The 14th Amendment

[Ibelsd]

Ok, so the 14th amendment has come up in this election cycle due to the debate on illegal immigration among the GOP candidates. I have made mention of this amendment several times on this website and most of you probably know where I stand. However, I have always been under the belief that the anchor baby issue which arises due to the interpretation of the 14th amendment was settled law. That it would take a Constitutional amendment to get rid of the anchor baby problem. Recently, though, there has been an argument that the 14th amendment already clearly forbids anchor babies.

Here is the relevant section of the article:
"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So, we have the law which appears to grant citizenship to anyone born in the U.S. However, they must be subject to the jurisdiction of the U.S. What does this mean? It means the person must be subject to the laws of the U.S. This is a gray area and certainly debatable. Is jurisdiction a matter of geography or citizenship/legal residency? Well, we have a clue from the author of the bill:

Senator Jacob Howard said,
"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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

How important is the actual intent vs. the wording if that wording may be confusing or problematic? Let's consider the recent case of the ACA.
"The court agreed that that was the only way the law would work and that, although the legislation’s wording was problematic, Congress’s intent was clear."
http://www.washingtonpost.com/politi...d8a_story.html

In my estimation, we can fix the anchor baby issue, and a large component of our immigration problem in the U.S. if the Congress would simply make the law to forbid anchor baby citizenship. What is preventing this from occurring and/or am I missing something else related to the 14th amendment which would prevent this seemingly simple action by Congress?

[CowboyX]

What does not under the jurisdiction of the law mean? Can I kill someone here illegally and not be punished for it? Could they do the same to me and just leave?

[Ibelsd]

What does not under the jurisdiction of the law mean? Can I kill someone here illegally and not be punished for it? Could they do the same to me and just leave?

I believe it means, under the protection of U.S. law. I am not a lawyer. However, it seems to be different than simply saying within the U.S. borders. I am basing this, partly, on the quote from the Senator who wrote the law. If you have an alternative explanation, I am all ears.

[mican333]

What does not under the jurisdiction of the law mean? Can I kill someone here illegally and not be punished for it? Could they do the same to me and just leave?

I just heard that question on NPR. It does mean that to some extent. While probably not murder, it appears that some crimes are not punishable crimes for foreigners.

As a fictional example, I recall the South African bad guys in Lethal Weapon 2 saying "Diplomatic Immunity!".

Or the Swiss Banker in The Wolf of Wall Street saying that the Swiss only have to act on financial crimes if it's a crime in their country.

I don't have much detail but I think that is the case to some extent.

[theophilus]

As a fictional example, I recall the South African bad guys in Lethal Weapon 2 saying "Diplomatic Immunity!"

The only people living in the US who can't be prosecuted for crime are those who have diplomatic immunity. I suppose this immunity applies not only to the diplomats themselves but to their families. If a child is born into such a family then he would not be an American citizen.

There is no way to keep a child born in the US from being a citizen without amending the Constitution but it should be possible to prevent his parents from using his citizenship to gain entry to the US. If this happened it would be necessary for the child to wait until he was an adult before he could enter exercise his rights of citizenship.

[Sigfried]

Frankly I still don't see this as a problem. The US population is not on some kind of explosion path, nor do I care if our citizens are born with brown skin or white skin, nor do I think who your parents are determine whether you are worthy to be a citizen or not.

[CowboyX]

Who is granting newborn babies diplomatic immunity?

The intent, and brilliance, of that clause was to prevent a permanent under class from ever developing again. The chain is broken with the succeeding generation and it has worked perfectly.

I can't think of anywhere you'd travel where you wouldn't be subject to the host country's laws. How would that happen?

[Ibelsd]

Frankly I still don't see this as a problem. The US population is not on some kind of explosion path, nor do I care if our citizens are born with brown skin or white skin, nor do I think who your parents are determine whether you are worthy to be a citizen or not.

Frankly your opinion of whether you think its a problem is totally irrelevant to the topic.

---------- Post added at 07:48 AM ---------- Previous post was at 07:45 AM ----------

Who is granting newborn babies diplomatic immunity?

The intent, and brilliance, of that clause was to prevent a permanent under class from ever developing again. The chain is broken with the succeeding generation and it has worked perfectly.

