The First 100 days

[Mr. Deez]

If what you're saying is true, then it should also apply to vacationers, diplomats, children of enemy combatants, etc... It's never llbeen taken to mean that, from what I've heard. No one would argue that a diplomat on U.S. soil can now have a child in the U.S. and have the kid be declared a citizen.

That's the whole point. A diplomat isn't subject to US jurisdiction. Vacationers are.

In addition, the illegal immigrant is still "subject to the jurisdiction" of his home country. And no, he is not "subject" to our jurisdiction. He is here illegally, and very much NOT subject to our laws. The problem is that it's an ambiguous statement that can be interpreted differently. But the quote above clearly indicates the intent.

You can be subject to more than one jurisdiction at a time. Do you understand what "jurisdiction" means? If a nation doesn't have jurisdiction over somebody, its courts have no authority to do anything to him - not because the laws don't apply to him but because the courts have no authority over him. Nobody intended to create a loophole that big. We do it for diplomats, whom we can expel at any time. We would not do that for just any schmuck who happens to show up in our country but doesn't happen to be a citizen.

The Citizenship Clause of the 14th Amendment 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 where they reside.”

By its own terms, the language in the amendment precludes the notion of universal automatic birthright citizenship. It would have been quite simple for the language to exclude “and subject to the jurisdiction thereof” to accomplish the goal of bestowing citizenship on any child born in the United States no matter the status of their parents. The 14th Amendment’s addition of a jurisdictional requirement to the territorial requirement, however, denies any interpretation that birth alone grants citizenship.

You're right. Birth alone doesn't grant citizenship. Nobody's arguing that it does.

During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:

“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]

First, re-read that sentence. It's not as clear as you think. Second, if you're a strict constructionist, you interpret a law as it's written, not as one member described it. That's why Antonin Scalia wasn't a fan of stuff like this. It's the word of one legislator, when the goal is to ascertain the intent of the legislature, not one guy.

In the Slaughter-House Cases of 1873, the Supreme Court said, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Two points. First, this is obiter dictum (meaning it was a passing comment, not an actual legal ruling on the issue before the Court). Second, the Court directly ruled contrary to this in a subsequent case called US v. Wong Kim Ark. In that case, the Court granted citizenship to someone born in the US to Chinese nationals. They were not illegal aliens, but they were citizens of and owed allegiance to a foreign state.

 

[nashhorn]

Birth alone doesn't grant citizenship. Nobody's arguing that it does

Got me there, I thought that was exactly what is being argued.

And I think it's key that the case you cited was NOT illegals.

 

[Garmel]

That's the whole point. A diplomat isn't subject to US jurisdiction. Vacationers are.



You can be subject to more than one jurisdiction at a time. Do you understand what "jurisdiction" means? If a nation doesn't have jurisdiction over somebody, its courts have no authority to do anything to him - not because the laws don't apply to him but because the courts have no authority over him. Nobody intended to create a loophole that big. We do it for diplomats, whom we can expel at any time. We would not do that for just any schmuck who happens to show up in our country but doesn't happen to be a citizen.



You're right. Birth alone doesn't grant citizenship. Nobody's arguing that it does.



First, re-read that sentence. It's not as clear as you think. Second, if you're a strict constructionist, you interpret a law as it's written, not as one member described it. That's why Antonin Scalia wasn't a fan of stuff like this. It's the word of one legislator, when the goal is to ascertain the intent of the legislature, not one guy.



Two points. First, this is obiter dictum (meaning it was a passing comment, not an actual legal ruling on the issue before the Court). Second, the Court directly ruled contrary to this in a subsequent case called US v. Wong Kim Ark. In that case, the Court granted citizenship to someone born in the US to Chinese nationals. They were not illegal aliens, but they were citizens of and owed allegiance to a foreign state.

Does the word "jurisdiction" mean the same now as it did in the 1860s? Honest question. Libs get hung up on the word "regulated" in the 2nd amendment which meant something different in the 18th century than now. Besides, we know for a fact what the writers of the 14th amendment meant with their very own words- children of illegals are not included.

 

[Horn6721]

This is the funniest 2.5-3 min vid EVAH. Worth watching

 

[Joe Fan]

MBGA

Bolsonaro announced Brazil will move its embassy to Jerusalem.

 

[Mr. Deez]

Does the word "jurisdiction" mean the same now as it did in the 1860s? Honest question.

That's a fair question. I don't have a law dictionary from the 1860s, but I've read jurisdiction cases from that era, and the courts applied the term basically as it is today. I'm not saying that jurisdiction law was the same, but the word itself was had the same implications as it has today. It involved the power of a government (through its courts) to exercise its authority over a person (in personam), property (in rem), or issue (subject matter).

