Wednesday morning links

"Probably unconstitutional but not a bad idea"

The words "subject to the jurisdiction thereof" in the 14th amendment were put there for a reason.

The question is over just what that phrase means.

For example if a foreign diplomat has a child while serving in the U.S., that child does NOT gain "birthright citizenship".

If Trump presses the issue, and it gets to the Supreme Court as it likely will, we may get to see a real test of whether "originalists" will prevail.

#1 peacelovewoodstock on 2018-10-31 08:09 (Reply)

That phrase was also meant to exclude Indians who, even though they were born in territorial US, were under the jurisdiction of their tribe and thus would not be US citizens and travelers and other people who were in the US temporarily who were under the jurisdiction of their home countries.

I heard that the current interpretation of the amendment was actually started in the '60s. If true, it is yet another bad thing to come out of the '60s.

It really is obvious when you step away from the current interpretation and actually read the amendment and realize the whole idea was to grant citizenship to freed slaves by taking the definition of a citizen away from the states, where it was defined prior, because the ones run by Demonrats would have defined it in a way that would have excluded blacks. The meaning is also clear from the debate in Congress over the amendment.

We should have had this discussion a long time ago. Yet another thing we can thank Trump for!

#1.1 mudbug on 2018-10-31 09:38 (Reply)

Birthright citizenship is most certainly NOT mandated by the 14th amendment. The current interpretation dates to Brennan's infamous Footnote 48 in Plyler v. Doe (1982). It was simply a footnote, not the holding of the case, so there's no governing Supreme Court holding on the issue.

Whether the President can end birthright citizenship without an act of Congress is a separate issue.

#1.1.1 Guest on 2018-10-31 10:46 (Reply)

The president can end it because the constitution doesn't mandate it. It was a decision made in the backroom of the bureaucracy that implemented birthright citizenship. But the final decision is up to the Supreme Court. And that is a 50:50 proposition. The court was able to find the right to an abortion in the constitution so they could probably find anything you can imagine in it if they wanted to.

It is an insane policy and will likely destroy our republic and make us a shithole country like most of the rest of the world.

#1.1.1.1 GoneWithTheWind on 2018-10-31 11:07 (Reply)

Your summation is absolutely true, although the Court's decision about it may not rely on intent.

Textualism is the principle of reading the law and applying it as written. There is no intent required, or even allowed.

Intentionalism, in our case, is the carry-on effect of two hundred years of conditioning to believe that SCOTUS interprets law to render decisions based on something other than the text, such as the writer's intent.

Untrue and dangerous to boot. Intentionalism allows that a single comma changes the very meaning of a law. Textualism does not.

This particular birthright issue is a classic case of the law being unclear and inadequate. The only solution to that is to send it back to the legislature. Only then does your final observation come into play.

Obviously the Framers never, ever intended for the nation to be overrun from without. (In fact, most rightists are entirely too gracious in their views on immigration per original structuralism.)

How to rule on that reliably and durably, however, is not an act of divining intent, even if and where it exists. It's a matter of applying the text of law. Get that right and the court is reformed back to what it should be and away from being a panel of unelected activists and philosophers with the highest authority.

#1.1.1.1.1 Meh on 2018-10-31 15:36 (Reply)

1) If everyone born on American soil got instant citizenship, there was no need for the Indian Citizenship Act of 1924.

2) I disagree that intent was to give every baby born in America citizenship. Reflect on this please:

Russian citizen comes to America to give birth. Baby gets citizenship. Russian mother takes baby back to Russia and raises her there. 35 years go by. Baby is now all grown up, she returns to the U.S. to take advantage of her citizenship and runs for President.

I can tell you, no way in hell was this the intention of the 14th Amendment.

It is not meant to give citizenship to tourists' babies who happen to be born here, those who illegally crossed the border and those without permanent, legal residency. There are several court cases and even words from the author of the 14th Amendment himself that makes this clear.

This idea took hold about 30 years ago.

