Constitutional Law, Courts, Criminal law, Lawyering, Politics

Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship

As with so many constitutional and political disputes, the renewed controversy over the 14th Amendment has both sides claiming degrees of clarity and certainty that belied by a long and convoluted historical record.  I have written and spoken this week about the arguments on both sides of this issue — a debate that has raged for 150 years. Frankly, I believe a court ruling would be welcomed to bring clarity and closure to the issue.  The plain meaning of the 14th Amendment supports unlimited birthright citizenship and that is likely where the courts would come out on the issue. Nevertheless, from the time of ratification, there has been a debate over that interpretation with many Democratic and Republican members arguing for decades that the matter is left to Congress.  For decades, many have held to the belief that either the14th Amendment leaves the matter to Congress or limits the right to birthright citizenship.

As I have stated, President Donald Trump is wrong to try to do this with an executive order. I testified against President Barack Obama using such executive orders to force major changes in immigration and other areas.  It was wrong then and it is wrong now. (Note: if the 14th Amendment is found by the court to be limited to exclude illegal immigrants, he would not be trying to “amend the Constitution” with an executive order but simply order compliance with its meaning).

Sen. Lindsay Graham has said that he will introduce legislation to accomplish the same result. That is a much better vehicle for a change.  It removes the obvious threshold question of the means used by challengers.

Once a court looks at the meaning of the 14th Amendment, the plain meaning of the Amendment would likely prevail and I would be inclined to that view.  However, it is wrong to dismiss alternative interpretations as frivolous or bad faith.  This is a long standing debate. The Amendment itself was designed to address a different issue:  guaranteeing the full rights of citizenship for free slaves after the Civil War.  The status of the children of undocumented immigrants was simply not the focus.

That forces a lot of attention on the six maddening words popping up in the middle of the Amendment: “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 natural reading would be to simply conclude that anyone on our soil is subject to its jurisdiction and therefore any children born to them are citizens by birth. That is a compelling interpretation based on the plain making, though it makes the six words somewhat redundant with “born . . .  in the United States.”

Making this more difficult is the fact that illegal immigration was not a primary concern during the period.  Indeed, few academics argue that the drafters had this specific question in mind when they wrote this Amendment.  Nevertheless, some of the drafters appeared to continue to hold with a more narrow interpretation like Senator Jacob Howard who said  during the debate that

“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. 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.”

There was also the Civil Rights Act of 1866 which stated “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”  Even the meaning of that lines was contested.

The point is that there is a basis for people of good faith to disagree and there is no need to overstate the record.  The advantage on the issue rests with the plain meaning and the unlimited view of birthright citizenship.  It also means that Trump is wrong about using an executive order. However, a clear ruling of the Court would be useful in establishing whether a constitutional amendment is required.

 

172 thoughts on “Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship”

  1. Are the U.S.-born children of undocumented immigrants entitled to birthright citizenship under the 14th Amendment? The Supreme Court decision in Wong Kim Ark supports the proposition that they are not.

    Per the stipulated facts, the parents were both legal, permanently domiciled residents of the U.S. The holding itself is arguably quite narrow. A child born in the United States, of parents who, at the time of his birth are subjects of a foreign country, but have a permanent domicile and residence in the United States, and are there carrying on business, is a citizen of the United States.

    Section VI of the opinion addresses the legal status of the parents:

    “Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of [a particular nationality] to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

    [Foreign] persons, born out of the United States, remaining subjects of [a foreign nation], and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States SO LONG AS THEY ARE PERMITTED BY THE UNITED STATES TO RESIDE HERE, AND ARE ‘SUBJECT TO THE JURISDICTION THEREOF’ in the same sense as all other aliens residing in the United States.” (Emphasis added).

    In other words, Congress has the authority, within the bounds of the Constitution, to set immigration laws defining those persons legally entitled to reside in the country. Their children receive birthright citizenship under the 14th Amendment. That said, “subject to the jurisdiction” requires a LEGAL presence in the country CONSISTENT with the immigration laws. Wong Kim Ark therefore lends considerable support to proposition that the US-born children of undocumented immigrants are not entitled to birthright citizenship under the 14th Amendment.

