On Citizenship, the ‘Birthers’ Are Right

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John Yoo:

Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship. This week he claimed that children of aliens who are born on U.S. territory “do not have American citizenship” and that their right is “not going to hold up in court.”

Trump’s argument runs headlong into the Constitution. His proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative. Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.

Trump’s proposal to end birthright citizenship can survive only with a plastic, malleable Constitution. Those who just two months ago decried the Supreme Court’s imposition of same-sex marriage throughout the nation should be the first to reject Trump. His eagerness to read native-born children out of the Fourteenth Amendment smacks of the same liberality toward the Constitution which afflicted the Supreme Court in Obergefell v. Hodges. The text, structure, and history of the Constitution all show that the 14th Amendment recognizes the citizenship of any child born on American territory.

First, the constitutional text. Section One 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 wherein they reside.” The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e., birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e., citizenship of the parents).

Trump and his supporters (including some writers for National Review) may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.

Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.

Second, constitutional history. There is only one blemish on the American tradition of birthright citizenship: Dred Scott v. Sanford (1857). In that notorious case, Chief Justice Roger Taney led a majority of the Supreme Court in striking down the Compromise of 1850, which limited slavery in the territories. Taney found that slaves were property and they, and their children, could never be citizens, even though born in the United States. Dred Scott helped precipitate the tragedy of the Civil War by preventing Congress from limiting the spread of slavery and reaching a compromise between North and South. Section One of the 14th Amendment directly overruled Dred Scott’s selective grant of citizenship to some races but not others.

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Yes.
That’s Sen. Harry Reid saying No Sane Country Would Permit Birthright Citizenship.

Actually, John Yoo (a Bushie who now supports Jeb) is wrong.

He makes the same error that all proponents of jus solis proponents make: Van Ark’s parents were LEGAL immigrants of the United States and had LEGALLY established residency.

Also, when the 13th and 14th Amendments were radified, there were no immigration rules (consequently, there were no legal, or illegal, immigrants) and the Constitution is clear; immigration policy is the sole purview of the Congress, not the President or the courts.

Yoo wants to ignore the original intent of the jurisdiction clause.

Maybe we’ll all be required to provide proof of our mother and father’s citizenship before being allowed to vote. We won’t be able to screen people based solely on their names, accents, or physical appearances, so we’re probably going to have to screen everybody.

Why does this seem strangely familiar?

And we are tortured with another mind numbingly stupid comment by Greggie Goebbels which has nothing to do with the issue at hand.

@retire05, #4:

Evidently the relevant point flew by over your head:

If a U.S. place of birth on your birth certificate is no longer sufficient to establish that you are a U.S. citizen, what documentation will become necessary to demonstrate that you are?

This is no small problem. It’s a very big problem, and it would automatically follow the abolition of birthright citizenship. Nothing could be assumed about anyone’s status based on name, appearance, or place of birth.

I’ll leave it to you to figure out why the resultant scenario might seem vaguely familiar to anyone having some knowledge of 20th Century European history. Here’s a hint: It has something to do with Germany.

@Greg:

If a U.S. place of birth on your birth certificate is no longer sufficient to establish that you are a U.S. citizen, what documentation will become necessary to demonstrate that you are?

Here is a question for you: if the child of a foreign diplomat is born in the U.S., does that automatically make that child a U.S. citizen and if not, how is it determined that child is not awarded birthright citizenship since the place of birth listed on the birth certificate would be on U.S. soil?

When a child is born, the mother’s records contain her Social Security number. That would determine the legality of the mother’s presence in the United States. All medical records maintain your Social Security number. Via the Social Security office, her legal presence in the U.S. is determined. No SS#, she is not legal.

Here is a question for you: if the child of a foreign diplomat is born in the U.S., does that automatically make that child a U.S. citizen and if not, how is it determined that child is not awarded birthright citizenship since the place of birth listed on the birth certificate would be on U.S. soil?

Determining the status of the child of a foreign diplomat is a special case. Doing so would not be difficult. The real problem that would arise following the abolition of birthright citizenship would be how to ascertain the citizenship status of anyone and everyone. A U.S. place of birth shown on a certified birth certificate would suddenly become insufficient. Reliable profiling to narrow the problem down would be virtually impossible.

When a child is born, the mother’s records contain her Social Security number.

Legal requirements that the mother and/or father supply Social Security numbers in order to complete a child’s birth registration are relatively new. In addition, it’s unlawful for states to record a parent’s SSNs on issued copies of birth certificate. Birth certificates presently in people’s possessions won’t show this information. It’s also unlawful to use the parent’s SSN data base for any purpose other than child support enforcement.

