Thoughts from Instapundit. It’s pretty clear that the writers of the 14th Amendment never had any idea it would be used for this. It was to deal with the aftermath of American slavery and continuing resistance by the Democrats to end it.
And of course, I’m long on record of believing that no one should have birthright citizenship. Work here, live here, but citizenship is a privilege to be earned, regardless of parentage or place of birth.
[Wednesday morning update, finally home in California after over six weeks away]
To clarify, in response to a discussion on an email list:
Simply, if you are born here, you have a right to stay here. It makes no sense to deport someone to a country in which they’ve never lived (i.e. DACA, even though Obama’s order was illegal). Everyone born here or otherwise legally here would have the same path to citizenship. But citizenship of someone born here via that path would not entitle their family to citizenship (i.e., an end to “anchor babies”). Everyone, including children of citizens born here, is responsible for earning their citizenship. Others are legal residents, but they don’t get to vote to confiscate my wealth.
Also, this is not about “preserving the Republican Party.” It’s about preserving the Republic itself.
Heinlein had the right idea: “service guarantees citizenship”.
Unfortunately, it wouldn’t work in the real world. SJWs would take over the military and ensure that only SJWs were allowed to serve.
Rather like they created ‘birthright citizenship’ out of thin air, when it was clearly never intended by the people who wrote the amendment.
Compulsory service didn’t work for the armed services and it wouldn’t work for instilling a civic duty as there is too great a danger to subverting the intention with an abusive totalitarian regime, similar to what we are seeing sweep through the Democrat party right now.
Oh wait, Heinlein’s scheme wasn’t compulsory in the sense everyone had to do it, just compulsory in everything a person did after they join. But it is a bit like blackmail in getting people to volunteer. Either join up and get rights or don’t join up and be a second class citizen.
The only rights foregone, as memory serves, were to vote and to hold an elected office.
Those are important rights. It is a bad idea but not for something to write about in a work of fiction. Imagining different ways of doing things is great fun for writers and readers but we always have to remember that the way things turn out in a novel is due to one thing, the author.
I’m not advocating it, but in Starship Troopers, military service was far from compulsory: the only thing that happened if you enlisted was you gained the right to vote.
Actually, only retired military got to vote, not active duty people.
” . . .but citizenship is a privilege to be earned, regardless of parentage or place of birth.”
I can give you examples of countries in which who gets citizenship, who gets to vote, was decided by a ruling elite.
I can give you examples of countries in which who gets citizenship, who gets to vote, was decided by a ruling elite.
So can I. Do you have a point that’s relevant to mine?
I thought my point self evident: Who gets to decide who gets citizenship?
The government, obviously. Who else would do it?
Though I gather Switzerland requires existing citizens to vote to approve a grant of citizenship to a new arrival. Which seems like a decent idea, since they’ll be the ones who have to share a country with the new citizens.
Handing out citizenship like candy isn’t done for the benefit of existing citizens, it’s done for the benefit of the left-wing politicians who are importing new voters.
I agree: “the government”. But if I may add this point: water is wet.
What would one need to do to “earn” citizenship? Get good grades in school? Register as a Republican? Have $100,000 to buy citizenship? All such methods are open to abuse, ending the practice of governance by the people, establishing rule by an elite minority. Which would eventually lead to rebellion and revolution, just another war to establish American democracy, the US has had two of those already, why not have some more?
I proposed nothing resembling any of those things, other than perhaps getting a good grade on a basic citizenship test, something that we do with naturalized citizens and always have. But nice attempt at a straw man.
“What would one need to do to “earn” citizenship?”
That would obviously depend on what kind of country you want to build. If you want a viable, productive nation, citizenship would only go to productive people who want to maintain that nation. If you want a bloated welfare state and massive debts followed by complete collapse, you’d give citizenship to unproductive people who just want to leech off the productive.
Again, the founders of the US created strict citizenship rules and limited the vote to people with a vested interest in maintaining the nation. Are you arguing that they were wrong?
Andrew W: Always coming up with something not-quite-relevant, but stupid.
The people who want to become citizens, by performing the acts required to gain citizenship.
Why should someone, regardless of their behavior and level of social responsibility, be a citizen of this great nation through the sheer luck of having been born here, when many other true Americans who weren’t born here but “got here as fast as they can” are not?
Being similar to Americans does not make someone American and there is no luck involved in being born to American parents.
The current system takes advantage of our good nature and needs to change but disenfranchising wide swaths of the populace is a bad idea.