I can't think of anywhere you'd travel where you wouldn't be subject to the host country's laws. How would that happen?

You claim intent. Please support or retract the amendment's intent was to prevent a permanent under class. Also, how does your opinion of jurisdiction agree with the bill's author's explanation which I provided in the OP.

[CowboyX]

You claim intent. Please support or retract the amendment's intent was to prevent a permanent under class. Also, how does your opinion of jurisdiction agree with the bill's author's explanation which I provided in the OP.

"All persons born or naturalized in the United States..." emphasis mine

It isn't "All former slaves" - which it would have been if the intention was to only make citizens of freed blacks...a one-time solution to the problem and then that's it. It continues without generational or time limits always preventing what happened before, a permanent, self-sustaining under class. It makes class and caste designations impossible.

I imagine he is talking about those foreigners who are born under the jurisdiction of other countries...those with inherited titles and ranks. Just any 'ole baby doesn't have those. That he mentions them in the same sentence as ambassadors is a clue to that, they were more prevalent then also.

[Ibelsd]

"All persons born or naturalized in the United States..." emphasis mine

It isn't "All former slaves" - which it would have been if the intention was to only make citizens of freed blacks...a one-time solution to the problem and then that's it. It continues without generational or time limits always preventing what happened before, a permanent, self-sustaining under class. It makes class and caste designations impossible.

I imagine he is talking about those foreigners who are born under the jurisdiction of other countries...those with inherited titles and ranks. Just any 'ole baby doesn't have those. That he mentions them in the same sentence as ambassadors is a clue to that, they were more prevalent then also.

You don't really need to imagine as the author lays it out quite clearly:
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.


Now, I know you'll make the grammatical mistake of parsing this sentence to fit your argument, so let me simply nip this in the bud.
Due to the placement of the commas, the sentence could be parsed as three independent sentences
1. This will not, of course include persons born in the U.S. who are foreigners.
2. This will not... who are aliens.
3. This will not... who belong to the families...

He is saying persons born to foreigners should not be granted automatic citizenship. This would seemingly include anchor babies. I think one thing to remember is that the 14th amendment was written hastily. It is widely regarded as poorly worded which is why the author's intent matters here.

The very definition of alien supports this:
"a foreigner, especially one who is not a naturalized citizen of the country where they are living."

In your rebuttal, you make the classic mistake of quoting the first part of the amendment while leaving the second part unresolved. Again, based on the author's quote, you cannot make the claim that the intent of the amendment was in preventing some sort of under class. So, again, I challenge you to support your claim or retract it. If all you can do is quote a portion of the amendment, then I'll consider this claim unsupported.

I'll be honest here Cowboy, your appeal just seems largely emotional. I created this OP out of curiosity on the question of jurisdiction and precedent. You have kind of just argued based on your own personal views and ideology. I am not looking for an ideological argument here. I believe the author's intent is pretty clear. No automatic birth citizenship. However, if you have info on precedent with regards to this amendment or with jurisdiction, then I am interested.

[CowboyX]

He is saying persons born to foreigners should not be granted automatic citizenship.

No, he does not say that at all. He says people born as foreigners. For example, a person born in the U.S. with an inherited title in europe would be a foreigner.

[Ibelsd]

No, he does not say that at all. He says people born as foreigners. For example, a person born in the U.S. with an inherited title in europe would be a foreigner.

I rebutted your argument before you even wrote it (see my previous post). Your insistence on your interpretation offers no explanation why it is better than mine. You just sort of say, uh-uh. So, unless you can offer some compelling reason, I am just going to regard this as nothing more than your unsubstantiated opinion and without warrant for further rebuttal.

[CowboyX]

My interpretation jives with the Supreme Courts ruling on the matter, yours does not.

[Ibelsd]

My interpretation jives with the Supreme Courts ruling on the matter, yours does not.

Please cite me the SCOTUS ruling which serves to interpret Howard's quote. You can consider this a formal challenge. Either produce the ruling with the explanation from the majority opinion that supports your claim or withdraw your claim.