    1. 14th Amendment

      “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens…”

      Translation:

      All persons born or naturalized in the United States and subject to the jurisdiction of the United States, are citizens…
      ___________________________________________________________________________________________

      All persons born in the United States and NOT subject to the jurisdiction of the United States, are NOT citizens…

      All illegal aliens from Mexico, inclusive of the inseparable fetuses in their wombs, are subject to the jurisdiction of Mexico.

    2. Good post R Burns!

      I cant resist asking however, is your first name RIchard? I saw a SNL skit about that one time

      Thanks for the case analysis!

      1. R.L. Burnside is an old Mississippi blues musician who passed away some years ago. It’s Bad You Know and Someday Baby are two of his best.

  2. President Trump has the same rationale and justification for a declaration of insurrection and rebellion as Abraham Lincoln. Considering a Trojan Horse of up to 30 million foreign invaders as extant illegal aliens, sanctuary cities which treasonously aid and abet criminal foreign intruders and looming and burgeoning invasion forces on the border, President Trump should declare that condition of insurrection or rebellion and issue proclamations and executive orders as he deems necessary.

    1. George – I listened to the President’s complete speech, including questions and he is going to do a catch and keep program. They are putting up thousands of tents. And they will house them until their court hearing. Then they will be deported or released.

      1. Isn’t there an election next Tuesday?

        I would be offering those unfortunate and long-suffering, pitiful pilgrims caviar, champagne, filet mignon and a heaping dose of compassion…at least until Wednesday.

        1. George – according to Trump the normal time from asking for asylum and your hear is at least one year. There are currently four caravans on the way.

      1. To what purpose?

        How many marches on Washington have done anything to repeal the use of the Electoral College? Answer None. 700 plus attempts through congress has never moved that issue out to the public in Amendment Form. SCOTUS has never been asked by a lower court to rule on it.

        Besides a lot of nothing most marches are useless and most of that stuff has a very small turnout no matter how much the hype.

        1. Michael Aarethun fails to recognize rye humour.

          Or is it wry humour.

          Either way…

      2. Benson, I’m gonna take a wild guess that, while you might be capable of walking out your door and marching on Washington…state, you will likely never march on Washington D.C.

        You may be disingenuously inciting to riot.

    2. You don’t. You get opinions but only SCOTUS and the Congress attempting to pass an Amendment for passage by the States have the final say so. Not even the rogue judges of the circuit courts have that power as it only takes an appeal to the next higher level SCOTUS and beyond them the citizens. It is what makes us a representative Constitutional Republic instead of a socialist autocracy.

  4. If a woman is knocked up then don’t let her across the border. The Supreme Court once ruled that the federal government had the right to round up American citizens and put them in concentration camps until the war was over. We are at war in Afghanistan. You folks who like to read Supreme Court cases should read the Korematsu decision. Justice Hugo Black was the author. He was from Alabama.

    1. That is the problem. We are not at war. As in ‘declared.’ Haven’t been since WWII.

    1. Stil wasting space. I believe your constantly changing story about how many etc far out weighs any thing of actual substance. Like the million man march which had I seem to recall around a hundred thousand. And Clintons 100 thousand Cops which included replacing the Border Patrol he laid off.

    1. What’s the point? Only the Socialists are going to support that feeble effort and they already have enough crooks.

  7. I have always since I studied them looked on the three in tandem as first a way to ‘free’ slaves and secondly to secure their ‘right’ to be in the country.

    The need to word things in such a way required not only that goal and acceptance by all the States but it seems their was always a hidden purpose in the wording to allow for the future thus humans from other places on the planet but limited to those who were under the soverignty of the country.

    Looking back on the three civil war amendments in light of this current situation I discovered again that like the rest of the Constitution it cannot be taken piece meal and cherry picked. Picking only cherries invariably leaves room for a sour taste and too many unpalatable.

    The most recent example is Money as free speech which makes up an entirely new right but takes away as many as four or five rights including violating 9th and 10th Amendments. \

    Fat Rosie O’Donnell constantly is forced to eat her words because of cherry picking. The latest is demanding the military impeach The President under martial law. That particular cherry is marked ‘handcuff Rosie first.’

    Thus I would suggest re-reading the Constitution, the law of the land in context of The Declaration, the Mission Statement and due diligence using the Journals of the two Constitutional Congresses that produced the Constitution. If that isn’t enough the Federallst and Anti Federalist papers.