“disenfranchising wide swaths of the populace is a bad idea”
Mass democracy is a recent invention, and one the US founders tried to avoid because they believed it would lead to mob rule. Even the Greeks, who invented democracy, only allowed about 10% of their population to vote.
It’s not entirely clear to me that they were wrong. I could certainly see a case for only giving the vote to those who are prepared to fight to save their society if their votes lead to a social breakdown. No skin in the game, no vote.
“Mass democracy is a recent invention, and one the US founders tried to avoid because they believed it would lead to mob rule.”
Exactly…the electoral college also was also intended to blunt the effect of majority takes all by reducing the relative footprint of populous states vs non so populated ones. It (the electoral college) was specifically intended to by such limit the power of the central (federal) government. Remember originally Senators were elected/appointed by the state government not directly elected by the state’s citizenry; another check not appreciated today.
No skin in the game, no vote.
We all have skin in the game because we all have to live with the policies enacted by our politicians.
I am in favor of our current system of checks and balances and am skeptical of people who think it is outdated because they often tend not to care about checks and balances. (Not saying you are in relation to the current discussion but rather the movement to get rid of the electoral college, SCOTUS, 1st and 2nd amendments, ect)
“We all have skin in the game because we all have to live with the policies enacted by our politicians.”
Maybe in some abstract, long-term sense, but many people don’t see life that way. Particularly those with short time preferences, who’d rather have $10 today than a viable society in ten years.
Some people work to build a nation and a thriving economy. They have a lot to lose from destructive policies.
Others work to steal money from those who do so and vote it to themselves. They have much to gain from destructive policies, and little to lose.
Similarly, it’s not exactly surprising that many of the most destructive policy decisions are being made by childless politicians like Merkel and May, since they have no vested interest in leaving a good world for their kids.
I didn’t propose disenfranchising existing citizens, just raising the bar for new ones.
I think Rand’s proposal is a bit tougher than Trump’s, but I’ll note Trump’s EO would give the US the same naturalization laws as New Zealand as of 2006.
Here is a part of the commentary by Senator Jacob M. Howard, author of the 14th Amendment, as he introduced it to the Senate.
“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 key is “subject to their jurisdiction.” An alien is subject to the jurisdiction of his or her own country. Case law for the past 130 years has firmly held that illegal aliens are not only not subject to the jurisdiction of the United States, they are considered to be not on U.S. soil at all.
There is nothing whatever wrong with what President Trump is proposing. He is simply reasserting the actual meaning of the 14th Amendment, which had been previously subverted.
“The key is “subject to their jurisdiction.” An alien is subject to the jurisdiction of his or her own country. Case law for the past 130 years has firmly held that illegal aliens are not only not subject to the jurisdiction of the United States, they are considered to be not on U.S. soil at all.”
Yes. When it is inevitably legally challenged (Trump’s executive order) and ends up before SCOTUS that should be interesting. Can’t see how SCOTUS could reasonably rule any other way but in support of Trump’s order; to do otherwise you are rendering the “subject to their jurisdiction” part of the 14th amendment (& reiterated in the 1952 law*) to be meaningless.
* “Immigration and Naturalization Act of 1952, the basic body of US immigration law, also says a “person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth.””
https://www.businessinsider.com/trump-birthright-citizenship-14th-amendment-immigration-naturalization-act-2018-10
Key being as you state subject to our jurisdiction; can’t see how an person here illegally could qualify as that.
“The key is “subject to their jurisdiction.”
I don’t know what that legal phrase means. Does anyone have a legal definition?
An individual driving a car is subject to the local speed laws..is that what is meant by jurisdiction?
““The key is “subject to their jurisdiction.”
I don’t know what that legal phrase means. Does anyone have a legal definition?”
IANAL, but I’ve learned over the years that sometimes a definition, when not directly provided, can be found in a counter-factual elsewhere in the text.
To that end, I refer to later in the speech (emphasis mine):
“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.”
I would be curious to know if there have been any ambassadors’ family members in the US who gave birth here and whether or not that child was granted automatic citizenship. I would be curious about whether or not the same has happened for any refugees who gave birth in an overseas US embassy, given the legal status we attach to the soil on which an embassy resides.
Johnny B:
“IANAL, but I’ve learned over the years that sometimes a definition, when not directly provided, can be found in a counter-factual elsewhere in the text.”
IANALE but I don’t think that is enough. Yes that’s what the writer of that speech meant.
But we have to go by the words of the law or there will be endless arguments about “what was meant” on every law.