[CowboyX]

https://supreme.justia.com/cases/fed...s/169/649/#715

"That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento Street, in the city and county of San Francisco, State of California, United States of America, and

Page 169 U. S. 651

that his mother and father were persons of Chinese descent and subjects of the Emperor of China, and that said Wong Kim Ark was and is a laborer." emphasis mine


Wong Kim Ark, on the other hand, was not.


Wong Kim Ark, 169 U.S. at 705. "The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."

[Ibelsd]

https://supreme.justia.com/cases/fed...s/169/649/#715

"That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento Street, in the city and county of San Francisco, State of California, United States of America, and

Page 169 U. S. 651

that his mother and father were persons of Chinese descent and subjects of the Emperor of China, and that said Wong Kim Ark was and is a laborer." emphasis mine


Wong Kim Ark, on the other hand, was not.


Wong Kim Ark, 169 U.S. at 705. "The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."

Interesting case. However, it does not address the court's belief regarding Howard's statement. That was your claim and this case, while supporting the overall position of birth-right citizenship, does not support the specific claim challenged by me. So, I am still waiting for support to your claim or you may withdraw your claim.

Aside from Wilson's actual intent, I am curious about whether an amendment would actually be required to end birthright citizenship and the case you provided is interesting since it does offer precedence to the question. It does not mean future courts could not decide to overturn this decision, so it would be rash to consider the issue decided. Like I said, I am more interested in hearing reasoned legal opinion, than ideological viewpoint. So, I am wondering, how does the court reconcile Congress' right to establish rules of citizenship with the seemingly guaranteed right for those born here to illegal residents. I am also wondering whether courts would be willing, as has happened often recently, to reassess the Constitution since the immigration issue has changed since the turn of the century. Aren't progressives telling us that the Constitution is a living, breathing document? If so, then reassessing previous rulings in order to address modern needs shouldn't be problematic.

Thanks for the court case though since that is more the direction I was hoping this thread would take.

[CowboyX]

That what you claimed, "He is saying persons born to foreigners should not be granted automatic citizenship." in post 10 as what Howard meant is certainly at odds with that decision.

His parents were subjects of the Emperor, yes, but they held no diplomatic position or titles that could be transferred to the child, therefore, he was not born as a foreigner...just as Howard put it.

[Ibelsd]

That what you claimed, "He is saying persons born to foreigners should not be granted automatic citizenship." in post 10 as what Howard meant is certainly at odds with that decision.

His parents were subjects of the Emperor, yes, but they held no diplomatic position or titles that could be transferred to the child, therefore, he was not born as a foreigner...just as Howard put it.

The court made a decision but spoke nothing specifically of his statement. We do not know whether the author's intent was considered at all, let alone, directly referenced. You are just making an assumption.

[CowboyX]

The court made a decision but spoke nothing specifically of his statement. We do not know whether the author's intent was considered at all, let alone, directly referenced. You are just making an assumption.

I'm not about to read the entire decision? Have you? It is clear that they agreed that the law says as foreigners not to foreigners as was your interpretation (what you based that interpretation on was never supported).

Unless you've discovered some mean of reading a dead man's mind, we'll have to go off of what he wrote. Do you have anything else from him on this subject?

[Ibelsd]

I'm not about to read the entire decision? Have you? It is clear that they agreed that the law says as foreigners not to foreigners as was your interpretation (what you based that interpretation on was never supported).

Unless you've discovered some mean of reading a dead man's mind, we'll have to go off of what he wrote. Do you have anything else from him on this subject?

1. You can either support your claim or you cannot. Right now, you are conceding that you cannot.
2. The case you are referencing dealt with an immigrant here legally. The SCOTUS has not made a decision, to my knowledge, which decides the 14th amendment for illegal immigration.

Since the case does not apply to illegal immigration, we cannot infer that the court interpreted Howard's statement in the manner you suggested. Any attempt to do so would be purely speculative. Hence, I am of the belief that the issue of the 14th amendment, as it relates, to those here illegally, is not settled law. I am of the belief, unless you or someone else can offer something else, that Howard's explanation of the 14th amendment may be interpreted to exclude those here illegally. I say, "may" since any court could offer an interpretation different than my own. At this time, though, no such interpretation exists. As such, it would seem reasonable to suggest we can end birthright citizenship for illegal aliens without changing the 14th amendment. Whether this holds up in the courts will be interesting.