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re: A very good article on the true meaning of the 14th Amendment
Posted on 1/24/25 at 8:33 am to NC_Tigah
Posted on 1/24/25 at 8:33 am to NC_Tigah
quote:United States v. Wong Kim Ark, 169 U.S. 649 (1898) discusses the issue of Indians at length. Like the Citizenship Clause of the 14th Amendment, the SCOTUS treats Indians as sui generis persons.
No. Undefined exclusion, or inconsistent inclusion, is obviously not reasonable basis for law.
In this instance, the Ark-based argument holds that anyone born on US soil, save offspring of diplomats or occupying enemies, are citizens.
Except that contention is simply not true.
The assertional flaw relates to treatment of native Americans in the quarter century following Ark. Native Americans born on US soil (away from the reservation) meet all your supposed qualifiers, yet were denied BRC.
1
Posted on 1/24/25 at 8:37 am to Goforit
quote:
Hans A. von Spakovsky
smoothebrain
-SFP
Posted on 1/24/25 at 8:40 am to Salviati
quote:Except the rationale is not sui generis at all. It carries co-applicability. It is identical to, and based upon, Elk.
SCOTUS treats Indians as sui generis persons.
This post was edited on 1/24/25 at 8:41 am
Posted on 1/24/25 at 8:46 am to NC_Tigah
Can an example be given of someone who is born in the US but NOT subject to its jurisdiction? If it was as simple as if you were born in the US then you become a citizen, then what was the purpose of adding the qualifier "and subject to its jurisdiction".
If a couple is travelling by air from Mexico to Canada, and the pregnant wife has a baby during the connection in Houston, is the baby automatically a US citizen? what kind of sense does that make?
If a couple is travelling by air from Mexico to Canada, and the pregnant wife has a baby during the connection in Houston, is the baby automatically a US citizen? what kind of sense does that make?
Posted on 1/24/25 at 8:48 am to Goforit
Thank you for the link. Very good read indeed and concise.
If the 1898 case is used for birthright advocates, using the excerpt he cites doesn't allow it all. There must be something else in the ruling that they hold on to.
So the dems were predicting a potential strict ruling from SCOTUS of the 14th amendment that says anchor babies are not citizens. So the Feds said you can claim asylum and now you fall under the 14th because you are denying the jurisdiction of you home country and fall under the jurisdiction of the US.
Thus they can claim the 14th amendment applies to them even with a strict interpretation.
If the 1898 case is used for birthright advocates, using the excerpt he cites doesn't allow it all. There must be something else in the ruling that they hold on to.
So the dems were predicting a potential strict ruling from SCOTUS of the 14th amendment that says anchor babies are not citizens. So the Feds said you can claim asylum and now you fall under the 14th because you are denying the jurisdiction of you home country and fall under the jurisdiction of the US.
Thus they can claim the 14th amendment applies to them even with a strict interpretation.
Posted on 1/24/25 at 8:50 am to Penrod
quote:
Rue, and this is why the EO probably won’t go anywhere. Maybe a law?
The EO was always going to be struck down by a court, quickly. Trump and the drafters of the EO knew that. The purpose was to get the issue to the USSC.
The words of the Constitution say what they say. Some interpret it strictly. Others interpret it differently. But in a practical sense, the Constitution is what a plurality of 9 justices think it says. Clearly Trump and the conservatives believe a plurality of the current make up of the USSC will agree with their POV. It's just a matter of getting the issue to them to decide.
Posted on 1/24/25 at 8:52 am to HoopyD
quote:Before the 1924 Indian Act, native Americans were that example. The rationale for birthright exclusion held that they were not fully under U.S. jurisdiction because they owed allegiance to their tribes, not solely to the United States. That rationale obviously would apply to illegals as well.
Can an example be given of someone who is born in the US but NOT subject to its jurisdiction?
quote:It makes no sense.
If a couple is travelling by air from Mexico to Canada, and the pregnant wife has a baby during the connection in Houston, is the baby automatically a US citizen? what kind of sense does that make?
Posted on 1/24/25 at 8:54 am to Goforit
Representative John Bingham, one of the principal framers of the 14th Amendment:
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.”
Senator Jacob Howard, a key proponent of the 14th Amendment:
“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 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.”
Bold emphasis added.
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen; but, sir, I may be allowed to say further that I deny that the Congress of the United States ever had the power, or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.”
Senator Jacob Howard, a key proponent of the 14th Amendment:
“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 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.”
Bold emphasis added.
Posted on 1/24/25 at 8:56 am to NC_Tigah
Add to that, if they are here illegally, they have broken the law to come here and are still under the jurisdiction of their home country.
I'm convinced this is why the Biden admin just opened up asylum request for anyone coming across. That way the new illegals can claim they have no allegiance to their home country because they seek asylum and are submitting under the US jurisdiction. With that I think they may have a case under 14th amend unfortunately.
I'm convinced this is why the Biden admin just opened up asylum request for anyone coming across. That way the new illegals can claim they have no allegiance to their home country because they seek asylum and are submitting under the US jurisdiction. With that I think they may have a case under 14th amend unfortunately.
