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Old 06-07-2010, 03:37 AM
 
349 posts, read 394,176 times
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It would be in conflict with the 14th Amendment.

Case law about birthright citizenship predates even the 14th. Murray v The Charming Betsey in 1804 implied that in the opinion 'Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely ofthat character..." persons born here are citizens.

There was much debate about the 14th Amendment and the phrase "and subject to the jurisdiction thereof" wasn't included in the original House version. Jacob Howard is credited for including "and subject to the jurisdiction thereof" to exclude children of ambassadors and diplomats as was customary in English common law. It also excluded American Indians who weren't granted birthright citizenship because they weren’t completely under US jurisdiction.

Clearly, the language could have been stated to include born of citizens only. They knew this meant the inclusion of children born to non-citizens Mr. HOWARD.
Quote:
“… 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.”
The meaning of the amendment wasn’t really debated. It was understood to include all born within the physical US boundaries with the exception of those outside the jurisdiction of US law. Debate centered on whether or not this was wise, but not it’s meaning. One opposed, and vote against the entire 14th Amendment was Sen. Cowan who said, in part,
Quote:
“is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese?”
Of course these questions predate the Chinese Exclusion Act, but show the seeds of discontent. A response was given by CA Senator John Conness,
Quote:
The proposition before us, I will say, Mr. President relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. … We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”
This followed the Civil Rights act of 1866 that guaranteed birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Some arguing on these boards confuse jurisdiction with allegiance. All within our borders, excepting those with diplomatic immunity are subject to US laws. It matters not if we like it or if we like the laws of some other country better. Senator Cowan, who opposed the Citizenship clause, said it would extend birthright citizenship to “people who … owe no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him.”

It is clear that the Senate understood the ramifications of the language. Again, they could have included language granting birthright citizenship to those born to citizens and chose not to do so.

I’ll briefly touch on some case law. We’re all pretty familiar with US v Wong Kim Ark that established citizenship to those born of aliens. It was long considered to mean all born within the US were citizens, but challenges came because although Kim Ark’s parents couldn’t be naturalized, they were here lawfully. That question was answered in Plyler v Doe a landmark case about providing education to children of those here unlawfully. The 5-4 decision holds that the 14th Amendments Equal Protection applies to “any person within its jurisdiction”. Although four Justices dissented on the question of public education, they ALL agreed that the 14th Amendment applies equally to all, even those that enter illegally, and come under jurisdiction of the state. Writing for the majority Justice Brennan wrote, “[N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”

That’s the state of case law now and a consistent precedent. Are there legal scholars that feel birthright citizenship rules could be changed by statute amending the INA? Yes, but they are very much in the minority. Further, any state law would run counter to Federal law and be struck down quickly. Bills like this have been proposed in Congress and go nowhere.

 
Old 06-07-2010, 06:29 AM
 
Location: Not where you ever lived
11,544 posts, read 25,086,443 times
Reputation: 6183
Stop*bickering! Read it and and weep: Constitutional Amendments - The U.S. Constitution Online - USConstitution.net
 
Old 06-07-2010, 07:16 AM
 
Location: SouthCentral Texas
3,855 posts, read 4,087,243 times
Reputation: 957
the Question is whether California can end Birth right citizenship...

Quote:
The Founders knew that the States had their own laws on how they defined citizens and how they naturalized aliens. United States v. Rhodes, 27 F.Cass. 785, 791 (1866). They also knew that these laws were not uniform. The Founders in Article I, Sec. 8, cl. 4 took away from the States the power to naturalize a person and gave it exlusively to Congress so that it could make uniform the laws of naturalization. The Founders also wanted a uniform definition of “citizen” and “natural born Citizen,” for how could they have wanted uniform laws regarding naturalization and not the same for citizenship. Further evidence that they wanted this uniformity may be found in Article IV, Sec. 2 which states: “The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States.” This clause shows that the Founders also wanted to take away from the States not only the power to naturalize but also the power to define citizenship, for “a person becoming a citizen in one State, would thereby become a citizen of another, perhaps even contrary to its laws, and the power thus exercised would operate beyond the limits of the State.” Gibbons v. Ogden, 22 U.S. 1, 36 (Wheat) (1824).
you can argue the 14th all you want, but US law already forbids Ca. from making its own "citizenship" laws.


A Place to Ask Questions to Get the Right Answers: 'The Law of Nations or Principles of Natural Law' as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is
 
Old 06-07-2010, 07:29 AM
 
14,307 posts, read 11,152,437 times
Reputation: 2130
Quote:
Originally Posted by mauiwowie View Post
It would be in conflict with the 14th Amendment.

Case law about birthright citizenship predates even the 14th. Murray v The Charming Betsey in 1804 implied that in the opinion 'Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely ofthat character..." persons born here are citizens.

There was much debate about the 14th Amendment and the phrase "and subject to the jurisdiction thereof" wasn't included in the original House version. Jacob Howard is credited for including "and subject to the jurisdiction thereof" to exclude children of ambassadors and diplomats as was customary in English common law. It also excluded American Indians who weren't granted birthright citizenship because they weren’t completely under US jurisdiction.

