Trump Is Right About Birthright Citizenship and the 14th Amendment

[theprestige]

@mikegriffith1 - I don't think Trump is right about the 14th Amendment.

Honestly, I'm surprised the Supreme Court found the 14th didn't apply to Native Americans. The idea that someone can be in the US but not subject to the jurisdiction of the US seems absurd to me. The whole point of diplomatic immunity is that it makes an explicit exception to the principle of jurisdiction. Our entire claim of authority to arrest, try, convict, and sentence illegal immigrants, for crimes committed in our country, is based on this principle of jurisdiction over them. I think it's self evident that this principle, in application, satisfies the 14th Amendment.

But the Supreme Court ruled otherwise, when it comes to Native Americans. And I think that ruling supersedes a naive a priori reading of the 14th Amendment. I think that any argument that the 14th applies to illegal immigrants must address the Supreme Court's ruling as its very first order of business.

Broadly, if Native Americans owe their first allegiance to a different sovereign entity, then what can we say about illegal immigrants? They're still foreign nationals. And their entering the country illegally I think argues for a lack of allegiance to the US. I think it would be reasonable to argue that, based on the ruling, that the 14th does not apply to illegal immigrants, nor to foreign residents not seeking citizenship or asylum status.

And I think, following from that argument, that it would be a reasonable policy to extend birthright citizenship to residents and legal immigrants, not because the 14th requires it, but because I think overall it's a net good for the country and the people living here. By the same token, I think it would be a reasonable policy to deny birthright citizenship to illegal immigrants, not only because per the Court the 14th does not require it, but also because granting it creates a moral hazard.

In conclusion. I think the 14th amendment on its face grants birthright citizenship to illegal immigrants. I think anyone, including the current administration, who argues otherwise is wrong about the amendment. However, I think that the Supreme Court ruling on Native Americans gives constitutional cover to anyone who wants to argue against birthright citizenship for illegal immigrants.

 

[Regnad Kcin]

I like how for conservatives it’s iron-clad originalism for the 2nd amendment, but “The times they are a-changing” for the 14th amendment.

At least the naked fascism is also clownish. Takes the edge off a bit.

Got what you're saying, but of course modern conservatives are 180 degrees out of phase with 2A.

 

[The Great Zaganza]

Before anyone gets to explain why a part of the Constitution or a Law that has been around for other a Century has been falsely interpretated, they should first explain why everyone until this moment got it so wrong - after all, according to them, Trump could never have become President if they had had their way.

 

[JayUtah]

The Court in Bruen had no problem telling everyone including lower courts that they had been misapplying and misreading a previous decision for 75 years.

 

[ahhell]

@mikegriffith1 - I don't think Trump is right about the 14th Amendment.

Honestly, I'm surprised the Supreme Court found the 14th didn't apply to Native Americans. The idea that someone can be in the US but not subject to the jurisdiction of the US seems absurd to me. The whole point of diplomatic immunity is that it makes an explicit exception to the principle of jurisdiction. Our entire claim of authority to arrest, try, convict, and sentence illegal immigrants, for crimes committed in our country, is based on this principle of jurisdiction over them. I think it's self evident that this principle, in application, satisfies the 14th Amendment.

But the Supreme Court ruled otherwise, when it comes to Native Americans. And I think that ruling supersedes a naive a priori reading of the 14th Amendment. I think that any argument that the 14th applies to illegal immigrants must address the Supreme Court's ruling as its very first order of business.

Broadly, if Native Americans owe their first allegiance to a different sovereign entity, then what can we say about illegal immigrants? They're still foreign nationals. And their entering the country illegally I think argues for a lack of allegiance to the US. I think it would be reasonable to argue that, based on the ruling, that the 14th does not apply to illegal immigrants, nor to foreign residents not seeking citizenship or asylum status.

And I think, following from that argument, that it would be a reasonable policy to extend birthright citizenship to residents and legal immigrants, not because the 14th requires it, but because I think overall it's a net good for the country and the people living here. By the same token, I think it would be a reasonable policy to deny birthright citizenship to illegal immigrants, not only because per the Court the 14th does not require it, but also because granting it creates a moral hazard.

In conclusion. I think the 14th amendment on its face grants birthright citizenship to illegal immigrants. I think anyone, including the current administration, who argues otherwise is wrong about the amendment. However, I think that the Supreme Court ruling on Native Americans gives constitutional cover to anyone who wants to argue against birthright citizenship for illegal immigrants.

The Native American thing was because had signed a bunch of treaties with Native American tribes and acknowledge that they weren't fully under US Jurisdiction. We still do today, to a lesser extent. So, I don't think we really need to worry about the exception for Native Americans.

 

[Norman Alexander]

The Native American thing was because had signed a bunch of treaties with Native American tribes and acknowledge that they weren't fully under US Jurisdiction. We still do today, to a lesser extent. So, I don't think we really need to worry about the exception for Native Americans.