Libs get hung up on the word "regulated" in the 2nd amendment which meant something different in the 18th century than now.

This is true, though the bigger error is in how they interpret "regulate" in the interstate commerce clause. They almost give it the opposite meaning of what was intended.

But liberals don't think they should be limited by what lawmakers meant when they wrote the Constitution or what words they used. That's why I told Husker that if we applied the Constitution as liberal judges do, the EO would be much easier to defend. We could simply "interpret" the 14th Amendment in light of modern "trends," "mores," and "values." That makes it a subjective inquiry because we get to pick and choose what trends, mores, and values we deem appropriate and make the 14th Amendment mean anything we want.

Besides, we know for a fact what the writers of the 14th amendment meant with their very own words- children of illegals are not included.

We don't know that. In fact, they granted citizenship to the children of people who were illegally brought into the US as slaves, and as I mentioned earlier, the Court granted citizenship to people who were born in the US to foreign nationals. The point is that neither illegality of the parents' presence in the US nor their citizenship with a foreign nation made a difference.

 

[Garmel]

We don't know that. In fact, they granted citizenship to the children of people who were illegally brought into the US as slaves, and as I mentioned earlier, the Court granted citizenship to people who were born in the US to foreign nationals. The point is that neither illegality of the parents' presence in the US nor their citizenship with a foreign nation made a difference.

Jacob Howard made it clear what it meant. The courts were wrong and it needs to be corrected.

 

[Mr. Deez]

Jacob Howard made it clear what it meant.

Again, he really didn't.

The courts were wrong and it needs to be corrected.

They weren't, and they won't change anything for a few reasons. First, to reach the conclusion you're advocating, they'd have to interpret the word "jurisdiction" in a way that they haven't interpreted it in over 225 years. Not likely to happen. Second, it's going to be hard for the government to argue that illegal immigrants are outside their jurisdiction when they've never treated them as though they were outside their jurisdiction. Third, even if they buy your interpretation of Senator Howard's remarks (which isn't certain), conservative jurists aren't particularly deferential to one legislator's remarks. They're interested in the intent of the body at large, not one legislator, and they usually determine that from the words used, not legislative history.

 

[VYFan]

Well, it would never end: what was being said on the floors of the (36) state legislatures as they debated whether to ratify?

 

[Garmel]

Again, he really didn't.



They weren't, and they won't change anything for a few reasons. First, to reach the conclusion you're advocating, they'd have to interpret the word "jurisdiction" in a way that they haven't interpreted it in over 225 years. Not likely to happen. Second, it's going to be hard for the government to argue that illegal immigrants are outside their jurisdiction when they've never treated them as though they were outside their jurisdiction. Third, even if they buy your interpretation of Senator Howard's remarks (which isn't certain), conservative jurists aren't particularly deferential to one legislator's remarks. They're interested in the intent of the body at large, not one legislator, and they usually determine that from the words used, not legislative history.

He's the one that created the amendment so his opinion is extremely important. I really don't know how much clearer Howard can get. Come on, Deez. You sound like you're thinking with your emotions than your brain. The Supreme Court ignored the original meaning of the amendment and overstepped their authority. There are lawyers that agree with me on this.

 

[ProdigalHorn]

If a nation doesn't have jurisdiction over somebody, its courts have no authority to do anything to him - not because the laws don't apply to him but because the courts have no authority over him.

Except that they aren't fully subject. The law differentiates between a citizen and a visitor, and particularly one who is here illegally. That visitor that comes here is still subject to laws in his own country. He's still a citizen there. We can't draft a non-citizen, because he's not subject to that law. The laws that impact him are laws that are conditions of him remaining in the country (assuming he's here legally.) The visitor can be deported. So yes, the court has authority but only in regards to the mutual agreement that the person is allowed to stay in the country under certain circumstances, among which obviously are abiding by our laws. Once he walks over to the embassy, basically it's up to the discretion of that other country on whether we can touch him at all, isn't that the case? (Maybe movies and TV have lied to me on that point.)

Regardless, it's clear that this was not the intent and I'm surprised you're pushing for it.

 

[Mr. Deez]

He's the one that created the amendment so his opinion is extremely important.

Hate to break it to you, but that doesn't make his opinion important. The intent of the legislature is what matters, not the intent of one member, even if he wrote the language in question. And we judge the intent of the legislature first and foremost by the words they choose to use. As Justice Scalia put it, "The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators." (Note - the term "legislative history" means extratextual information like legislative reports, speeches, etc. that discuss the legislation.)

I really don't know how much clearer Howard can get.