Time to rectify this problem with an actual court case. With the EO we will get one. Then the issue can be settled once and for all...for better or for worse. Everyone should be thanking Trump for putting this out there and getting some legal definition straightened out. No matter what the end result.

#1.2 MissT on 2018-10-31 12:01 (Reply)

peacelovewoodstock: If Trump presses the issue, and it gets to the Supreme Court as it likely will, we may get to see a real test of whether "originalists" will prevail.

If originalists prevail, then the plain language of birthright citizenship will continue.

mudbug: I heard that the current interpretation of the amendment was actually started in the '60s.

That is incorrect. United States v. Wong Kim Ark settled the issue in 1898. While Wong's parents were not citizens, and were denied the right to naturalize and even the right to return to the United States after a trip abroad, Wong was found to be a U.S. citizen having been born under U.S. jurisdiction, that is, subject to its Constitution and laws.

MissT: 1) If everyone born on American soil got instant citizenship, there was no need for the Indian Citizenship Act of 1924.

That is incorrect. Many Native Americans were not under the jurisdiction of the United States, but constituted sovereign nations. They are excluded from birthright citizenship, as are foreign diplomats, who are under the jurisdiction of their home countries. Immigrants are under the jurisdiction of the United States. If not, they could not be held responsible under the law.

#1.3 Zachriel on 2018-10-31 14:09 (Reply)

I'm not sure what you think is incorrect about MissT's statement.

The 14th amendment phrase 'under the jurisdiction' indicates that there are some number of people, either large or small, who might be born physically in US territory that are not under the jurisdiction of the United States and thus not citizens at birth. Prior to the Act of 1924, Native Americans constituted one such group of people, only a few of whom would have been born before its adoption some sixty years earlier. If the original language of the 14th Amendment had been understood from its adoption as including Native Americans then, as MissT indicated, the Act of 1924 would not have been required to establish their citizenship.

Regardless of their naturalization status or whether they were subsequently allowed to enter the US, the parents of Wong Kim Ark were legal residents at the time of her birth.

Nobody contests that the children of naturalized citizens and/or legal resident aliens are citizens at birth. You are deliberately conflating two different classes of people - legal residents and those who have entered our country without authorization to do so.

#1.3.1 Christopher B on 2018-10-31 15:27 (Reply)

Christopher B: I'm not sure what you think is incorrect about MissT's statement.

She said "If everyone born on American soil got instant citizenship, there was no need for the Indian Citizenship Act of 1924." Native Americans who were members of recognized Indian nations were not made citizens under the 14th Amendment because they were not under the jurisdiction of the United States.

If you prefer, instead of saying her statement was incorrect, we'll simply say that it doesn't advance her argument. Diplomats and members of Indian nations were not covered by the citizenship clause because they were not under the jurisdiction of the United States. Immigrants, however, were and are under the jurisdiction of the United States.

Christopher B: Regardless of their naturalization status or whether they were subsequently allowed to enter the US, the parents of Wong Kim Ark were legal residents at the time of her birth.

Of course that's not the argument being raised, which is that children of non-citizen immigrants don't become citizens under the 14th Amendment.

#1.3.1.1 Zachriel on 2018-10-31 15:46 (Reply)

By the way, whatever happened to the conservative position about limitations to executive power? Here we have a case where the president is threatening to overturn more than a century of precedent, and the clear language of the 14th Amendment, all by executive order.

Trump does it, and everyone abandons generations of conservative principles, falling into line. Is this some sort of weird cult?

#1.4 Zachriel on 2018-10-31 14:13 (Reply)

Conservatives believe in the plain reading and original intent of the Constitution.

QUOTE:

"Subject to the jurisdiction"

The jurisdiction requirement was added to the original draft of the Fourteenth Amendment by the Senate after a lengthy and acrimonious debate. In fact, Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Sen. Howard noted that the jurisdiction requirement is "simply declaratory of what I regard as the law of the land already." Sen. Howard said that "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."