Native Americans seem to be subject to US laws pretty much at the discretion of the local cops as they feel like it.

 

[Norman Alexander]

As I understand it, everyone on US soil is subject to US laws, regardless. As a tourist, I was not capable of claiming my non-US citizenship as an excuse from any transgression of US laws. As tourists, we are constantly warned this is the case in any country we visit. There are no exceptions, up to and including treason against the USA.

So immigrants to the USA, legal and "illegal", are subject to the same laws to the same extent. Unless specific exceptions have been written in.

 

[theprestige]

The Native American thing was because had signed a bunch of treaties with Native American tribes and acknowledge that they weren't fully under US Jurisdiction. We still do today, to a lesser extent. So, I don't think we really need to worry about the exception for Native Americans.

Yeah, that's the kind of argument that I think needs to be made, not just a naive appeal to the wording of the 14th.

 

[TellyKNeasuss]

As I understand it, everyone on US soil is subject to US laws, regardless. As a tourist, I was not capable of claiming my non-US citizenship as an excuse from any transgression of US laws. As tourists, we are constantly warned this is the case in any country we visit. There are no exceptions, up to and including treason against the USA.

So immigrants to the USA, legal and "illegal", are subject to the same laws to the same extent. Unless specific exceptions have been written in.

Foreign diplomats are not subject to US laws. The ambassador from Stanistan really could shoot.someone in broad daylight on 5th Street NW and not be prosecuted for it (unless the govt. of Stanistand decides to waive diplomatic immunity, though Stanistan could prosecute the ambassador in a Stanistan court under Stanistan laws).

 

[Andy_Ross]

Example in the UK, someone inside the Libyan Embassy shot a police officer through one of the windows.
The Police couldn't go in after the shooter and after a standoff the occupants of the Embassy were allowed to leave the country.

 

[mikegriffith1]

isn't it odd how many things the current batch of "Conservatives" realize have been done wrong by everyone since the start of the Union? Looks like the Founding Fathers were complete morons.

HUH??? Umm, heard of the Naturalization Act of 1790??? You're not seriously suggesting that the founding fathers ever even hinted that they would grant automatic citizenship to children whose parents had entered the country illegally, are you? You know, it took a while for the first generation of American leaders to establish immigration policy after our founding. We were, after all, a brand new country, and we had just fought a bloody five-year war to gain independence. Under the terms of the Naturalization Act of 1790, passed just two years after the Constitution was ratified, the vast majority of the illegal immigrants now in our country would not qualify for citizenship.

 

[The Great Zaganza]

It didn't pass in a vacuum - people knew what they meant, and it was used the way they meant it for centuries.

How much of a conceited douchebag do you have to be to think you know better than everyone who came before you?

 

[mumblethrax]

The citizenship clause of 14th amendment just codifies the principle of jus soli while eliminating the explicitly racist exceptions to that tradition. It's a constitutionalization of a similar clause in the Civil Rights Act of 1866.

The authors of the amendment knew that it would mean that the children of immigrants (there wasn't really such a thing as an illegal immigrant at the time--the Page Act was the first attempt by Congress to regulate immigration, and it wasn't passed until around a decade later) would be considered citizens. If they didn't want that to happen, they had a funny way of doing nothing to prevent it from happening...twice.

The law isn't being abused, manipulated, misrepresented, or subverted.

It's being followed.

The usual options are available if you don't like that. You even have the right to remain clueless.

 

[Norman Alexander]

Foreign diplomats are not subject to US laws. The ambassador from Stanistan really could shoot.someone in broad daylight on 5th Street NW and not be prosecuted for it (unless the govt. of Stanistand decides to waive diplomatic immunity, though Stanistan could prosecute the ambassador in a Stanistan court under Stanistan laws).

Do tourists and immigrants come to the USA on diplomatic visas? If not, why is this relevant?

 

[mikegriffith1]

The citizenship clause of 14th amendment just codifies the principle of jus soli while eliminating the explicitly racist exceptions to that tradition. It's a constitutionalization of a similar clause in the Civil Rights Act of 1866.

The authors of the amendment knew that it would mean that the children of immigrants . . . would be considered citizens. If they didn't want that to happen, they had a funny way of doing nothing to prevent it from happening...twice.

Did you even read the OP before posting this fiction? FYI, the authors of the amendment explained during the congressional debates that the amendment would not even grant citizenship to American Indians and their children born afterward. That's why American Indians did not get citizenship until Congress passed a law that granted it in 1924--back then everyone still knew what the 14th Amendment did and did not mean. Moreover, the first Supreme Court decisions on the amendment specified that the amendment did not even grant citizenship to newborns whose parents were foreign diplomats serving in the U.S.

The law isn't being abused, manipulated, misrepresented, or subverted.

It's being followed.

