Maggie's Farm

"...it is clear that the framers intended to include children of immigrants..."

We will soon enough find out what 5 of the 9 Supreme Court justices think about that. That is a bold statement to make when there is far more than just a handful of legitimate legal and constitutional scholars who disagree with that statemeni. And anyone who has been paying attention to this issue, regardless of which side of the coin they are rooting for, knows that the issue isn't about whether children of immigrants born on American soil are automatically citizens per the 14th Amendment. The real issue is whether they were under the jurisdiction of the United States of America when they were born. And that depends on what the phrase "under the jurisdiction" actually means in the 14th Amendment. What did those who debated wrote and voted for think that phrase think it meant. And it probably doesn't mean, like Jackson Browne apparently thinks, that while you're here you have to obey our laws. That is a given; it wouldn't need to be implied once and then immediately stated again.

As far as your serial misrepresentation and obfuscation about Wong Kim Ark (I think we had this discussion about a year ago), The fact pattern in this case is quite different from someone sneaking past the front door and crawling through a half-open window in the back and hiding in the basement until the baby arrives, which is an apt analogy to illegal immigration. (And by the way immigrants who do that are breaking our laws and repudiating, by their defiance, the idea of being under the jurisdiction of the United States.) Wong Kim Ark's parents emmigrated here lawfully, legally established a business and then birthed Wong Kim Ark. The court's decision discussed and affirmed the fact that Wong Kim Ark's parents had demonstrated the intention to and in fact had integrated themselves into the American polity Well before the birth of Wong Kim Ark. The parents eventually returned to China (Chinese immigrants were not allowed to be naturalized), and it's not established, but one can reasonably surmise that their return to their homeland may have been due to the rampant anti-Asian sentiment in the country at the time. When Wong Kim Ark's return to China, Wong Kim Ark remained in America with relatives, continuing to conduct himself as any other American. Later when he sailed to China to visit his parents and subsequently returned to America, He was stopped at what then would have been a legal port of entry and detained because a law had been passed making immigration of Chinese people in particular, illegal. Ultimately, a majority of justices on the Supreme Court determined that both he and his parents had met the condition of being "under the jurisdiction thereof," And that Wong Kim Ark was indeed a legitimate Amendment 14 citizen.


It should be obvious that if the meaning of that phrase is as simple as a simpleton like Jackson Browne thinks it is, there would have been no need for the lengthy and expensive drawn out fuss. And the decision would have been quite easy for the Supreme Court: Unanimous!


In a somewhat similar case decided in 1884, Elk V Wilkins, The opinion of the Supreme Court (referring to the subject phrase) declared, "The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."


So there is already some binding appellate precedence regarding the matter, and it is blindingly disingenuous to claim with an air of authority that the words simply mean you have to stop at a red stop sign or you'll get in trouble.

There is no need to amend the Constitution. There is a need to begin applying the law as it written and affirmed nearly 150 years ago.

Zach: Justice Robert Jackson: "We are not final because we are infallible, but we are infallible only because we are final."

Whoo boy. Now that's funny right there I don't care who you are.
See Dred Scott, and more recently, Roe v Wade.

Zach: "It's only had any currency since the 1990s..."

Nonsense. See Wong Kim Ark, Elk v Wilkins, and before that, the Naturalization Act of 1790.

Zach: "Jurisdiction is a term the United States inherited from the common law."

Like a lot of your nonsense, you're just making that up. Jurisdiction is a word whose meaning varies depending on the context in which it is used.

Zach: "Those in the sovereign's dominions were subject to the laws and protection of the sovereign."

You seem to be unaware that we had a revolution to throw off the chains of "the sovereign" and establish a new republican form of government where the sovereign is We the People. And there is no dominion here, but there are some public lands.

Zach: "...That's what it means."

One of the rules in the Canon Of Construction, recognized by the first Supreme Court, is that every word must be read to have full meaning and none so as to be rendered superfluous. If the words “under the jurisdiction thereof” simply meant "you have to follow our laws like everybody else here," then the first part of the amendment logically could be read thusly:

"All persons born in the United States where you have to follow our laws just like everybody else, have to follow our laws just like everybody else..."

That not only violates the rules for interpretation, it's just plain silly.

Zach: "The Wong decision depended on the meaning of jurisdiction under inherited common law and under United States law, and that reasoning applies to illegal immigrants."

You are making up the inherited common law part again and if your definition of jurisdiction also applies to illegal immigrants, who begin by breaking our laws - thus repudiating jurisdiction purposefully by evading the lawful requirement to present themselves for inspection at a designated port of entry, and other laws regarding continued presence within the borders of the United States – all of which are enacted by Congress acting on behalf of the sovereign, We the People.