    But it should take no more than familiarity with the Declaration of Independence and The Constitution with Amendments. Just a few thousand words.

    I’m sure you all have copies on hand. Right.Right!

    1. Back then we didn’t control all the land from sea to shining sea. In the end the reservations in many cases were listed as sovereign nations and protectorates of the USA. If you happened to watch Longmire series it depicted what that sort of set up caused in the way of legal and other problems. My Grandfather wrote in his book about growing up in the late 1800s how the solution was get some sub chief drunk and get them to sign the document relinquishing separate status.That;s a thumbnail reason used to exclude the indigenes. Back then.

  9. There is no better time to have this discussion in America, with the Democrats looking at the “Caravan” and thinking it looks like a casting call for the new Robert Rodriguez film. And the Republicans, and other critical thinkers, seeing it for what it truly is: a huge wooden horse rolling this way.
    Well, this ain’t Troy, and we ain’t stupid!

    1. Yes, you are, Cindy, proven by the fact that you feel imminently threatened by a horde of shoeless mostly women and children over 900 miles away. BTW: in the Trojan horse story, they didn’t know that the horse was filled with people. The media are following this group. Also: hasn’t Faux News photographed any of the Middle Easterners travelling with them?

      1. Anon…….I am thinking of my grandchildren and the devastating health issues this problem will bring. You cannot let people from other countries walk into another country without proper health screening. It’s common sense 101. Ask the WHO or CDC
        Because that was not done under Obama, we now have a mystery virus in 22 states that is paralyzing children. The first cases appeared in 2014, right after that first enormous immigration surge ………they were mostly from Central Amc. That’s when those kids were dispersed all over the country….and the agents at the border said they did not have the resources to screen them for any health issues!! They were very worried at the time………

        1. One disease that looked like it might be eradicated in the US was TB. Drug resistant TB mostly came from outside our borders and TB was not eradicated.

          1. Allan….That’s right… So scary. Why isn’t anyone talking about this!? Other than Laura Ingraham!
            25 yrs ago my husband and I worked very closely with homeless people. Because of that, the city health dept said we had to be tested every 6 months for TB, so we were.
            I am so afraid for my grandsons.

            1. There was a time when one could not enter this country if any illness was detected and new immigrants sent home if illness was detected.

              Even the Democrats favored control over the borders. Eisenhower sent over a million illegals out of the country using the military to do so. Cesar Chavez, human rights activist and UFA leader tried to keep illegal immigrants out of the country. The Democrats have moved so far to the left that today the left might call Cesar Chavez a Nazi.

              1. Allan……..That’s so interesting! I actually was working a campaign that Chavez was part of… it was 1982…….and what’s crazy is I don’t remember anyone’s stance on illegals…..just legals! I don’t remember illegals being mentioned, but I’m sure they were. Thank you, Allan, for that history.

                1. Chavez and black leaders like Abernathy didn’t want uncontrolled immigration in any fashion because they knew it cost them jobs and higher wages.

              2. No need to be terribly afraid unless one is living in close contact or one has kids that go to school where illegal children go as well. Most school systems in the U.S. won’t let a child into class unless he has adequate proof of vaccinations and the like but the law may not apply to those that are illegal.

                  1. A person without a name is now claiming sarcasm? It sounds like you wish to end all programs that screen for disease before enrolling in school and all vaccination programs. I guess you wonder why those programs were ever created.

        3. Is there any actual proof that migrants have any communicable diseases? Of course not, so why are you willing to listen to a snarky bottle blonde who makes up lies? Why don’t you understand how Trump and Faux News are pandering to fears just to get votes by floating the absurd story that some pathetic people 900 miles away are an imminent threat to your health and safety? What makes you think they can just walk into the U.S.? They can’t. What Democrat ever said they favored open borders? None. More Trump and Faux News lies and propaganda.

          If you want a communicable disease to fear, consider MRSA, which you can pick up at your local hospital, and which can be fatal. Migrants didn’t cause this, either.

      2. Might want to get your assertions correct…..if, IF they were shoeless, it would be quite impossible for them to have walked the distance they have and not, NOT, have sustained injuries over the different terrains, which would have resulted in many dropping out, or at least, slowing down the progress to a crawl. Unrealistic and laughable. Next, didn’t see any women and children breaking down fences, throwing rocks or attacking the police and military of other countries.