No, it is not. Not even U.S. v. Wong Kim Ark said that the 14th Amendment grants citizenship to children whose parents are in the U.S. illegally. That case involved the children of lawful permanent residents, not illegal immigrants.

The usual options are available if you don't like that. You even have the right to remain clueless.

Your response is what is clueless. Did you even read the OP? You didn't address a single fact documented in the OP. Here's an idea: before you post clueless responses, why don't you read the OP and at least one of the articles linked in the OP? That's called critical thinking, which teaches us to read both sides of an issue before forming an opinion on it.

Perhaps we should see this issue from the vantage point of the millions--literally millions--of families who are currently waiting in the legal immigration line, families who have played by the rules, who have filed the required paperwork and fees, and who are waiting to lawfully enter the country. It is manifestly unfair to them to allow people who have violated our immigration laws to remain here. How do you think those families feel when they see that illegal immigrants are receiving free education, welfare benefits, and even driver's licenses? How is that fair to those who are playing by the rules and honoring our immigration laws?

I mean, if we want to talk about fairness and compassion, how about some fairness and compassion for the millions of people who are honoring our immigration laws and trying to enter the U.S. legally? They want the American dream for their kids too. They want a better life too. And they are playing by the rules and obeying the law. But, nah, some of you folks want to let illegal immigrants jump to the front of the line in the name of fairness and compassion. That's very unfair and uncompassionate to the millions of people who are following the law and trying to legally gain the American dream.

 

[Dave Rogers]

I like the use of the word 'even' to suggest that two very specific situations that have been explained in great detail nevertheless imply the existence of a wide range of completely different and totally unrelated exceptions. Nice disinformation strategy there.

Dave

 

[Norman Alexander]

I mean, if we want to talk about fairness and compassion, how about some fairness and compassion for the millions of people who are honoring our immigration laws and trying to enter the U.S. legally? They want the American dream for their kids too. They want a better life too. And they are playing by the rules and obeying the law.

You do know that people who arrive at your borders and claim asylum are honoring your immigration laws. Just because it takes the USA many years to process some of those claims does not make them "illegal" meanwhile. And we have been over many times already that crossing the border without passing through a control is a MISDEMEANOR, not a crime. I'm going to allow you know the difference.

But, nah, some of you folks want to let illegal immigrants jump to the front of the line in the name of fairness and compassion. That's very unfair and uncompassionate to the millions of people who are following the law and trying to legally gain the American dream.

There's no "line", no queue, for any immigrants to wait in, reaching around the border for miles and miles in your imagination. Immigration is never first-come first-served like an ATM queue. Some immigration applicants can get an almost immediate decision on their applications (and it may be "No"). Others take years, and there's all the variants in between. This "jumping the line" nonsense is just some ultra-simplistic view of how MAGA would like to think immigration works, because that helps prop up their racist notions of "brown people getting preferential treatment". I can't believe this stupid misconception is being perpetuated still.

Also, if it helps you sleep better, it's the same situation in most other countries where people seek to immigrate.

 

[sackett]

Damn, this is scary. My parents never got a birth certificate when I was born (WW2 was on, there were a lot of shortages, and it was Cheyenne), only a sort of receipt for one (1) baby. Mucho years later, I tried to apply for a US passport and discovered that I couldn't prove that I had ever been born!

Eventually, the state of Wyoming found my certif in an old file box somewhere and sent me a copy of it, so I could get my passport. But I hope to hell I can locate it in my ill-kept records if, in these newly patriotic times, I'm required to prove all over again that I'm a natural-born human person.

Good thing I've got blood in the face, eh patriotics? Right? Huh?

 

[Darat]

Damn, this is scary. My parents never got a birth certificate when I was born (WW2 was on, there were a lot of shortages, and it was Cheyenne), only a sort of receipt for one (1) baby. Mucho years later, I tried to apply for a US passport and discovered that I couldn't prove that I had ever been born!

Eventually, the state of Wyoming found my certif in an old file box somewhere and sent me a copy of it, so I could get my passport. But I hope to hell I can locate it in my ill-kept records if, in these newly patriotic times, I'm required to
prove all over again that I'm a natural-born human person.
Good thing I've got blood in the face, eh patriotics? Right? Huh?

You can use this handy new test that will soon be handed out to all federal employees:

 

[Random]

Damn, this is scary. My parents never got a birth certificate when I was born (WW2 was on, there were a lot of shortages, and it was Cheyenne), only a sort of receipt for one (1) baby. Mucho years later, I tried to apply for a US passport and discovered that I couldn't prove that I had ever been born!

Eventually, the state of Wyoming found my certif in an old file box somewhere and sent me a copy of it, so I could get my passport. But I hope to hell I can locate it in my ill-kept records if, in these newly patriotic times, I'm required to prove all over again that I'm a natural-born human person.

Good thing I've got blood in the face, eh patriotics? Right? Huh?

Sounds like fun. Now imagine having to prove that your parents and grandparents were US citizens...