The first section of the 14th Amendment to the U.S. Constitution – one of the most important statements of equality and human rights ever enacted anywhere on this planet – reads as follows.
Section 1.
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.
But Jeff Perry, well, he doesn’t care for that kind of thing.
I support those in Congress who are considering a constitutional amendment that would end the practice of granting automatic U.S. citizenship to immigrant children who are born in this country. The concept of birthright citizenship encourages illegal immigration and removes incentives for people to pursue becoming an American citizen through legal means.
All due respect, Jeff, this is crazy talk. I know you’re Mr. Tough On Illegals and all. But the right way to address the immigration issue is with sensible legislative reforms, not reactionary and drastic changes to one of the most important constitutional provisions that sits at the very heart of our liberty. Heck, this proposal is even a bridge too far for our differently-winged friend Rob Eno, the proprietor of RMG, who in most other respects toes a pretty hard line on illegal immigration.
Bluster all you want about illegal immigration or whatever, Jeff. But don’t fuck with the Fourteenth.
…they tend to be all bluster, as shown by the following proposed amendments:
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p>To ban flag burning
To ban same-sex marriage
To require a balanced budget
To impose term limits
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p>and probably others I’m forgeting at the moment.
I really don’t think a balanced budget is a bad thing. I have to balance mine daily. Nobody “gives” me extra money.
Flag burning: Sorry, I’m not big on symbolism.
Same sex marriage: If it is so wonderful, why do we have to “legalize” it?
Term Limits: We have them, they’re called elections.
If so, you don’t balance your budget daily.
no car loan but a mortgage, and the principal portion sits on my balance sheet. the interest and principal due each month hit my income statement one of many expenses. When my revenues are exceeded by those expenses my budget is no longer in balance and i have two options, raise my revenues or reduce my expenses. Guess which one is easier to accomplish? No vacation this year, no big ticket items at Christmas, gotta tighten the belt.
Republicans, especially when seeking to take Congressional majorities. Remember 1994? We probably differ on whether we like that result, but I’m just pointing out that that’s how they worked then.
He is playing to his base, and using his typical low brow tactics. The 10th is a whopping 92% white, with Asians coming in a distant second (and they don’t turnout to vote in this district), so Perry is using the fear and dare I say the race card to energize and anger his already angry base. His campaign is the Illegal Immigration issue– because it is an easy issue to take on. Saying I am against illegal immigration is like saying I am against stealing– duh….
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p>This is a scary guy and that is why it is important to get behind a strong dem in the 10th (I think Keating is the guy who gives us the best shot)– This race is bigger than anyone candidate, it maybe a shift in power and if we are not careful Ma could have a more Texas Republican than most Texas Republicans…
Mr. Perry has a good idea. I vote we give everyone, native-born or not, a one-question citizenship test:
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p>Is human-caused global warming occurring? If you answer yes, you pass and you get to be a citizen. If you answer no, you don’t. This citizenship test would make us all better off, and Perry’s amendment would make it constitutional to administer this test.
Didn’t some news organization administer the citizenship test to native-borns a few years back, and the testees failed miserably? We native-born American citizens take our rights and privileges for granted, and yet people are still dying for those rights and privileges every day. And people are dying to get into the U.S. and gain some of those privileges (i.e., enough $ to feed their families), if not the rights.
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p>And the dirty little secret of the immigration “crisis” is that we as a society are benefitting from the presence of undocumented people here in the USA. They do the jobs we won’t do, simple as that. And the businesses and corporations that benefit by not having to pay fair wages, social security, health and life insurance premiums, etc., are the biggest winners of all. The demagoguery around this issue is disgusting.
And the “crisis” is just another wedge issue right wing political consultants have cooked up to divide white and brown working class voters.
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p>That said border security ought to be a bipartisan no brainer kind of issue, a lot of the horrible crime waves going on in the Northern Mexican states are pouring over into our border communities and making this situation even less likely to resolve in a reasonable, moderate, even tempered way. Instead whites in those communities think they are under attack, while in reality the whites and browns should unite against the drug lords who are just bad people entirely. But the AZ law will likely be used far more often on poor brown workers and not rich drug lords. That’s the big problem is getting these communities to come together to fight the actual criminals.
The “and” clause implies that not all people born or naturalized in the US are subject to the jurisdiction of the US. Who else could they have been talking about except the children of illegal aliens, who as far as the jurisdiction knows, are not even here?
…specifically with the Native population in mind. They were at the time considered only members of their tribes and part of their reservations. Since then other legislation has been passed giving them full citizenship so the point is now moot.