        1. “Next, didn’t see any women and children breaking down fences, throwing rocks or attacking the police and military of other countries.”

          Anonymous, it is already clear that you only see that which you wish to see and only know that you want to know.

          1. Allan, I believe you misunderstood that particular Anon. They were refuting the Idiot Anon above who was asserting that the invaders are mostly shoe-less women and children, when that is an obvious lie.

            2. You may be right but when people post under anonymous with a generic symbol they assume the liability of being thought to be the anonymous who frequently posts under that generic label. Her postings are frequently wild so and sometimes make no sense so I don’t read to deeply into anything written under that generic alias and icon.

              1. the anonymous who frequently posts under that generic label. Her postings are frequently wild

                Again, it’s one of the 4 handles Diane is using.

      3. Anonymous – in the Trojan Horse story both the Lacoon and Cassandra told them that there were soldiers in the horse. They were not believed. It was not like the Trojans were not warned. And they did examine the horse before they took it inside their gates (idjits).

        1. Paul C. Thank you, kind Sir, for the clarification and explanation See, we ain’t stupid!
          “Literature” is my second language…. I’m not that well-read……but I try.
          Now, if you throw some classical music at me, you better duck! I do know music! LOL

          1. David Benson is the God Emperor of Making Stuff Up and owes me twenty-two citations (one from the OED, one from the town ordinances and two from the Old Testament) and the source of a quotation, after twenty-one weeks, and needs to cite all his work from now on. – The Trojan Horse is not in the Illiad, it is in Vergil’s Aneid.

  10. BIRTH TOURISM AN ISSUE

    RUSSIANS TO MIAMI, CHINESE TO GREATER L.A.

    For years the L.A. Times has told us that wealthy Chinese women are fond of giving birth in Southern California. Less known, however, are the Russian women giving birth in Miami. These babies could someday form a fifth column of spies entitled to U.S. citizenship. For that reason this liberal thinks it might be time to reconsider the 14th Amendment.

    https://www.nbcnews.com/news/us-news/birth-tourism-brings-russian-baby-boom-miami-n836121

    1. I like how we should reconsider 14th amendment but we shouldn’t even talk about the 2nd. There’s a middle ground with everything. People are just straight insulting each other non stop. We all can’t have what we want. How about we look for solutions instead of outlet to vent. I’m an immigrant myself. I do agree with the notion that these people are coming despite warning not to. There is a process and it needs to be followed. Everybody can’t do what they want. What I do disagree with, is the fact that president is using this caravan as election token. Think about it, these people are way down south, the distance alone would be about Chicago to LA. You honestly think they’ll get here next week? No, but election is exit week. This is just a swing vote token. Don’t be silly. See things for what they are. There’s plenty of air for everyone. We all need to calm down. Both parties to the extreme right or left will ruin the country.

      1. What we do know is that some of the Democrats openly want to get rid of ICE. Some Democratic cities have made their cities sanctuary cities. I think Gilliam would like to make Florida into a sanctuary state. The Beto campaign is using campaign finances illegally to help illegal immigrants coming in and that is on video.That is the tip of the iceberg.

        1. Having made the assertion O’Rourke is suborning illegal aliens to cast votes for him and that it’s on film, then it should be no trouble at all to provide a link to it. Right?

  11. Turley advocates for the notion that there are good faith and equal arguments for disputing whether the 14th Amendment means what it plainly says. In support of the claim of good faith, he argues that the purpose of the Amendment was to ensure citizenship for the children of slaves born in the United States, and that the matter of illegals giving birth wasn’t considered, but the wording of the Amendment is what controls, and children born in the U.S. to illegals are citizens. How are children of illegal aliens present on U.S. soil when they are born any different from children of slaves born here? How are illegal immigrants present on U.S. soil not subject to its jurisdiction? If they aren’t subject to jurisdiction, then how can they be arrested and detained and their children taken away and put into cages?