#1.4.1 mudbug on 2018-10-31 14:48 (Reply)

mudbug: "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."

"foreigners, aliens, who belong to the families of ambassadors ..." refers to foreigners who belong to the families of ambassadors. Otherwise, all those children of European immigrants wouldn't be citizens either. And that clearly wasn't the case. The context of the statement makes clear that children of immigrants were to be granted citizenship. Reading further:

Mr. Conness: "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."

#1.4.1.1 Zachriel on 2018-10-31 15:03 (Reply)

You incorrectly attributed the quote to me. It was said by the Senator Howard. You can tell that because it says, "Sen. Howard said that 'this will ...'" As the snippet says, Senator Howard was the one who wrote the part of the amendment pertaining to those "subject to the jurisdiction..." explaining what the meaning of the phrase.

Here is some more:

QUOTE:

Sen. Reverdy Johnson of Maryland, who was the only Democrat to participate in the Senate debate, was even more explicit about the meaning of the jurisdiction
requirement: “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.” Sen. Johnson's reading of the jurisdiction requirement also is consistent with our naturalization requirements. Since at least 1795, federal laws governing naturalization have required aliens to renounce all allegiance to any foreign power and to support the U.S. Constitution. Such allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.

So even a Demorat knew what it meant!

#1.4.1.1.1 mudbug on 2018-10-31 15:31 (Reply)

mudbug (quoting): “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.”

You really shouldn't rely on quote-mines.

Reverdy Johnson: "If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States."

The meaning of the 14th Amendment is very clear: Immigrants residing in the United States are "subject to the authority of the United States", so their children become citizens.

#1.4.1.1.1.1 Zachriel on 2018-10-31 15:53 (Reply)

The meaning of the 14th Amendment is very clear

Absolutely false on its face and many have laid out how and why on this same page.

According to our radical leftist neoconstitutionalists to whom the thing means anything they can get a Precedence Monster to say the Framers intended 200 years later, the argument is that originalism intended what precedent subsequently became, which was a little flag planted on either pole inviting strictly carnivorous twelve foot tall space aliens with a taste for humans into the US because of what the Gasbot would have you believe is the logical contradiction that if you're here you're inherently here legally per American jurisdiction.

It's the phrase in the 14th that's so devoid of meaning the way Gasbots use it that it has no obvious place in the text, and from there it's a simple hop and a skip for gasbots to claim that precedent rightly replaces the Constitution by interpreting its aim at the same exact time as it violates it. Oops, sorry you old thing but look at how faithful we are to your aim by directly contradicting and replacing it. Now slap us on the back.

That is the sum of Gasbot's argument. It's ten other fallacies and logical contradictions are how it arrived at that point, blaming you for it. Why it's as if the Framers intended babies to be decapitated in the womb by doctors because intent or free speech or rights or something the Framers said by never saying it and bumble bargle blah.

Precedent! Intent!

#1.4.1.1.1.1.1 Yet the Gasbot abides. on 2018-10-31 16:14 (Reply)

In its zeal for rock-ribbed constitutional argle-bargle word salad nonsense, Gasbot has conveniently ignored the scads of potentially Republican-leaning immigrants sought by Bush globalists a decade or so ago who were profoundly and very constitutionally resisted as the Ultimate Matter of National Security and Nationalistic Unity by all the official Democrat celebrities of the day.

#1.4.1.1.1.2 Yet the Gasbot abides. on 2018-10-31 15:58 (Reply)

^ Folks, here the Gasbot is arguing that precedent replaces the Constitution while at the same time tacitly calling on constitutional precedent. What Gasbot is doing, other than diverting the conversation, is using the blunder of subsequent precedent and inferred, rhetorical intentionalism to subvert both clear textual law as well as intent, as it turns out.

Gasbot has exploited the flaw in intentionalism, thereby damning it and exposing it as a radical ploy, stretched it to falsely conflate stare decisis with structuralism, and tried to slide the whole contradictory mess in under your noses as your own failing. It is you, conservative, who have (through these transparent devices) failed the very Constitution and worse, your sacred Framers and Founders.