And Mr./Ms. Cute is entirely wrong to suggest that illegal aliens are not “subject to the jurisdiction thereof,” unless he/she thinks that they can’t be prosecuted for crimes they commit on US soil. And that would be a silly position.
Certainly Native Indians could be prosecuted for crimes they committed on US soil, right? So that proves being subject to arrest and prosecution does not make one “subject to the jurisdiction” of the US. Unless you think Native Indians were allowed to run around town stealing and killing and couldn’t be prosecuted, but that would be a silly position.
…but if they commit them in the reservation they are subject to tribal law. That is the difference. Reservations are a geographic distinction of jurisdiction that were set up in an effort to compensate for our history and the fact they were here first. David’s exactly right here and I’m pretty sure he’s a lawyer.
I’m saying personal jurisdiction is what keeps some people from being under the jurisdiction of the US even if they are physically in the territory of the US. People remain citizens of their home country even as they travel, and under their sovereign authority’s jurisdiction, regardless of their location. Of course they have to follow the local laws, just like everyone does, that goes without saying.
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p>And lawyers are the last people to ask about Constitutional law. Ask two lawyers, get two opinions, or, if they’re real pros, get no opinions, but never will you get one opinion.
…but I stand by my points regarding the intent of the 14th amendment and the inclusion of the words in question.
In 1865, not subject to US jurisdiction, notwithstanding a crime committed on a reservation, which was indeed US soil.
that not all people born or naturalized in the US are subject to the jurisdiction of the US, the “and” clause in the 14th Amendment proves that. Yes, Native Indians were certainly among that group, but if that was all, why not just say so? I think foreign nationals are not under the jurisdiction of the US, they remain foreign nationals.
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p>I’d go even further than this Amendment and only give citizenship to children of citizens, not foreign nationals here legally.
…you’ve rendered a very tortured reading of the US Constitution. I’m pretty sure both legislative intent and case law are on my side here. Native Americans have been treated differently than other groups from the getgo; sometimes to their benefit and sometimes to their detriment. It doesn’t work to try to ascribe the same standards to foreign nationals. If you are born here you are a citizen, both constitutionally and on the merits. Anything else would be immoral IMO.
And for the right to be proposing this shows that they definitely talk out of their asses when they claim to be textualists and adhere to the original intent of the framers. Stripping people of their birthright citizenship retroactively and because of crimes their parents committed is something King George, not George Washington, would approve of. This proposal is simply un-American.
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p>The Jeff Perrys and Pat Buchannans of the world can fantasize all they want about this nation being a compact of white, Judeo-Christian men, but in reality it was a nation that was always founded primarily to be a beacon of liberty to everyone on the planet. In that sense we really are not a ‘nation’ in the sense that we are a people that share the same blood, but a nation in the sense that we all are abiding by and agreeing to the social contracts that our state and federal government bind us to, particularly the Constitution. I also believe the aftermath of the civil war decisively settled the question of whether or not we were a nation of ALL people, or a nation simply of white people that owned property. To channel Clarence Thomas for a second, the founders would not have adopted broad, universalist, enlightenment phrases and tones within the language of the founding era if they did not actually mean for these laws to be broad, universal, and enlightened. The Arizona law and Perry’s proposal are none of those things. John Kyl can get away with saying that in AZ, but I expected better of someone from MA, even a conservative.
We follow Montesquieu, Rousseau, Voltaire, and Jefferson. We do not follow Fichte, Herder, or Nietzsche, our national compact is clearly a product of the Enlightenment.
See U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (person born in the U.S. to parents who were Chinese subjects at the time of his birth was a U.S. citizen by virtue of the 14th Amendment).
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p>TedF
I agree with the dissent on that case, which has clearly set a bad precedent. Thanks for bringing it to our attention, it is certainly the relevant case. I think it is tainted as far as precedent goes by the specifics of the case, because the law singled out Chinese, and the court emphasized how the parentsh were on their way toward naturalizing while they were here. That explains how the right decision wound up being a dissent.
Feel free to disagree with the law all you like, but it would probably be a good idea to find out what the law is, by asking or reading, before giving your opinion. I took the time to respond to your post because you were incorrectly presenting your opinion of what the law ought to be as the law itself.
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p>TedF
Currently, we know that the 14th Amendment is interpreted to give people citizenship if they were born here. I don’t think that is the correct interpretation. and that precedent is badly in need of reversal.