The law doesn’t say “of course illegal aliens are not covered”
The court battle will not be fought out over the contents of the speech but the meaning of the phrase, I would think.
So when the speech-giver uttered the phrase:
“subject to their jurisdiction.”
What exactly did that mean?
“But we have to go by the words of the law or there will be endless arguments about “what was meant” on every law.
The law doesn’t say “of course illegal aliens are not covered”
The court battle will not be fought out over the contents of the speech but the meaning of the phrase, I would think.”
Agreed. In fact, that phrase is found in Section 1 of the Amendment, and that Section is one of the most-litigated pieces of the 14th Amendment, and of the Constitution, according to Wikipedia.
“So when the speech-giver uttered the phrase:
“subject to their jurisdiction.”
What exactly did that mean?”
I’m confused, because as you already mentioned, the speech-giver clarified the speech-giver’s meaning in the latter part of his speech. We know what he was thinking. So is this about the letter of the law, or the content of the speech?
Johnny B.
It’s about the letter of the law. I know what was in the mind of the speechmaker. But that isn’t necessarily how a law is interpreted. We like it to be interpreted as written.
So what was the legal definition of “under the jurisdiction”? Not what did the speechmaker/lawmaker think it was.
But what does it actually mean?
How is the phrase interpreted in law?
This is the most contentious part of the amendment because it is so open to interpretation, especially a modern one.
Don’t we consider the entire world subject to our jurisdiction on some matters? If we took the position the because someone was on American soil and subject to our laws at the time, then it opens up an interpretation that anywhere our jurisdiction exists makes babies American. I am sure some people are fine with this.
Wasn’t this part of the debate about whether or not McCain was a citizen?
I’ll just point out that if I just want to work in the UK, whoever my employer would be would first have to show that the work I could provide was not already available within country. Citizenry is another issue, and it didn’t seem like a simple thing for Meghan Merkle. Her potential spouse had to show a certain amount of income or savings. She had to be able to speak English and she had to marry within 6 months. The application for citizenship costs over 1000 GBP which doesn’t cover the 50 GBP required citizenship test.
Yet the US is considered evil if it even considers that it requires a little more than crossing the border illegally and birthing a baby to gain citizenship.
It all makes sense when you understand that the democrat party takes a position for the advantage of the moment. There is no deeper principle. Consistency with previous positions, or positions held on other issues is not to be considered for them.
And the advantage of the moment is current democrat feels is flooding the nation with people who don’t share our values.
Consistency with previous positions, or positions held on other issues is not to be considered for them.
Well, they are the party of women. /snickers
Its just a joke people. You could swap the sexes and it would still be true but not as funny.
Well the whole immigration pile of laws is a mess and needs to be simplified.
I’d start with this one:
There was question as to whether or not McCain was a US citizen because he was born outside of the US.
It seems to me that if you have a married couple – both US citizens – and one is pregnant, and that couple goes on vacation in, say, France, and the child is born while on vacation, there should be absolutely zero question but that the child is a US citizen.
And yet I get the sense that this is not the case. Tho perhaps I’m mistaken.
Likewise, a married Honduran couple comes to the United States and has a child; I think it is sad that Democrats would then insist that child is now American and not Honduran. Why not let that child return home with his parents and live in the nation of his family? There is nothing great about America, so why are we taking infants from other nations and forcing them to be Americans?
So to prevent birthright citizenship with out changing the constitutions, Trump arguing the US has no jurisdiction over illegals inside it borders so there children can’t be citizen ? So then we can’t deport the illegals once there here and they can’t be held accountable by our laws either, since United States has no jurisdiction over them essentially diplomatic immunity for all illegals?
How do I signed up to be a illegal?
And once again COMPLETELY missing the thrust of the argument. I have to think it’s deliberate.
Right back at you P at least mine has substance your is just hot air.
Unless you want to enlightened me what the thrust of the argument, if it you want the US to have control over the citizenship. Then it should be done with the Right process not expediency or fiat to keep both sides honest. The amendment clearly states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. ” So to claim someone born here is not a citizen also makes them outside the Jurisdiction (Control) of the US government.
I am not the only one to make a similar augment someone much more erudite on the matter than myself. Who also happens to be appointed appellate judge by Trump
https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf
[Nor is being “subject to the jurisdiction” of the U.S.
limited to those who have always complied with U.S. law. Criminals cannot immunize themselves from prosecution by violating Title 18. Likewise, aliens cannot immunize themselves from U.S. law by entering our country in violation of Title 8. Indeed, illegal aliens are such because they are subject to U.S. law.”]