Zach: "Wong (1898): “It is impossible to construe the words ‘subject to the jurisdiction thereof,’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ‘subject to the jurisdiction of the United States.’”

Do you even read what you quote, and if you do are you capable of comprehending the words when they are put together to express a thought?

"‘subject to the jurisdiction thereof,’ in the opening sentence, is MORE comprehensive than the words "within its jurisdiction." (That distinction is the whole point.)
Example: 4 cannot have fewer ones than 2.

"...or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ‘subject to the jurisdiction of the United States.’” Unless here illegally, which wasn't in the legal lexicon back then but surely is now. And Elk v Wilkins, later precedent, seems to contradict the latter quoted language.

re: Elk v.Wilkins:
Zach: That is not a relevant precedent. Elk (1884) concerns Indians born on quasi-sovereign Indian lands. Elk was born on tribal lands, so wasn't a citizen by birth, even though he later lived under the jurisdiction of the United States. That's no different than someone born in England and living in the United States. They wouldn't be a citizen by birth—but their children would be.

Of course it is relevant precedent, why do you continually embarrass yourself like that?

First regarding your example about an English native giving birth to children in the United States. You omit relevant information regarding whether she arrived legally (by presenting herself for examination at designated Port of entry) or whether she snuck across our border, thus purposefully evading and repudiating the 14th Amendment requirement "and being under the jurisdiction thereof..."

Now a quote from Elk V Wilkins, (which will reveal the weakness of your knowledge on this subject.) And it appears that you didn't even bother to read the case because this is the second paragraph. You know, the next one after the first? Seems like it would be hard to lose interest that quickly.

"A petition alleging that the plaintiff is an Indian, and was born within the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States, and is a bona fide resident of the Nebraska and City of Omaha, does not show that he is a citizen of the United States under the Fourteenth Article of Amendment of the Constitution."

Now there are two distinct principles addressed in this paragraph and I want to separate them and just quote them to see if you can even figure out how they absolutely rebut your prevarications about the 14th Amendment.

"was born within the United States, and has severed his tribal relation to the Indian tribes, and FULLY AND COMPLETELY SURRENDERED HIMSELF to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States,"

and

"and is a bona fide resident of the Nebraska and City of Omaha, DOES NOT SHOW that he is a citizen of the United States under the Fourteenth Article of Amendment of the Constitution."

(Because Indians were not yet allowed to become citizens of the United States under the law.)

But the fact pattern in this case, and the Supreme Court's explication of the 14th Amendment and the phrase “under the jurisdiction thereof,” are absolutely relevant to this matter.

You'd have to be completely uninformed to aver otherwise.

Zach: Now you got it. It took a war and an amendment to overturn Dred Scott.

Now I got it? That's rich coming from you.

Zach: We addressed Wong and Elk Yes, but almost completely incorrectly. (How many of you are there?)

Zach: The Naturalization Act of 1790 has to do with naturalized citizenship, not birthright citizenship,

The Naturalization Act of 1790 is the first Congress's Exercise of its power under Art2.Sec8 to establish a uniform rule for naturalization, and, also, under the Necessary and Proper clause in the same section. The first paragraph in the following Art2.Sec9 implicitly anticipates that Congress would, after 1808, begin to exercise its power to regulate the "migration or importation" of persons. Since those who would be naturalized obviously wouldn't emerge from a population of citizens who bore children on the land, which also reinforces Congress's Art2.Sec9 power to regulate immigration. In fact the Supreme Court has repeatedly reinforced this understanding, which has become known in jurisprudence as the Immigration Plenary Power Doctrine.

Zach: ..but their children would be citizens by birth under the common law.

Not so fast there Zach. Again it looks like you're not doing your homework. If you actually take the time to acquaint yourself with the Naturalization Act of 1790, you may discover that the original founders had a rather exclusive - some might even say racist - idea about who could become a member of the club they were finished inaugurating.

Zach: Regardless, 1790 long predates the Fourteenth Amendment.

That is a simple statement of fact that I can agree with. I cannot apprehend why you felt the need to introduce it to the conversation.


Zach: In a republic, the people are sovereign. The United States inherited common law, including the principles of sovereignty. The concept and term "sovereignty" are deeply rooted in US jurisprudence (e.g. the dual-sovereignty of federal and state governments, "sovereignty of the United States resides in the people", Chisholm v. Georgia 1793).

That's what I said and again I agree. And you are characteristically obfuscating.

Zach: The word "jurisdiction" divides the people born within the United States into two groups, those who are under its jurisdiction and those who are not.

True, as corrected.

Zach: Your strained construction seems to say everybody born within the United States has to follow United States law, but that is not correct. Diplomats are an obvious exception.