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p>I appreciate your taking time to respond with that case. Don’t incorrectly assume that “what the law is” is what the law ought to be or will be, especially when we are talking about constitutional interpretation.
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p>This proposal does not ‘clarify’ or ‘reinterpret’ the 14th Amendment it essentially nullifies and guts it. It restores the Dred Scott decision to primacy with questions of citizenship and opens the door to all kinds of selective qualifications for citizenship, be they religious, racial, ethnic, or otherwise. Every American would lose if this proposal passed and a key amendment, one several justices, especially Hugo Black, consider as important as any of the Bill of Rights, would be rendered impotent and dead.
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p>It is laughable that the right claims sole monopoly on originalism and textualism, this proposal is clearly the living constitution at its worse, broadly altering an entire amendment and body of judicial precedence to meet a short term practical crisis. Thats the same kind of judicial expediency conservative legal scholars condemn in decisions such as Roe, yet now they are conveniently adopting it for a decision they favor. I am really getting sick and tired of these outcome based justifications for broad changes to the laws of this republic, changes that neither the sponsors or detractors can fully appreciate what horrible consequences they might reap.
This proposal is essentially giving Congress carte blanche to redefine citizenship as it sees fit, whenever it wants. Whats to stop a Republican or even a Democratic supermajority from simply nullifying the citizenship of its political opponents? This kind of farce is fitting for a banana republic, not our august one.
Countries many times older than America do not give citizenship to children of foreigners, let alone illegal aliens. For example, let’s start with perhaps the oldest country in the world, Egypt:
That is from this handy list
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p>Basically, the only countries that give citizenship to people born in their territory are the ones that are or were desperate for occupying their expanding territory or wanted to profit from cheap labor and more consumers, or who are afraid of losing population, like France.
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p>Maybe some of them had a devotion to the ideal of equality?
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p>TedF
They just wanted more population, and if there was any propagandistic value in being able to claim some righteous democratic perfection to justify further imperialism, well that was just a bonus.
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p>If they had a devotion to the idea of equality, why limit equality to people who were born in US territory? What about all the people who were two or five or twenty when they got here? And, we really DO do that, we have very lax immigration and naturalization rules that are almost automatic, to steal people from other countries.
You seem to say things that I find it hard to believe you believe. Do you really think the Fourteenth Amendment’s purpose was about cheap immigrant labor rather than about overruling Dred Scott and guaranteeing civil rights for the newly freed African Americans?
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p>
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p>Afroyim v. Rusk, 387 U.S. 253, 262-63 (1967) (footnote omitted).
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p>TedF
It was the purpose of the policy after the Ark case you directed me to. That was at a time when the US was looking for cheap labor and population to expand westward, and the Statue of Liberty (1886), Ellis Island (1892), etc. The 14th Amendment (1868) was intended to ensure that former slaves were not rendered stateless or declared to be citizens of their country of origin, it wasn’t intended to increase immigration or make citizens out of the children of foreign nationals.
The whole point of the discussion in Wong that I quoted is to try to figure out what the framers of the Amendment were thinking in 1868.
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p>TedF
The framers of the 14th should have removed the “and subject to the jurisdiction thereof” clause entirely, if all they wanted was “all people born in US territory”. The fact that they left it in shows that they still believed that some people born here are not subject to the jurisdiction. They should have left the language as it was in the Civil Rights Act, but I think the change was done to make it more all-encompassing, not to ditch the intent of the Civil Rights Act language.
As between his interpretation of what he meant and your interpretation of what he meant, I’ll stick with him.
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p>TedF
to mean children of foreign citizens were American jus soli.
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p>I really find it hard to believe that anyone intended to create a situation where a French person raised in France by French parents with French values was more eligible than an American person raised in America by Americans to be President merely because of where they happened to be at the moment of their birth.
Well Ted, I found Senator Howard’s complete statement when he introduced the citizenship clause of the 14th Amendment, and you snipped out the very part that proves I’m right!!! How could you think you could get away with that.
That bold part you just snipped out and went on arguing as if you had just proven me wrong! Where are the damn refs? Did anyone see that???
First of all, the ellipses are not mine; they are the Supreme Court’s. Second of all, I think you are misreading what he is saying. He is not saying that there are three groups of people who are excluded: (1) foreigners; (2) aliens; and (3) people who belong to the families of ambassadors, etc. He is saying that there is one group of people excluded: foreigners or aliens who beong to the families of ambassadors. You can tell that this is so from the fact that he did not say, “foreigners, aliens, or people who belong to the families …” Instead, he said, “foreigners, aliens, who belong to the families …” Remember that he was speaking aloud.