    I also disagree with the claim that good faith has anything to do with the timing and content of this argument. The underlying reason Trump is harping on this now, ahead of the elections, is to appeal to the racism and xenophobia of his base. Claiming an “imminent” crisis, he is proposing sending 15 thousand U.S. troops to stop 7,000 undocumented people who are more than 900 miles away, on foot, or 2 soldiers for every illegal attempting to cross sometime in late December, if the current pace continues. The only thing “imminent” is the midterm elections next week and the growing fear by Trump and Republicans of the blue wave that is coming. They know what stirs up their xenophobic and racist base, so to fan the flames, Trump and Faux News also harp on the following lies: that Democrats are in favor of “open borders”. What Democrat has ever said this? That these illegals are diseased with smallpox and leprosy, which is a complete fabrication. Smallpox was eradicated in the 1970’s. That the caravan contains gang members and Middle Easterners, something else without any factual foundation whatsoever. Nevertheless, the deplorables buy it. And, BTW: U.S. military have no authority to do anything on U.S. soil.

    What amazes me is that lying and appeals to xenophobia and racism actually work in this day and age, and that any substantial number of people fall for stoking fears of an imminent crisis that is anything but.

    1. @anonymous

      I oppose birthright citizenship for the illegals myself but I CANNOT be racist by definition because I am Hispanic. A victim of a recognized “victim” group. Love how you libs promote identity politics.

      antonio

      1. Antonio, it sounds like you’re just dying to have some liberal call you a ‘racist’. Like you’re really hoping for that moment in a big, big way.

        1. Peter, Antonio is merely pointing out the inconsistency of the left and how foolish many of their ideas are. Racism occurs when a person of one race thinks that his race is better than another’s. That is how the left thinks and that is why they place so many people on their political plantations (paternalism) and get angry when some of them walk away. Antonio sounds like a well adjusted guy that you wish didn’t exist.

          1. Allan, you’re just babbling gibberish from right-wing media. And this is why I keep saying that right-wing media dumbs-down conservatives. This idea of ‘political plantations’ that Blacks should ‘walk away’ from is just a nonsensical talking point.

            The vast majority of Black elected officials are Democrats. They are partners in the party! It’s nonsense to say the party is a ‘plantation.

            And ‘why’ on earth would Blacks ‘walk away’ to the Republicans??? Currently Republicans in Georgia are doing everything possible to suppress Black votes. That has been widely covered in the mainstream media these last two weeks. Only the most ignorant would think Republicans have sincere intentions regarding Black voters.

            2. Peter, what did I say that wasn’t true? The racism from the left has been documented though not reported in the MSM. Censorship and stopping freedom of speech is hallmark of the left and we see violent actions performed to prevent free speech. That is what you represent.

              Tell us any prominent conservative black man that the left hasn’t gone after. Yes, Liberal blacks that are outspoken are loved by Democrats as long as they walk that fine line which doesn’t prevent racism towards other races. Take note of how Black politicians will surround Farrakhan who called Jews termites and would like to see them exterminated. I think there was some interesting press about Guilliam who is a black man running for governor of Florida. He is a Democrat and should he win he might have to govern the state of Florida from a federal penitentiary.

              As far as voter supression the Democrats have control over the election board and on the major issue both Democratic and Republican candidate agree.

            3. Democrats Are Misleadingly Blaming The GOP For Racist Voter Suppression In The Georgia Gubernatorial Battle

              7:11 PM 08/23/2018 | POLITICS
              Democrats have been criticizing Georgia Secretary of State Brian Kemp over a proposal to shut down three-quarters of the voting precincts in a predominately black county, leading to possible voter disenfranchisement, despite the decision to do so resting in Democrats’ own hands.

              Randolph County officials ordered an outside consultant to review the county’s polling locations, according to Reuters. The consultant, Mike Malone, was recommended by the office of the secretary of state, which currently belongs to Kemp, who is the Republican gubernatorial candidate. Malone shared findings earlier in August, which resulted in the recommendation that seven of the nine voting precincts in Randolph County close due to violating the American with Disabilities Act (ADA).

              As he gave his recommendation, Malone inaccurately stated that “consolidation has come highly recommended by the secretary of state,” reported Politically Georgia. Kemp denied the claim and Malone has since retracted it. Malone later said “I don’t recall ever hearing anything from the secretary of state that said they recommend [the proposal].”

              Randolph County fired Malone on Wednesday evening, according to Politically Georgia.

              “He’s certainly done more than enough,” a county official said regarding Malone. “The county is distressed because of the position they’ve found themselves in.”

