex marriages, a true originalist interpretation of the birthright citizenship clause doesn't support citizenship to children born to illegal immigrants. At least there is a strong argument to support such an interpretation.
This blog post provides some key context to the clause:
There is also case law that supports the ultimate conclusion that I advocate (touched on in the post, too).
Note, going back to your other point, pre-13th Amendment, the Constitution clearly sanctioned slavery, even though it didn't explicitly do so. To understand what certain text of the document means, originalists will look to the common meaning and intent of framers when interpreting law. As I mentioned earlier, and as supported by blog post I supplied, there is a strong, originalist argument to be made that the birthright citizenship clause should not be used to grant citizenship to the children of illegal immigrants. And, note, the first article you cite to (the article from the Atlantic I won't even touch on as its written by someone who is not an originalist/doesn't seem to even seriously study the concept and who is looking at things from a flawed position) largely takes issue with the "subject to the jurisdiction" argument. But an originalist hardly needs that argument to come to the conclusion that the clause does not mandate citizenship to the children of illegal immigrants. Indeed, the intent/rationale for the clause itself is all that is needed to support the position I advocate, though there is even a strong argument (supported by earlier Supreme Court case law with regard to Indian tribes before Congress passed legislation making all members of Indian tribes US citizens) that children of illegal immigrants shouldn't be granted citizenship by birth based on an honest reading of that clause, too.
It appears that what you (and the author in that blog that you linked to) consider to be "originalism" is "original intent" -- a theory that's barely in the originalist family. Some folks consider "original intent" so distinct from originalism that they refer to it as "intentionalism." The primary and dominant theory of originalism today is "original meaning" as popularized by the late Antonin Scalia. In an essay entitled, "Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation," Scalia wrote:
I belong to a school, a small but hardy school, called "textualists," or "originalists." That school used to be "constitutional orthodoxy" in the United States. The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.
As I said, this view, until recently, was constitutional orthodoxy. Everyone at least said so. Everyone said that the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What the Constitution meant when it was adopted is what it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times. If the Constitution's meaning is inadequate, we can amend the document. That's why there's an amendment provision in the Constitution.
Thus, an originalist justice like Scalia would look at what the authors of the 14th Amendment wrote, not what they "intended."
I think the people who were born here are Americans under the law. It seems like many Americans want to see this law change for the future. Isn't the majority now Republicans? Why not contact your lawmakers and ask them to change the law?
Its not a matter of simply changing the law...its changing the Constitution which is no small feat.
This needs to happen to have a decision once and for all. Any anchors born to illegals will not be american citizens, but they will be citizens of their illegal parents' home country
Correct. This is the immigration policy of other countries as well. Anchors should not be granted U.S. citizenship automatically.
Also, the finest colleges and universities in the U.S. still deny enrollment of thousands of American born students, regardless of GPA, because of the schools policy and dedication to having a global diversity of its student body. There are tens of thousands of competent American students, denied entry simply because the schools have to consider foreign students, particularly those from the developing world first. These schools all receive federal funding as well. Years ago, there was a perception that foreign born students would go back to their country after graduating, and help advance their native country, however, this is not the reality. The vast majority of foreign students end up staying in the U.S. competing for American jobs. The U.S. has no shortage of competent American high school graduates with high GPA's more than capable of handling the course load at any of the finest colleges in the U.S.
Correct. This is the immigration policy of other countries as well. Anchors should not be granted U.S. citizenship automatically.
Also, the finest colleges and universities in the U.S. still deny enrollment of thousands of American born students, regardless of GPA, because of the schools policy and dedication to having a global diversity of its student body. There are tens of thousands of competent American students, denied entry simply because the schools have to consider foreign students, particularly those from the developing world first. These schools all receive federal funding as well. Years ago, there was a perception that foreign born students would go back to their country after graduating, and help advance their native country, however, this is not the reality. The vast majority of foreign students end up staying in the U.S. competing for American jobs. The U.S. has no shortage of competent American high school graduates with high GPA's more than capable of handling the course load at any of the finest colleges in the U.S.
They get more tuition money from foreigners, which is why they prefer them.
Considering that the "Citizenship Clause" of the 14th Amendment to the U.S. Constitution pretty much settled the issue, the Supreme Court will probably deny certiorari to any case that directly raises it. The reverent part of the 14th Amendment is as follows…
Amendment XIV, Section 1, Clause 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
There's actually plenty of legal precedent to strip illegal aliens' anchor babies of US citizenship. They were never meant to be US citizens. I've posted this before, but here it is again...
Quote:
Originally Posted by InformedConsent
Historical facts:
1) The 14th Amendment (ratified in 1868) and it's original intent:
Senator Trumbull: "The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof? Not owing allegiance to anybody else. That is what it means."
Children born in the U.S. to a foreign citizen parent whose country has jus sanguinis (right of blood) citizenship law were never supposed to be born U.S. citizens. They may choose to naturalize as a U.S. citizen at some point, but they were never intended to be U.S. citizens at birth. Only those ignorant of historical fact and the Congressional Record misinterpret the 14th Amendment to mean anything else.