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p>Bottom line, you’ve made a mistake in how you read this, but I don’t expect anything I will say can convince you.
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p>TedF
if all he meant was foreign citizens in general. But then, so would mentioning foreigners and aliens if all that was meant was ambassadors, unless there were some ambassadors who were not citizens of the country the ambassador for. Both of these redundancies can be explained by the fact that he was speaking casually, and wanted to emphasize his point with some redundancy.
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p>I found the quote on this website which makes the same case I am making. This is also from there:
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p>The distinction between diplomats and immigrants and travelers is based on the assumption that immigrants are intending to naturalize and are intending to pledge an oath of allegiance to the US, and are raising their children to be citizens of the US, whereas travelers and diplomats are not expected to do that. Thus, the child of an immigrant could be retroactively declared to have been a citizen since birth, even though his parents were not yet naturalized citizens. But it shouldn’t happen until they have naturalized, for the same reason that naturalization takes time in the first place: the loyalty and allegiance must be demonstrated and proved. This is sort of the issue in Ark, who was denied because his parents never finished naturalizing, even though they had intended to.
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p>I do hope to change your mind. Not because you are less stubborn than me, but because your position is ridiculous.
We’ve been through this already; it was meant to exclude the Native population. I’m sorry you don’t like it, but it is what it is.
Wasn’t that also about the time of Plessy v. Ferguson too? I seem to recall that one was decisively overturned and with good reason.
Citing an autocratic regime has a model for America is not the right way to go about this, just a word to the wise.
Iran and Iraq having changed names since they were Mesopotania and Sumer. But look at a few countries on that list, you’ll see many, if not most, do not give citizenship to children of parents who are citizens of other countries.
we’re supposed to care about how other countries do things? Can we get single-payer health care now?
…in the sense of “conservative” it seems that would be exactly the “right” way to go about this!:)
I would point out that the premise of the dissent as stated in your post, namely that the law relies either on jus soli or on jus sanguinis, but not both, is not true today. Children of American citizens born abroad are American citizens by birth, if one of their parents resided in the US prior to the birth. 8 USC 1401(c). Children of one American citizen born abroad are American citizens by birth, if the citizen parent was in the US for a continuous one-year period prior to the birth. 8 USC 1401(e).
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p>TedF
The dissent didn’t say it couldn’t be both, in fact
I think it should only be Jus Sanguinis, though, and children of foreign citizens should not be eligible to be president.
I believe that children of foreign diplomatic and consular officials born in the United States are not U.S. citizens by reason of birth in the United States. They are not “subject to the jurisdiction” of the United States insofar as they immune from prosecution here.
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p>TedF
Though I thought if it worked the other way US diplomats would make sure to give birth at a consulate so that the baby would be born on US soil.
Their wives do. Furthermore, for most US diplomats, the wife is past childbearing years, either due to biology or chemistry.
I don’t know about their biology or chemistry.
It doesn’t matter if an American gives birth in a hospital or a consulate, just like it didn’t matter if a Native Indian gave birth on the reservation or in an American hospital, the rule was the same, the children weren’t citizens.
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p>Just one point on this…perhaps Rob Eno is on the side of angels on this issue, but note the reason why he doesn’t support this proposal — because it would affect him directly (he says he might not be a citizen without the 14th Amendment citizenship provision).
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p>I note this only because it’s another interesting example of many conservatives taking reasonable positions (particularly on civil rights/welfare issues) only when it affects them directly. It’s not a pretty truth to point that out, but a truth nonetheless.
Or he might be supporting a logically consistent policy of judicial conservatism. This proposal reeks of the very kind of activism that a broad implied interpretation merits that is typical of left wing judicial philosophy. In fact it rests on the same amendment, the 14th. It is incredibly hard to argue that the 14th amendment does not imply a right to privacy because anything that is not in the clear language of the text is not subject to constitutional interpretation, while at the same time suddenly ‘interpreting’ that the 14th amendment does not imply birthright citizenship when both textual evidence and several generations of judicial precedence argue just that. It would be an incredible example of narrow minded activism that disregarded the intent of the framers, precedence, and textual evidence, things judicial conservatives usually support, in favor of a narrow minded and short sighted constitutional solution to a public policy problem that does not merit one. One would hope anyway that our friends on the right are not so nakedly hypocritical in their constitutional opinions and logical consistency. I disagree with the outcome of many Alito and Scalia opinions, but I admire them for their consistency, something many on both the right and left lack, and clearly in this instance the right wing are the clear offenders.