              The county’s election board is considering the consultant’s proposal to shut down the seven precincts prior to November’s gubernatorial election, where Kemp is running against Democratic opponent Stacey Abrams, who would be the nation’s first black and female governor if elected. The precincts in question were in use for both the primary election in May and the primary runoff in July, and officials have been aware of the ADA non-compliance issues for over five years, according to CBS News. (RELATED: Democratic Gubernatorial Candidate Has Accumulated Over $200,000 In Personal Debt)

              Despite both Kemp and Abrams publicly opposing the closures, Kemp has been taking heat for supposedly trying to suppress votes during a potentially historic election. In an opinion piece, Abrams called the proposal “suppression tactics” and emphasized the importance of voting her into office so not to “cede our right to vote.” She also lashed out in a series of tweets, comparing it to the Jim Crow South.

              Kemp, however, does not have a say in the matter. The Randolph County commission, which appoints the election board, has a Democratic majority. Two members of the election board, a Republican and a Democrat, will ultimately decide whether or not to accept the proposal. However, since the motion must be seconded to advance, Democrats can block the decision.

              “Georgia Democrats are attacking local Democrat election officials on a proposal that both Brian Kemp and Stacey Abrams oppose,” said John Watson, chairman of the Georgia Republican Party. “Clearly, Democrats want to use voters to score political points — and then blame the crises on Republicans.”

              The Georgia GOP also opposes the proposal.

              Abrams did not immediately respond for a request to comment.

    2. You: “What amazes me is that lying and appeals to xenophobia and racism actually work in this day and age.”

      I: What amazes me is you only managed to include forms of xenophobia and racism three times in your comments. C’mon, animus, you can do better than that. With a little practice and experience, you should be able to use them at least five times each in a three-paragraph diatribe. Of course, you may think your Clinton’s deplorables comment counts as an added use, but it doesn’t unless you pair it with Biden’s dregs. All the liberal Democrats are supposed to know that. They’re also supposed to stick to the certified talking points–freelancing not permitted.

      As to your comment about jurisdiction and arrest, I’m reminded all squares are rectangles, but not all rectangles are squares.

    3. There are 50 nations in Africa that don’t.permit birthright citizenship. Are all of those countries racist?.

    4. Disagree with me and you’re a racist. Why would anyone engage with this buffoon anonymous after that argument? He/she calling Cindy “stupid” is the projection of the year.

    5. The legal status of black freed slaves changed from “property” to “illegal alien” as citizens must have been “…free white person(s)…”

      For a five year period, Lincoln and his successors must have deported the freed slaves, as compassionate repatriation.

      Lincoln’s crimes were numerous and constituted by all of his acts.

    6. No Amendment to the Constitution was needed 1868 to define how newborns obtained US Citizenship. Both jus solis and jus sanguine were legally established as early as 1791 in the US. To argue that the 14th Amendment shed new light on how babies become citizens begs the obvious question, how did Abe Lincoln obtain his US Citizenship?

      So the chlidren born to emancipated slaves after 1868 was not at issue. The impact of the 14th was to firm up the Citizenship rights of people alive in 1868 whose citizenship was still being challenged in southern state courts 2 years after the Civil Rights Act of 1866 conferred such rights by statute. The north countered by turning the Civil Rights Act into the 14th Amendment.

      My questions for Constitutional lawyers such as JT:

      1) Is the “…and subject to the jurisdiction thereof…” not a qualifying sentence clause? The word “and” prefaces another condition to be met besides being born on US soil.

      2) Under standards of parsimony for legal draftsmanship, why would the writers of the 14th Amendment add a condition that seemingly anyone from anywhere on the globe visiting the US could meet? Such a clause would have no practical impact if it applied to every person globally, and therefore, why even mention it as a condition?

      That 2nd point is the weak link, if I understand it correctly, in JT’s “simplest reading”. It is historically undeniable that the Citizenship Clause had the purpose of including the freed slaves, and excluding a wider global population having foreign nationalities. Native Americans who were not paying federal taxes were also excluded from automatic birth citizenship.