Posted on 1/24/25 at 8:56 am to Goforit
This analysis is pretty good. The argument is essentially "allegiance" being different than residency or citizenship... a concept rooted in british common law, which was the legal basis for citizenship requirements before the 14th, and used in the Wong decision. There are no references to citizenship in british common law, only "subjectship" which is different since the revolutionist framers obviously rejected monarchal subjectship. The people of british imperial colonies were NOT considered citizens of England, but subjects of the crown. The English today dont recognize birthright citizenship. Not even they have extended this interpretation to citizenship.
So what does the "jurisdiction thereof" qualifier mean? Considering exceptions for American Indians, children born on vessels in US waters, diplomats, foreign occupying forces, etc. its an important qualifier that courts will have to adequately define wrt children of foreign nationals here illegally.
So what does the "jurisdiction thereof" qualifier mean? Considering exceptions for American Indians, children born on vessels in US waters, diplomats, foreign occupying forces, etc. its an important qualifier that courts will have to adequately define wrt children of foreign nationals here illegally.
Posted on 1/24/25 at 9:00 am to Goforit
quote:
A very good article on the true meaning of the 14th Amendment
I agree. A very good article.
The article points out the most important point that WKA cited by “birthright” supporters like SFP due to its overbroad language, "the court only held that a child born of lawful, permanent residents was a U.S. citizen".
quote:
The State Department has erroneously interpreted that statute to provide passports to anyone born in the United States
It's time to correctly interpret the 14th now.
Posted on 1/24/25 at 9:01 am to Salviati
The Supreme Court discusses the application of the citizenship clause in the context of common law and they develop the two exceptions 1. Those born of diplomats and 2. Those alien’s enemies in hostile occupation. This is their discussion of English common law that formed the basis of their two exceptions.
The question now is whether people who have immigrated unlawfully are “aliens in amity.”
Just because illegal immigration was not a thing in 1868 doesn’t mean we must refrain from interpreting how it would have been addressed at that time.
quote:
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.
The question now is whether people who have immigrated unlawfully are “aliens in amity.”
Just because illegal immigration was not a thing in 1868 doesn’t mean we must refrain from interpreting how it would have been addressed at that time.
Posted on 1/24/25 at 9:10 am to LSUFAITHFUL2
Edward Erler makes the case that social compact theory, the basis for our constitution, is incompatible with birthright citizenship because the society cannot maintain a compact without explicit control and consent over who is part of the society.
Posted on 1/24/25 at 9:11 am to LSUFAITHFUL2
quote:The issue is, in Ark there were not just those two exceptions. There was a third exception. It addressed those who were not fully under U.S. jurisdiction because they owed allegiance elsewhere, not solely to the United States.
The Supreme Court discusses the application of the citizenship clause in the context of common law and they develop the two exceptions
Posted on 1/24/25 at 9:15 am to NC_Tigah
Yes, and there could be even more if a court so interprets. Wong addressed the immediate issue before it in a time where immigration was rather loose in the age of building economic power through rapid population growth.
Posted on 1/24/25 at 9:22 am to NC_Tigah
quote:The 14th Amendment, Elk v. Wilkins, 112 U.S. 94 (1884), and United States v. Wong Kim Ark, 169 U.S. 649 (1898), all rely on the exact same concept: tribal Indians are not subject to the jurisdiction of the United States, and therefore, are not citizens of the United States.quote:Except the rationale is not sui generis at all. It carries co-applicability. It is identical to, and based upon, Elk.
SCOTUS treats Indians as sui generis persons.
John Elk was born a born a member of one of the Indian tribes within the United States. 112 U. S. 99. His tribe and their property could not be taxed. Id. As a tribal Indian, he was not a US citizen. As the SCOTUS stated,
quote:112 U. S. 100. Thus, John Elk was an alien and could not become a US citizen without US action.
The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States.
Accordingly, John Elk is more analogous to a Mexican immigrant. He could not become a US citizen by renouncing his tribe any more than a Mexican immigrant could become a US citizen by renouncing Mexico.
Again in Elk, like the SCOTUS did in Ark, and like the Congress did in the Citizenship Clause of the 14th Amendment, Indians were treated as sui generis persons because of their history with the United States government.
This post was edited on 1/24/25 at 9:29 am
Posted on 1/24/25 at 9:28 am to Goforit
Very short and interesting article. For those too lazy to click the link, this is what I interpreted as the most important part:
quote:
In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.
American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924. There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.
Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen. That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.
Posted on 1/24/25 at 9:32 am to Salviati
quote:Except "tribal Indians" were under the jurisdiction of the US as it is currently being defined. "Tribal Indians" were fully, completely, and unquestionably in that category when they traveled off the reservation in the US. Yet, there was no birthright.
all rely on the exact same concept: tribal Indians are not subject to the jurisdiction of the United States, and therefore, are not citizens of the United States.
Why?
The rationale for birthright exclusion held that they were not fully under U.S. jurisdiction because they owed allegiance to their tribes, not solely to the United States. That rationale obviously would apply to illegals as well.
Posted on 1/24/25 at 9:33 am to Goforit
quote:
As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.”
Anybody remember what happened the last time John Eastman came up with a clever Constitutional legal strategy?
Posted on 1/24/25 at 9:34 am to Salviati
quote:
Accordingly, John Elk is more analogous to a Mexican immigrant. He could not become a US citizen by renouncing his tribe any more than a Mexican immigrant could become a US citizen by renouncing Mexico.
Exactly. People in this discussion conflate the parents with the child.
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