Responding to your comment about diplomats: Generally this is true only when they are on their sovereign embassy grounds or performing their diplomatic duties. Otherwise they are fully obligated to obey our laws, That they are immune to prosecution in our courts seems to confuse some people . But that does not mean that they are beyond the reach of the authority of federal government: They can certainly be recalled to their own country under a threat of punitive action , or expelled by the federal government from all or part of our territorial boundaries. This has happened countless times. It is perhaps not a satisfying penalty for disobeying our laws but it is still nonetheless a penalty.

Responding to your comment about my (supposed) strained construction. I applied basic logic, of the kind that is taught in elementary school and the kind that has application in first year algebra, to your own strained logic to illustrate how ridiculous it is. I will repeat that explanation, please read it slowly. Twice :


One of the rules in the Canon Of Construction, recognized by the first Supreme Court, is that every word must be read to have full meaning and none so as to be rendered superfluous. If the words “under the jurisdiction thereof” simply meant "you have to follow our laws like everybody else here," then the first part of the amendment could be read thusly:

"All persons born in the United States where you have to follow our laws just like everybody else, have to follow our laws just like everybody else..."

That not only violates the rules for interpretation, it's just plain silly.


Zach: Huh? Are claiming the United States is not a common law country?

(Previously: Zach: "The Wong decision depended on the meaning of jurisdiction under inherited common law... )

That is not at all what I said and if English was your first language you would know that. I responded to your incorrect assertion that in the Wong Kim Ark case the Supreme Court looked (only) to inherited common law rather than the actual facts of the case, which were that Wong Kim Ark's parents were legally domiciled within the United States when Wong Kim Ark was born and that they and Wong Kim Ark had established voluntary compliance to being completely under the jurisdiction of the United States. This is transparently different from a case where an illegal immigrant enters our country in defiance of our laws and has a baby on our soil, and in the case of an alien, legally admitted on a tourist visa, who comes only for the purpose of birthing a child on our soil and then returns to her home country with its US birth certificate to raise it to adulthood there, possibly imbued with customs and philosophies that might well be inimical to the United States of America . Which are fundamental principles about the matter that you continue to ignore.

Zach: Are you saying undocumented migrants are not under the jurisdiction of the United States?

I am saying (again) that illegal aliens are not completely under the jurisdiction of the United States. This is a principle that was clearly explicated in ELK v Wilkins. Did you go back to read the paragraph that I quoted? You seem to have trouble understanding the laws and court decisions that you claim to be an expert at.

Zach: So, if they commit a crime, they can't be tried in the United States, but have to be tried in their home country?

I am dumbfounded that anyone who presents as intelligent would ask such a stupid question. (Justice Brown, please pick up the guest phone.)

That's not precisely correct.

It is precisely correct. Hold your nose, stomp your feet; It will still be precisely correct.

the children of diplomats born in the United States are not under the jurisdiction of United States.

The 14th Amendment was not written with the children of diplomats in mind and your understanding of how our laws apply to diplomatic entourages is so shallow and flawed, as I illustrated in our previous exchange, that we have no common language with which to further discuss this matter.

But a slave who was forced to come to the United States who never wanted to be in the United States is under the jurisdiction of the United States?

Such a person presumably would have arrived before the end of the Civil War and certainly before the drafting of the 14th Amendment. Before the end of the Civil War a slave of course would have been subject to the laws of the land, and also the whims of his or her owner. After the Emancipation Proclamation, slaves in the South (but not the North) were declared to be free. So, I presume, such persons who remained in the United States could have been considered to have voluntarily surrendered to the complete jurisdiction of the United States. A voluntary expression of complete allegiance is part of the naturalization process. A voluntary surrender to inspection at a designated port of entry is a requirement to legally cross the border into the United States. These are simple concepts that we have discussed here in extensive detail with eight by ten glossy photographs with circles and arrows and paragraphs on the back of each one what explainin' what each one was .

I am sitting here shaking my head wondering if all of the people bouncing around in your head are really incapable of understanding these things or are just pretending.

That's why the Fourteenth Amendment has the jurisdiction clause.

The 14th Amendment has the jurisdiction clause to separate the people who are here because they wish to be and asked our permission (and whom we have consented to let into our midst), from those who aren't, and to apply the provisions of the Constitution accordingly.
In the first case, it signifies a reciprocal agreement and we have the right of refusal. In the second case it describes a condition of theft. When an illegal alien is eventually caught, he does not have the full protection of our Constitution. If the only evident criminality is the repudiation of our immigration laws, then he goes straight to an administrative immigration court, appears before an administrative judge, has no right to bail, has no right to a trial by jury, has no right to a government provided attorney, has no right (generally) to admit evidence - for just a few examples.

That would be news to the Framers.

I suspect that the framers, unlike you, would have no trouble at all understanding these matters in their contexts.

You may have missed this question: If an illegal immigrant in the United States commits what would be a crime under United States law, are they not under the jurisdiction of the United States?