      This is the same issue we’re left to struggle with. I agree with JT that the time has come for one branch of govt., any branch with the guts and clarity, to pin down the meaning of the “jurisdiction thereof” qualifier. Saying it has no qualifying impact is just a non-starter. It must have some for the drafters to have inserted it, and we know that the Ratifiers in 1868 were not voting “aye” in order to extend birth citizenship to the widest possible global population. Yet, that is what the liberal side in this debate wants to pretend the Ratifiers were thinking at the time. Either that, or staking their claim on the notion that Ratification is not the process checkpoint that gives legitimacy to an Amendment as “the consent of the governed”. Rather, the meaning of the words can be reinterpreted without any need for re-ratification. In other words, the impact of the 14th Amendment can be radically expanded in scope, in defiance of what the Ratifiers believed they were approving. In the theory of a “living Constitution”, ratification is subverted. Let the elites rule without the need for a broad consensus.

      1. The qualifying clause is to exclude the issue of those with diplomatic immunity.

        2. David Benson is the God Emperor of Making Stuff Up and owes me twenty-two citations (one from the OED, one from the town ordinances and two from the Old Testament) and the source of a quotation, after twenty-one weeks, and needs to cite all his work from now on. – if you read the statements of the creators of the Amendment, it is in there to include Indians, aliens, foreigners, diplomats, etc.

          1. If so, then they failed. Indigenous treaty rights only apply to the reservation lands. “Aliens” and foreigners must obey the law, having no diplomatic immunity. Note recent trials started involving citizens of the PRC; an example.

        3. I agree that the ratifiers were OK with excluding babies born to foreign diplomats.

          There was no way for the Ratifiers to see ahead 150 years to a time of Immigration Law with numerical limits, and much faster, cheaper global transportation. They couldn’t anticipate illegal immigration as a problem, and thus their “aye” votes in 1868 were tacit on the issue. That makes the Constitutio’s 14th Amendment tacit on that specific issue

  12. The “Reconstruction Amendments,” “Crazy Abe” Lincoln’s “Reign of Terror” and that of his successors were unconstitutional and dishonest falsehoods. As a metaphor, the Constitution would have found O.J. Simpson guilty; Lincoln and his successors would have found O.J. Simpson innocent. The Constitution and the irrefutable facts were nullified by Lincoln because the communist “…ends justify the means.” The entire constitutional legacy of “Crazy Abe” Lincoln and his successors must be rescinded and abrogated by Presidential “proclamation,” a la Lincoln, or executive order, a la Barry Soetoro.

  14. It is amazing and sad to me that this is presented as a Left vs Right, Liberal vs Conservative, Democrat vs Republican issue.

    Jay S and others: are we to believe that you do not believe the US should have borders? Or are they only supposed to be treated as “suggestions” rather than “borders”?? The whole caravan should just be allowed right in, because to do otherwise is “racist”? Is this truly what you believe, or are you simply opposed to anything and everything that Trump says, thinks, does, etc., regardless of the cost or benefit to YOUR OWN COUNTRY???

    FFS.

    1. NIce try, but many or us here aren’t infected with Pravda Faux News brain fever. The subject of the post is about the 14th Amendment to the United States Constitution. The “Caravan” brought to you by stormfront, brietbart and the day glo bozo, has nothing whatsoever to do with the discussion of the 14th Amendment. Pro tip: hannity thinks you’re a gullible rube or dupe, also; while your belief that anyone is advocating for refugees to “just be allowed right in” reveals you to be a simpleton, as well. You haven’t heard this from your hero hannity or your clown, but the United States is still a nation of laws. Some of those laws concern the process for dealing with refugees who present at our border claiming refugee status. There are other such facts apparently unknown to you which are available with a little research–albeit less reliance on your echo silo.

      this is to “but hannity looks so sincere on the tube” trotty

      1. Marky, your mother must be so disappointed that you turned out to be such a jerk.

  15. 14th Amendment

    “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens…”

    Translation:

    All persons born or naturalized in the United States and subject to the jurisdiction of the United States, are citizens…
    ___________________________________________________________________________________________

    All persons born or naturalized in the United States and NOT subject to the jurisdiction of the United States, are NOT citizens…

    All illegal aliens from Mexico, inclusive of the inseparable fetuses in their wombs, are subject to the jurisdiction of Mexico.

  16. Again, from Wong Kim Ark, the Court notes the LEGAL STATUS of Wong’s parents:

    “The question presented by the record is whether a child born in the United States, of parents 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution,”

    Again, note the “permanent domicil and residence” language. Wong’s parents were NOT temporary sojourners in the country. They lived here. Legally.