Clearly, the language could have been stated to include born of citizens only. They knew this meant the inclusion of children born to non-citizens Mr. HOWARD. The meaning of the amendment wasn’t really debated. It was understood to include all born within the physical US boundaries with the exception of those outside the jurisdiction of US law. Debate centered on whether or not this was wise, but not it’s meaning. One opposed, and vote against the entire 14th Amendment was Sen. Cowan who said, in part,Of course these questions predate the Chinese Exclusion Act, but show the seeds of discontent. A response was given by CA Senator John Conness, This followed the Civil Rights act of 1866 that guaranteed birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Some arguing on these boards confuse jurisdiction with allegiance. All within our borders, excepting those with diplomatic immunity are subject to US laws. It matters not if we like it or if we like the laws of some other country better. Senator Cowan, who opposed the Citizenship clause, said it would extend birthright citizenship to “people who … owe no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own …; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him.”

It is clear that the Senate understood the ramifications of the language. Again, they could have included language granting birthright citizenship to those born to citizens and chose not to do so.

I’ll briefly touch on some case law. We’re all pretty familiar with US v Wong Kim Ark that established citizenship to those born of aliens. It was long considered to mean all born within the US were citizens, but challenges came because although Kim Ark’s parents couldn’t be naturalized, they were here lawfully. That question was answered in Plyler v Doe a landmark case about providing education to children of those here unlawfully. The 5-4 decision holds that the 14th Amendments Equal Protection applies to “any person within its jurisdiction”. Although four Justices dissented on the question of public education, they ALL agreed that the 14th Amendment applies equally to all, even those that enter illegally, and come under jurisdiction of the state. Writing for the majority Justice Brennan wrote, “[N]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”

That’s the state of case law now and a consistent precedent. Are there legal scholars that feel birthright citizenship rules could be changed by statute amending the INA? Yes, but they are very much in the minority. Further, any state law would run counter to Federal law and be struck down quickly. Bills like this have been proposed in Congress and go nowhere.
I disagree with this summation and it is based on the language of this amendment. Yes, there have been bills drawn up to deny birthright citizenship to children of illegal aliens in the past that went nowhere but with illegal immigration being a hot topic today and even states taking measures to stop it now and considering the volume of illegal aliens in our country today compared to the past the time is ripe for such a bill to pass and it will.

If a viable poll were taken today on the pulse of the American public on this issue it would prove that the majority of Americans want the birthright citizenship clause changed.
 
Old 06-07-2010, 07:32 AM
 
Location: Littleton, CO
20,894 posts, read 13,116,646 times
Reputation: 3949
Quote:
Originally Posted by chicagonut View Post
If a viable poll were taken today on the pulse of the American public on this issue it would prove that the majority of Americans want the birthright citizenship clause changed.
Polls do not amend the Constitution.
 
Old 06-07-2010, 07:54 AM
 
14,307 posts, read 11,152,437 times
Reputation: 2130
Quote:
Originally Posted by Arus View Post
Just ask the Native Americans who have been forced out of their land, having it stolen from them who exactly really were the illegal immigrants to this land were.

You'll definitely get a very different answer from what you believe it to be.

Native Americans migrated across this land, however they stuck to this land; they didn't invade another country, portray those inhabitants as savages then fought and steal land from them.
Which Native Americans? They are all dead now. We have treaties with those native tribes that were indigenous to THIS country. The descendants of the tribes from south of our border have no case against the USA as they weren't indigenous to this country. The past is the past. Try living in the today where all countries have sovierign borders now. None of us alive today are responsible for the past. My ancestors didn't even come here until well after any native indian conflicts and yet you want to lump all of us from European ancestry and who are white into the same pot?
 
Old 06-07-2010, 08:03 AM
 
14,307 posts, read 11,152,437 times
Reputation: 2130
Quote:
Originally Posted by HistorianDude View Post
Polls do not amend the Constitution.
I didn't say it did! The poster I was replying to said that we are among the minority who want this changed and that the politicians therefore won't touch it. My reply was to take a poll and see where the true majority lays. Politiicans will always go with which way the wind is blowing.
 
Old 06-07-2010, 10:03 AM
 
Location: Littleton, CO
20,894 posts, read 13,116,646 times
Reputation: 3949
Quote:
Originally Posted by chicagonut View Post
I didn't say it did! The poster I was replying to said that we are among the minority who want this changed and that the politicians therefore won't touch it.
I just reread the post. I can't find anywhere he said that. Could you point it out to me?

Quote:
Originally Posted by chicagonut
My reply was to take a poll and see where the true majority lays. Politiicans will always go with which way the wind is blowing.
Not when you're talking about amending the Constitution. The Framers made sure of that.
 
Old 06-07-2010, 10:48 AM
 
14,307 posts, read 11,152,437 times
Reputation: 2130
Quote:
Originally Posted by HistorianDude View Post
I just reread the post. I can't find anywhere he said that. Could you point it out to me?


Not when you're talking about amending the Constitution. The Framers made sure of that.
I stand corrected the poster said "legal scholars" who want the 14th amended are in the minority. I also disagree with that. An amendment can be re-interpreted and re-written for clarity, are you kidding me?
 
Old 06-07-2010, 11:54 AM
 
Location: Littleton, CO
20,894 posts, read 13,116,646 times
Reputation: 3949
Quote:
Originally Posted by chicagonut View Post
I stand corrected the poster said "legal scholars" who want the 14th amended are in the minority.
Actually, no. He didn't say that either.

Go back and read it again.

Quote:
Originally Posted by chicagonut
I also disagree with that. An amendment can be re-interpreted and re-written for clarity, are you kidding me?
An Amendment cannot be rewritten without another Amendment. Not for clarity, not for any other reason.
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