Evidently there is “territorial jurisdiction” – ambassadors can be arrested for speeding.
And then there’s “subject to US jurisdiction” which may mean something else. I found this article yesterday which helps with the definitions:
https://www.foxnews.com/opinion/trump-is-right-ending-birthright-citizenship-is-constitutional
“So then we can’t deport the illegals once there here and they can’t be held accountable by our laws either, since United States has no jurisdiction over them essentially diplomatic immunity for all illegals?”
If a foreign diplomat in the United States commits a crime like espionage or even murder he has diplomatic immunity; that is he can’t be arrested, charged, tried, convicted, & imprisoned. That is he isn’t subject to US jurisdiction. However Engineer he (and his family with him) can and probably very likely would be under the stated situation deported. So by your own argument the illegal and his kids birthed here or not could be deported.
Oh I am Familiar with Persona non Grata . But I don’t believe they forcibly deport them it pretty much they are told to leave and the Diplomat leaves and does not attempt to stay. Since the diplomat would be breaking a international treaty and the diplomat would be precipitation a international crisis they leave on free will. So yes the US can tell the illegal they are persona non grata but they can’t detain them so how do you force them to leave? Though who knows since Trump like to buck norms we may soon find out.
https://www.bbc.com/news/world-europe-43440882
[What happens when a diplomat is told to leave?
You leave, whenever the host country tells you to leave. Refusing to go is a breach of international treaties and could spark a major crisis.
“There’s no bucking that,” says Sir Christopher Meyer, former British ambassador to the US. “They have to meet our deadlines, we have to meet theirs.]
“But I don’t believe they forcibly deport them it pretty much they are told to leave and the Diplomat leaves and does not attempt to stay. Since the diplomat would be breaking a international treaty and the diplomat would be precipitation a international crisis they leave on free will.”
Come now I think you are being willfully obtuse Engineer; it is “voluntary” as long as they “willingly” leave. If they didn’t sure someone like the Justice Department would quickly show up to “help” him pack and generously give him a ride to the airport. After all are you saying if a Russian diplomat was caught spying (secretly a KGB assassin) he/she could upon being caught decide “No I am not leaving..too bad America”; and continuing spying/assassinating? Sure you know it doesn’t work that way. Trump’s brilliance is that he realized that apparently it hasn’t been argued in court what the “subject to jurisdiction” part in the 14th Amendment (and the 1952 immigration law having similar language) precisely means legally. Should be interesting to see how it plays out; especially when you consider the current more conservative SCOTUS is much more interested in the framer’s original intent when said statues were passed.
Ha I am Obtuse I present a article backing me up you create a straw man with no backing. How bout in your scenario look at the treaty that handles this scenario .
https://en.wikipedia.org/wiki/Vienna_Convention_on_Diplomatic_Relations
“”Article 9. The host nation at any time and for any reason can declare a particular member of the diplomatic staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity.””
So they lose diplomatic immunity and now are subject to the host nations jurisdiction. After which the host nation can do what ever they want to them with in the limits of the host states laws.
“” Trump’s brilliance is that he realized that apparently it hasn’t been argued in court what the “subject to jurisdiction” part in the 14th Amendment (and the 1952 immigration law having similar language) precisely means legally. .””
Trump brilliance must not be in reading or listening to people who read court law then.
http://cdn.loc.gov/service/ll/usrep/usrep457/usrep457202/usrep457202.pdf
“”Instead, use of the phrase “within its jurisdiction” confirms the understanding that the Fourteenth Amendment’s protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. Pp. 210-216″”
Maybe instead Trump in his brilliance should just call it a invasion and suspend Habeas Corpus while he at it . Yes that is a straw man unlike what Leland calling out.
Trump arguing the US has no jurisdiction over illegals inside it borders so there children can’t be citizen ?
That’s not Trump’s argument. That’s a strawman. Trump’s argument is the naturalization law for nearly every country in the Eastern Hemisphere. If you want to argue the definition of “jurisdiction”, so that you can misunderstand it; then I suggest you change your nom de plume to “Lawyer”.
How do I signed up to be a illegal?
Here you go.
“That’s not Trump’s argument. That’s a strawman. Trump’s argument is the naturalization law for nearly every country in the Eastern Hemisphere.”
Leland if that Trump argument then he need his party controlled congress to amend the constitution .
Right now he claims he can do it by executive order.
The 14th amendment birthright citizenship only has 1 condition to it .
.
Right now he claims he can do it by executive order.
He just said yesterday, “I’d rather do it through Congress because that’s permanent”.