@Greg:

Determining the status of the child of a foreign diplomat is a special case. Doing so would not be difficult.

How would you then determine that child was not a U.S. citizen if it was so easy? You offer no real solution (which is normal for you).

The real problem that would arise following the abolition of birthright citizenship would be how to ascertain the citizenship status of anyone and everyone.

How would it be more difficult than the child of a diplomat? Again, you only offer platitudes, nothing concrete.

A U.S. place of birth shown on a certified birth certificate would suddenly become insufficient. Reliable profiling to narrow the problem down would be virtually impossible.

You forget the legal residence of the parents is also included on a birth certificate.

Legal requirements that the mother and/or father supply Social Security numbers in order to complete a child’s birth registration are relatively new.

Those SS# are required for medical records and could be used for birth records, as well.

In addition, it’s unlawful for states to record a parent’s SSNs on issued copies of birth certificate. Birth certificates presently in people’s possessions won’t show this information. It’s also unlawful to use the parent’s SSN data base for any purpose other than child support enforcement.

Wow! You’re now all of a sudden worried about violating the laws regarding SS#s. News flash, it is illegal for a furniture store to required your Social Security number on a credit application, but try buying a sofa on credit without giving to them.

As ususal, you provide nothing but blather and remain ever the idiot.

Sorry, Ducky, but the difficult here all seems to be in your own little bathtub. You’re the one evading the problem, previously stated:

If a U.S. place of birth on your birth certificate is no longer sufficient to establish that you are a U.S. citizen, what documentation will become necessary to demonstrate that you are?

This is no small problem. It’s a very big problem, and it would automatically follow the abolition of birthright citizenship. Nothing could be assumed about anyone’s status based on name, appearance, or place of birth.

Perhaps you’re wanting to abolish birthright citizenship only from the point the law changes onward? That might be doable. I don’t even find the proposition objectionable. We’ll simply have to require that parents establish the fact that they themselves are U.S. citizens at the point every future birth is registered. And to do that, we will use… The parent’s birth certificates?

I’m sure we could figure something out.

@Greg:

Sorry, Ducky, but the difficult here all seems to be in your own little bathtub. You’re the one evading the problem, previously stated:

Perhaps you have forgotten this exchange?

Determining the status of the child of a foreign diplomat is a special case. Doing so would not be difficult.

How would you then determine that child was not a U.S. citizen if it was so easy? You offer no real solution (which is normal for you).

Still waiting on that answer since that birth would be given a standard birth certificate, listing place of birth, as is supplied by all hospitals in the United States and territories.

I love sparring with you, Greggie Goebbels. You continue to prove that you really have no argument, no debate skills and are an idiot. I appreciate the fact that you are willing to expose that for all to see.

“to end birthright citizenship can survive only with a plastic, malleable Constitution.”

I have to politely dissent.

First, His [Trump] proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative.

Milton Friedman is such a sage and already thought this scenario through. His prescience advice follows:

No, we don’t need to change Congress. Excuse me. You know, people have a great misunderstanding about this. People in Congress are in a business to buy votes. They’re in the business of competing with one another in order to get elected. The same Congressman will vote for a different thing if he thinks that’s politically profitable. You don’t have to change Congress. People have a great misconception in this way, that the way you solve things is by electing the right people. It’s nice to elect the right people, but that isn’t the way you solve it. The way you solve things is by making it politically profitable for the wrong people to do the right things.

Next: constitutional text vs the text of the Constitution

Article 1, Section 1 of the Constitution: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 1, Section 8 of the Constitution: The Congress shall have power to; … all duties, imposts and excises shall be uniform throughout the United States; To establish a uniform rule of naturalization.

Within the context of the founding of our nation and as written in the Constitution, Congress designates citizenship, not the POTUS, courts, or a non-elected agency.

Now addressing the constitutional text of the 14th Amendment, Section 1 which states without any context: All persons born or naturalized in the United States and subject to the jurisdiction thereof…

… “and subject to the jurisdiction thereof…”

We will have to agree to disagree. Jurisdiction has proven to be subjective in the past as I recall something to do with Elian Gonzalez. Nowhere have I read that we are obligated to extend jurisdiction over illegals and their anchor babies. Artticle 1, Section 8 says Congress decides naturalization and implied jurisdiction.

@mossomo:

Well stated.

@mossomo:

Jurisdiction of foreign nationals is their home nation. That’s part of the reason and purpose behind foreign nations having embassies in host countries, to deal with issues regarding their citizens whom the embassy has jurisdiction over while they are abroad in said host countries. Which is why you are expected to contact the embassy of your home country when you run afoul of the law while abroad.