The problem with judicial conservatism is that it’s never “consistent”, at least in practice. You admire Scalia’s opinions for their “consistency”, but to me he’s a poster child for judicial activism and wild inconsistency. See his writings on affirmative action, for example. He’s a typical vote for the “color-blind” Constitution, which has no basis in the original meaning of the framers of the 14th Amendment. And look at his concurrence in Gonzales v. Raich for an inconsistent view of the Commerce Clause. (Generally, if there’s someone I respect for being fairly consistent, it’s Thomas, not Scalia). Anyway, in the political world judicial conservatism is even less consistent. Conservatives hate the courts unless they are conservative (vice-versa for liberals). There’s little consistency here.
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p>In any case, my general point about many conservatives rarely thinking beyond themselves, particularly on civil rights and welfare issues, still stands. I don’t begrudge general self-interest, which is how most people, left and right, operate. But let’s face it — modern conservatism has been taken over by the anti-intellectual, nativist, free market-fundamentalist far-right. If there’s something that benefits “dirty Mexicans”, or gays, or whoever is not a “successful” “mainstream” American, then they are reflexively against it unless it also benefits them directly. Modern conservatism is the child of a bizarre marriage between Ayn Rand and Robert Welch, particularly with the extreme defenses of selfishness and jingoism.
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p>Yes, I’m being deliberately provocative here. But the selfishness theme — not concern about the deficit or even blatant racism — is perhaps the one theme that best ties the modern conservative movement together. Ideologically, I actually consider myself closer to the likes of old-school Republicans Nelson Rockefeller and Jacob Javits than I do to the more liberal side of today’s Democratic caucus. But that strain of reasonable, forward-thinking moderation is light-years away, unfortunately, from the modern American right-wing.
I find nothing to disagree there, Scalia has been inconsistent in applying his philosophy, he favors states rights when it comes to abortion but not medical marijuana or euthanasia, etc. That said I think the theoretical precepts of judicial conservatism, or as I prefer to call it judicial minimalism, are more intellectually consistent and coherent than the malleable ‘living constitution’ that left wing judicial opinion seems to favor.
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p>Personally I am a moderate in many degrees and would gladly support Rockefeller Republicans if such creatures still existed. Most of my favorite politicians are like Mark Hatfield, Matthias in Maryland, John Heinz in Pennsylvania, and others. As a kid my favorite politician was Bill Weld, who my family voted for in spite of our Democratic pedigree. Tom Ridge, Pataki, McCain, and Chris Shays used to be on that list until they became stooges for the far right, particularly when it came to the GWOT. Sandra Day O’Connor remains my favorite living justice, and the court has suffered greatly from her absence. There are few left, Dick Lugar and Lindsey Graham might come close, though both are still fairly socially conservative. Chris Christie and Charlie Crist might be others to watch. Ahnold is probably the last legit Rockefeller Republican and his days are certainly numbered.
In many ways Barack Obama is a Rockfeller Republican, more reason to support him I guess. And I agree with Tannenhaus that he is probably the most deliberately Burkean President we’ve had in quite sometime.
Agreed with you on both O’Connor, who is an underrated Justice in my opinion, and your list of excellent Republicans from times past. I’d add more recent examples such as Lincoln Chafee, Colin Powell, and even the somewhat more conservative Slade Gorton as GOP members I highly respect.
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p>Lindsey Graham is the frustrating one; I’d agree that he’s usually remarkably reasonable, especially coming from South Carolina (which has not, no offense to anyone intended, always historically produced the most level-headed politicians).
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p>But considering that the original post was about the Republicans’ attacks on the 14th Amendment, it should be noted that Graham is one of the ones who started all of this with calls for hearings on the issue. I have a feeling he’s better than that, but unfortunately the primary system combined with a frankly more extreme Republican base means he has to pander to some of the more unseemly elements of the ever-present American nativist movement.
We will issue a few demerits to my praises of Graham. I do admire his consistency which his colleagues (particularly Hatch) had abandoned in favoring any qualified judicial appointment regardless of ideology. Adopting that standard would allow for smoother confirmations, more honest nominees, and would be better overall. You don’t like the choice vote for a different President, which is what the founders intended, and is what the norm had been until Bork.
Was a truly great independent jurist since she legitimately had no preconceived opinions and took it on a case by case basis. The one glaring exception is Bush v Gore, which really the courts should not have taken up to begin with, and which she should have recused herself from.
The fact that she is both a dean and on the faculty at William and Mary Law is making that school particularly attractive.