2) Article XXV Section 1992 of the 1877 Revised Statutes, enacted 9 years after the 14th Amendment was ratified, which clarified exactly who are U.S. citizens at birth per the Constitution:
"All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States".
3) U.S. Secretaries of State determinations as to exactly who has birthright citizenship, after ratification of the 14th Amendment:
Secretary of State Frederick Frelinghuysen (1881-1885) determined Ludwig Hausding, though born in the U.S., was not born a U.S. citizen because he was subject to a foreign power at birth having been born to a Saxon subject alien father.
Similarly, Secretary of State Thomas Bayard (1885-1889) determined Richard Greisser, though born in Ohio, was not born a U.S. citizen because Greisser's father, too, was an alien, a German subject at the time of Greisser's birth. Bayard specifically stated that Greisser was at birth 'subject to a foreign power,' therefore not "subject to the jurisdiction of the United States" within the meaning of the Fourteenth Amendment.
4) In regards to illegal aliens' anchor babies... Their parents were NOT in the U.S. legally and therefore did NOT have a permanent domicile and residence in the U.S. as did Wong Kim Ark's, a fact on which SCOTUS based their determination that WKA was born a U.S. citizen:
Wong Kim Ark ruling:
"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
The parents must have a permanent domicile and residence in the U.S. WKA's parents were living in the U.S. legally. Illegal immigrants don't have a permanent domicile in the U.S. because they are in the country illegally. They aren't even supposed to be here at all. Furthermore, it is a federal offense to harbor an illegal alien in the U.S., or aid or abet in their harboring in the U.S. Illegal aliens' permanent domicile is in their home country; the country which would issue their passports were they to have one.
5) The Indian Citizenship Act of 1924 which had to be enacted because even when Native Americans were born in the U.S., they were not U.S. citizens. Why? Because they were subject to a foreign power (their respective sovereign US Indian Nations). Note that the 1924 date of this Act is significantly later than both the 14th Amendment and the Wong Kim Ark ruling.
And finally,
6) Read current US Nationality Law, specifically subsections (a) and (b). If everyone born in the US were actually automatically US citizens, subsection (b) would be redundant and would be neither included nor necessary:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
I realize that's a lot of historical and current legal information to digest. But sadly, our public education system is such a joke that very few people are aware of the history surrounding the 14 Amendment and how subsequent births to parents of various nationalities were treated in the U.S. up until "political policy" (neither the Constitution nor federal nationality law) very recently changed.
It appears that what you (and the author in that blog that you linked to) consider to be "originalism" is "original intent" -- a theory that's barely in the originalist family. Some folks consider "original intent" so distinct from originalism that they refer to it as "intentionalism." The primary and dominant theory of originalism today is "original meaning" as popularized by the late Antonin Scalia. In an essay entitled, "Judicial Adherence to the Text of Our Basic Law: A Theory of Constitutional Interpretation," Scalia wrote:
I belong to a school, a small but hardy school, called "textualists," or "originalists." That school used to be "constitutional orthodoxy" in the United States. The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.
As I said, this view, until recently, was constitutional orthodoxy. Everyone at least said so. Everyone said that the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What the Constitution meant when it was adopted is what it means today, and its meaning doesn't change just because we think that meaning is no longer adequate to our times. If the Constitution's meaning is inadequate, we can amend the document. That's why there's an amendment provision in the Constitution.
Thus, an originalist justice like Scalia would look at what the authors of the 14th Amendment wrote, not what they "intended."
Original intent is very much part of originalism. To get to this intent, originalists often look to the common understanding/meaning of a law/document/phrase/etc. when said law/document/phrase/etc. was drafted; this helps to show intent of framers of what law is supposed to mean/what law does mean. The rationale is that the framers knew that their words had a certain meaning/understanding among the general public when they drafted their documents, which helps to show what their intent was by using such language that would've been commonly understood. In the context of the civil war and question over the rights of freed slaves/other blacks post civil war, its a tough pill to swallow that the birthright citizenship clause was enacted to deal with anything but this issue (and the clause's drafter says as much).
That said, many disfavor a narrow attempt to determine what the original intent was because its often difficult to ascertain what the original intent was (and, indeed, there are often many different intents behind a piece of legislation). But when the original intent of a law/phrase/etc. is clear by way of the author of said law/phrase/etc., then it is especially helpful to understanding what the original meaning is.
Moving along, the original understanding of the birthright citizenship clause wouldn't even support birthright citizenship for children of illegal immigrants (as has been mentioned before, the original understanding was for the clause to guarantee freedom for blacks in this country). Just like the original understanding (as Justice Scalia, Justice Thomas, and others pointed out) of the equal protection clause did not intend a requirement that same sex marriage be made legal, despite an argument that can be made that, by the "text," such is required. The text is rarely in black and white. It often requires context, both historical context and context provided by intent.
Last edited by prospectheightsresident; 05-09-2017 at 12:31 PM..
There's actually plenty of legal precedent to strip illegal aliens' anchor babies of US citizenship. They were never meant to be US citizens. I've posted this before, but here it is again...
Despite all of the so-called "precedent" for eliminating birthright citizenship for the children of "unauthorized migrants," that "dog won't hunt" without another amendment to the U.S. Constitution. Period.
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