You may have missed my answer over the noises from the voices from the several people in your head. It was in the very last paragraph of our previous exchange

Zach: That is incorrect. Senator Lyman Trumbull, chief sponsor of the Amendment, said, “We cannot make a citizen of the child of a foreign minister who is temporarily residing here.” Who would be included and excluded was much debated at the time, including diplomats (excluded) and, gasp, "gypsies" (included).

So they specifically excluded diplomats. But wrote the amendment with diplomats in mind? I repeat, I don't think we share a common enough vocabulary to have a fruitful conversation.

Zach: That is correct

So we agree on this one. Let's put a check mark by it.

Zach: Newborns don't voluntarily surrender to jurisdiction

Once the parents have, the newborns are along for the ride until adulthood.

Zach: Are the children of slaves brought illegally into the United States (illegal immigrants) citizens under the Fourteen Amendment?

The answer to your question (as corrected) is YES , that was the main purpose of the 14th Amendment: To officially welcome former slaves and their progeny into the family of citizens. And you keep using that word illegally . I don't think it means what you think it means.

Zach: That is incorrect. People didn't have to ask permission to immigrate to the United States when the Fourteenth Amendment was adopted.

OK, I'll give you this one on a risible technicality; when the Fourteenth Amendment was adopted (as far as I'm aware) Congress had not enacted any laws limiting immigration. But shortly after the article was adopted Congress began regulating immigration, exercising a power granted by Art2.Sec8, and granted and anticipated by Art2.Sec9. And the Supreme Court has continually recognized Congress's authority to do this by the policy known as the Immigration Plenary Power Doctrine. So in the practical terms of modern jurisprudence, I think my slightly awkward explication is correct.

Zach: That paragraph was devoid of relevant content.

I disagree.


Previously ;

Zach: So, if they commit a crime, they can't be tried in the United States, but have to be tried in their home country?

I am dumbfounded that anyone who presents as intelligent would ask such a dumb question.



Your two questions are virtually identical as to the point, and the answer is so obvious that it's impossible for an intelligent person to miss.
If you are as well versed in the subject as you purport to be you would not even ask the question, for fear of embarrassing yourself.

If somebody commits a crime in the United States they will answer for it in the United States even the criminal is an alien who escapes back to his country of origin if we an extradition treaty with that country.

Zach: We demonstrated the Framers did consider diplomats (that is, had them in mind)

You are being characteristically pedantic. The 14th Amendment was crafted to protect the rights of newly freed slaves and their progeny. Diplomats and Indians are not mentioned anywhere in it.


Zach: Thousands of slaves were illegally imported to the United States after the slave trade was ended.

The importation of slaves into the United States was ended in 1808 as anticipated by Art2.Sec9. It is estimated that perhaps another 10,000 were smuggled into the country after that. In 1820 Congress passed a law making this an act of piracy and imposing the death penalty. In any event, these slaves and any of their progeny, would have been covered by the 13th and 14th Amendments and this is not a difficult concept to understand.


Zach: They were illegal immigrants.

Only in your fevered imagination trying to catch up to your misrepresentations. In the context of this discussion and in the common vernacular, "illegal aliens" are those who are born in a foreign country and of their own volition choose to repudiate our laws by purposefully entering our country without presenting for examination at a designated port of entry as required by our immigration laws, and then stay here (pretending to be legal) also in violation of our laws. This is a simple and easy to understand concept and you should not lower yourself to twisting it in an attempt to back-fill your failed argument.


Zach: The question doesn’t actually concern the parents, of course,

When considering the subject of children born, it seems odd to leave the parents out of the equation. That you would do so so blithely says something about all of you. (Are you all always in agreement or do you take a vote before expressing your collective opinion?)


Zach: ...but whether their children were born under the jurisdiction of the United States.

And now we come again to the meaning of the phrase "under the jurisdiction of" in the context of the 14th Amendment, and whether a newborn child can be in a condition other than that of its parents. (A minor child of naturalized parents is considered to be naturalized along with them.)
Upon this will hang the opinion of the Supreme Court.


Zach: So (excepting diplomats, but not excepting undocumented migrants), the somebody is under the jurisdiction of the United States (while diplomats and their families remain under the jurisdiction of their home countries).

You keep conflating under the jurisdiction of with in the jurisdiction of . These are two completely different concepts. How can you not understand this?

Zachriel, I do not engage in discussions such as this in the futile attempt to convert my interlocutor to my opinion. Rather, I do it to persuade any onlookers, with reason, facts and references, from being convinced by misrepresentations that are presented with the tone of knowledge and authority by sumdood on the internet who is wrong.

I think we have sufficiently monopolized the bandwidth provided by our tolerant host with this discussion.

Until the next time, I bid you peace.