Don't fall for it. Until our Gasbot can address each of these essential elements correctly it is in no position, especially given its history, to make any claim on the Constitution, original intent, or you whatsoever.

#1.4.2 Yet the Gasbot abides. on 2018-10-31 15:52 (Reply)

Blue-Wave people wouldn't bus these migrants, using them as pawns, in a crass, dirty-tricks campaign move.
Unlike T, they're pure, wonderful people.
Except, I seem to remember....Harry Reid and Romney didn't pay any taxes.

https://www.washingtonpost.com/news/the-fix/wp/2016/09/15/harry-reid-lied-about-mitt-romneys-taxes-hes-still-not-sorry/?noredirect=on&utm_term=.487ca616f614

/sarc

#2 Riick on 2018-10-31 09:05 (Reply)

BD, thanks for the scary image! Always enjoyable even if it is a micro aggression or cultural appropriation or something.

#3 grant1863 on 2018-10-31 09:07 (Reply)

Re banning assault rifles. There have been many studies on guns, violence and criminality over the years. You should read these three major studies to become knowledgeable on the subject.
Drs James Wright and Peter Rossi, “Under the Gun, Crime and Violence in America” (1983) National Institute of Justice
Professor Gary Kleck, “Point Blank, Guns and Violence in America” (1991).
Dr. Charles Wellford; et al, “Firearms and Violence: a Critical review” (2004) National Academy of Sciences.
These were big studies and they all found there is no evidence that demonstrates the availability of guns has any measurable effect on rates of homicide, suicide, robbery, assault, rape or burglary.

#4 Ray on 2018-10-31 10:31 (Reply)

If I attacked someone, using a screwdriver, that would make it an "assault screwdriver".

#4.1 Sam L. on 2018-10-31 11:34 (Reply)

I think that the screwdriver has to be black, have multiple screwdriver points and look scary to qualify as an assault screwdriver.

#4.1.1 Anon on 2018-10-31 12:19 (Reply)

That would be a "Tactical Screwdriver"!

#4.1.1.1 Sam L. on 2018-10-31 12:25 (Reply)

Perhaps than it depends on if the various screwdriver points automatically load for the next, uh, screw.

But I do think that if it is painted black that most left wing lawmakers would indeed consider it a assault screwdriver.

#4.1.1.1.1 Anon on 2018-10-31 17:49 (Reply)

"Organized Busing" of the invaders may be locally arranged, because jeepers, the Mexicans don't want them stopping in their towns and messing up their stuff.
I kinda see that as a strong possibility...

#5 rich whiteman on 2018-10-31 11:08 (Reply)

There is something about this caravan that smells wrong. There appears to be a lot of monetary and logistic help from "somewhere". Some have estimated that there are 10's of thousands of dollars a day being funneled in to support this spontaneous caravan. I know Soros is supposed to be one of the contributors but there seems to be additional outside money and aid being bestowed on these "poor" people. I assume that after the election we may find out more about this.

#5.1 Anon on 2018-10-31 20:22 (Reply)

Microaggressions require microapologies.

#6 Assistant Village Idiot (Link) on 2018-10-31 21:13 (Reply)

Assistant Village Idiot: Microaggressions require microapologies.

That's right. However, unapologetic microaggressions can add up over time.

#6.1 Zachriel on 2018-11-01 11:24 (Reply)

I live across the river from Washington DC. There was an interesting story on the radio this morning. Some yuppie was robbed of his bicycle by a baseball bat wielding robber. I was just wondering if it was one of those big black Louisville slugger assault bats? I'm waiting for the mayor of DC to go on TV and tell us that if the police just get all those illegal bats off the street that will solve the problem.

#7 Ray on 2018-11-01 18:22 (Reply)

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Wednesday, October 31. 2018

Wednesday morning links