Re-read it carefully. Don't slop through it.

Come on, Deez. You sound like you're thinking with your emotions than your brain.

My emotions? Did you read my initial comment on this issue? I'm against birthright citizenship. It's bad policy, and though Trump wasn't right that we're the only country to do it, we're one of very few among developed, Western countries. It's sstupid. If I have a bias or emotional angle here it is in favor of the EO, not against.

The Supreme Court ignored the original meaning of the amendment and overstepped their authority. There are lawyers that agree with me on this.

You can find lawyers who agree with anything you want. I don't claim to speak for all lawyers, though I probably do speak for 98 percent of them on this issue and probably 95 percent of conservative lawyers.

Also, bear in mind that the Wong Kim Ark case was decided close to the same time that Plessy v. Ferguson was handed down. It wasn't done by some activist liberal Court.

 

[Mr. Deez]

(Maybe movies and TV have lied to me on that point.)

You value your perception of what you see in movies and on TV over the word of a professional in the field? Do you consult episodes of ER to make sure your doctor is right? TV and the movies are scripted for your entertainment. Raymond Burr was a good actor and Perry Mason was a good show, but he didn't really represent people in court. I did. He's fake. I'm real.

Except that they aren't fully subject. The law differentiates between a citizen and a visitor, and particularly one who is here illegally. That visitor that comes here is still subject to laws in his own country.

Again, you don't know what jurisdiction is. It's about authority over someone, not what laws Congress chooses to apply to that person. You can be subject to your home country's laws and the laws of the country you're visiting. If a citizen of Mexico visits the US (legally or illegally) and he rapes somebody, he will be charged in a US state court, under US law, because he is subject to US jurisdiction.

We can't draft a non-citizen, because he's not subject to that law.

We don't draft noncitizens because we choose not to. We could draft them though, and that's the point.

The laws that impact him are laws that are conditions of him remaining in the country (assuming he's here legally.)

Not so.

The visitor can be deported.

Yes, but that doesn't mean we don't have jurisdiction over him.

So yes, the court has authority but only in regards to the mutual agreement that the person is allowed to stay in the country under certain circumstances, among which obviously are abiding by our laws.

Lol. We don't make "agreements" about our jurisdiction with mere visitors. When you visit the US legally or otherwise, you're expected to follow US laws and can be prosecuted under US jurisdiction if you break them. You might also get deported, but that doesn't diminish our jurisdiction to prosecute you.

 

[Garmel]

You value your perception of what you see in movies and on TV over the word of a professional in the field? Do you consult episodes of ER to make sure your doctor is right? TV and the movies are scripted for your entertainment. Raymond Burr was a good actor and Perry Mason was a good show, but he didn't really represent people in court. I did. He's fake. I'm real.



Again, you don't know what jurisdiction is. It's about authority over someone, not what laws Congress chooses to apply to that person. You can be subject to your home country's laws and the laws of the country you're visiting. If a citizen of Mexico visits the US (legally or illegally) and he rapes somebody, he will be charged in a US state court, under US law, because he is subject to US jurisdiction.



We don't draft noncitizens because we choose not to. We could draft them though, and that's the point.



Not so.



Yes, but that doesn't mean we don't have jurisdiction over him.



Lol. We don't make "agreements" about our jurisdiction with mere visitors. When you visit the US legally or otherwise, you're expected to follow US laws and can be prosecuted under US jurisdiction if you break them. You might also get deported, but that doesn't diminish our jurisdiction to prosecute you.

Maybe I missed it but what do you think the word "jurisdiction" means in the original amendment? Why was it put there?

 

[VYFan]

I’m not able to try to support this, but “subject to our jurisdiction” could mean as simple as “as opposed to subject to France’s jurisdiction” in a binary way, not down to the modern technicality that would let us enforce a criminal statute against a legal or illegal alien.

The idea being to catch people already in our territory who have no current connection to wherever their families originated, whether China, Congo, Native American or whatever.

 

[ProdigalHorn]

You value your perception of what you see in movies and on TV over the word of a professional in the field? Do you consult episodes of ER to make sure your doctor is right? TV and the movies are scripted for your entertainment. Raymond Burr was a good actor and Perry Mason was a good show, but he didn't really represent people in court. I did. He's fake. I'm real.

I was kidding, but in any case, the comment had to do with the concept of a foreigner being beyond extradition in his country's embassy. is that false?

 

[Garmel]

A good article on what we're talking about here. Birthright Citizenship Is Not Constitutionally Required | National Review

 

[Mr. Deez]

Maybe I missed it but what do you think the word "jurisdiction" means in the original amendment?

I think it means what it meant in other contexts, which is the authority to enforce laws on somebody.

Why was it put there?

It's obviously there to exclude from birthright citizenship people who aren't subject to US jurisdiction.

 

[Mr. Deez]

I was kidding, but in any case, the comment had to do with the concept of a foreigner being beyond extradition in his country's embassy. is that false?

I've never heard that before, and frankly it doesn't make sense. Suppose a Mexican national is in the United States and wanted in Mexico for a crime. If he goes to the Mexican embassy in the United States, he's within Mexican jurisdiction at that point. They can arrest him on site. They don't have to ask the US to extradite him.

 

[bystander]

I supposed even a baby is as subject to our jurisdiction as a tourist.

 

[Horn6721]

GamelThat link rea.ly explained it really well historically and in current context.
Thank you.

 

[Mr. Deez]

A good article on what we're talking about here. Birthright Citizenship Is Not Constitutionally Required | National Review

It's very good at shuckin' and jiving on the issue. He has some interesting historic information, but he's bringing up a lot of irrelevant points and coming up with reasons why we should infer qualifiers and language into the 14th Amendment that simply aren't there.

First, he goes on about Elk v. Wilkins and how the Amendment requires "complete jurisdiction." Maybe the 14th Amendment should require complete jurisdiction, but it doesn't. In fact, it puts no qualifier on it. It's using the term just like it's used in any other context. Liberal judges do that sort of thing - "the lawmakers said X, but they meant Y or certainly would have if they knew what we know, so let's pretend they said Y." Textualists don't do that.

Second, he spends time talking about early naturalization laws and how immigrants became citizens in the 1790s. Those issues have absolutely nothing to do with the 14th Amendment and provide no context for the issue. Nobody's talking about anybody being naturalized. Naturalization is for people who are not born citizens. Completely separate issue. Furthermore, the 14th Amendment doesn't define immigration laws. It defines citizenship. They aren't the same issues. Immigration laws are an issue for the parents, not for the child who was just born in the US.

Third, he brings up the fact that the 14th Amendment was designed to protect former slaves and implies that it should essentially be limited to that class of citizens. Well, if that was the intent, then Congress could have worded the amendment accordingly. They chose to use language that was much broader, and there's no reason to pretend that they didn't. We may not like the result of that, but it's not our place to force the law to say something it doesn't say.

There's a lot more wrong with the article. I could pick apart half the sentences in it, but I haven't got time to get into it all.

 

[Garmel]

It's very good at shuckin' and jiving on the issue.

Nope. The author could be correct. I've seen law professors who agree with him. These professors are more knowledgeable than you. Regardless of what Scalia said original intent is important. If not lib judges would have weakened the 2nd amendment because some of what's in there could be construed in a different way. Before you say more lawyers are on your side I'm willing to bet more lawyers believe that abortion is settled law than not as well. The court did what they wanted to do there as well.

 

[mchammer]

Shucking and jiving considered racist now.

 

[Garmel]

Birthright Citizenship Is Not Actually in the Constitution - NYTimes.com

We have another drafter of the amendment who makes it clear what they meant:

"When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”

 

[VYFan]

Nope. The author could be correct. I've seen law professors who agree with him. These people are more knowledgeable than you. Regardless of what Scalia said original intent is important. If not lib judges would have weakened the 2nd amendment because some of what's in there could be construed in a different way. Before you say more lawyers are on your side I'm willing to bet more lawyers believe that abortion is settled law than not as well. The court did what they wanted to do there as well.

I’m not trying to take a position on your particular back and forth, but law professors are not more knowledgeable about law than real lawyers. Just like business professors don’t know more about business than actual businessmen.

 

[Garmel]

I’m not trying to take a position on your particular back and forth, but law professors are not more knowledgeable about law than real lawyers. Just like business professors don’t know more about business than actual businessmen.

I'm not sure the comparison fits here.

 

[VYFan]

I'm not sure the comparison fits here.

Well, set aside the comparison part; law professors are small fish in the law world compared to real lawyers.

BTW, not sure I ever mentioned this on HF but my Contracts professor in 1981 at UT Law School....which I “am jur’d”—highest grade.......Elizabeth Warren!

 

[VYFan]

Not sure why the wtf...

Two separate points, not related. First, the high-talent high- experience lawyers out in the real world are major step-ups in competition from law professors.

Second, it made me think of one of my first-year law professors, Elizabeth Warren, who was just starting out her career and was an associate professor on loan from UH I think for a semester. Since she is now somewhat famous, I just mentioned it. Not a fan of her current politics but she was a good professor. I am jur’d her class, which was just me bragging. Make sense now?

 

[mchammer]

Purely for the Warren connection. Everything else was understood