    Squeeky Fromm
    Girl Reporter

  17. Sooo, this language is from Wong Kim Ark:

    “The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications… of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
    ”
    I submit that the term “resident aliens” clearly excludes non-resident aliens. Such as French people here on vacation, or illegal non-resident aliens. Any other interpretation is absurd.

    I think that the status of people living here with green cards, is a separate matter, and their children are clearly citizens.

    Squeeky Fromm
    Girl Reporter

    1. Those with green cards are exactly those identified as resident aliens in Wong. The term has changed from resident aliens to lawful permanent residents, and the now no longer green green card exists. You’re definitely right in concluding, as it did with Wong Kim Ark, their children are clearly citizens.

  18. “Crazy Abe” Lincoln was a communist and mortal enemy of the unrestricted freedom provided by the Constitution and Bill of Rights.

    To wit,

    Lincoln/Marx Timeline

    – Lincoln born: February 12, 1809
    – Marx born: May 5, 1818
    – Marx publishes a book about Emancipation: 1843
    – Marx expelled from France as a radical: 1845
    – Lincoln elected to US House: 1846
    – Marx publishes the Communist Manifesto: February 1848
    – Marx is a contributor to the New York Tribune (Lincoln’s favorite newspaper), 1851-1861
    – Lincoln runs for U.S. Senate vs. Douglas, famous Lincoln-Douglas debates occur: 1858
    – Lincoln becomes US President: 1860
    – Civil War Starts: 1861
    – Emancipation Proclamation: January 1, 1863
    _____________________________________

    “…our idea is that Labor needs not to combat but to command Capital.”

    – Abraham Lincoln

    “Unless, of course, we bother to examine the tattered copies of the American outlet for Marx’s revolutionary preachments during the period when Lincoln was preparing to leave the political wilderness and make his march to the presidency. That journal, the New York Tribune, was the most consistently influential of nineteenth-century American newspapers. Indeed, this was the newspaper that engineered the unexpected and in many ways counterintuitive delivery of the Republican nomination for president, in that most critical year of 1860, to an Illinoisan who just two years earlier had lost the competition for a home-state U.S. Senate seat. The Tribune is remembered, correctly, as the great Republican paper of the day. It argued against slavery in the south. But it argued as well, with words parallel to Lincoln’s in that first address to the Congress, that “our idea is that Labor needs not to combat but to command Capital.”

    – ISR
    _____

    “…many leading European radicals to take refuge in the United States, and Lincoln’s circle of supporters would eventually include some of Karl Marx’s closest associates and intellectual sparring partners, including Joseph Weydemeyer and August Willich.”
    _____

    “Unless, of course, we bother to examine the tattered copies of the American outlet for Marx’s revolutionary preachments during the period when Lincoln was preparing to leave the political wilderness and make his march to the presidency. That journal, the New York Tribune, was the most consistently influential of nineteenth-century American newspapers. Indeed, this was the newspaper that engineered the unexpected and in many ways counterintuitive delivery of the Republican nomination for president, in that most critical year of 1860, to an Illinoisan who just two years earlier had lost the competition for a home-state U.S. Senate seat…
    …
    Lincoln’s involvement was not just with Greeley but with his sub-editors and writers, so much so that the first Republican president appointed one of Greeley’s most radical lieutenants—the Fourier- and Proudhon-inspired socialist and longtime editor of Marx’s European correspondence, Charles Dana—as his assistant secretary of war.
    …
    Long before 1848, German radicals had begun to arrive in Illinois, where they quickly entered into the legal and political circles in which Lincoln traveled. One of them, Gustav Korner, was a student revolutionary at the University of Munich who had been imprisoned by German authorities…
    …
    Within a decade, Korner would pass the Illinois bar, win election to the legislature and be appointed to the state Supreme Court. Korner and Lincoln formed an alliance that would become so close that the student revolutionary from Frankfurt would eventually be one of seven personal delegates-at-large named by Lincoln to serve at the critical Republican State Convention in May 1860, which propelled the Springfield lawyer into that year’s presidential race. Through Korner, Lincoln met and befriended many of the German radicals who, after the failure of the 1848 revolution, fled to Illinois and neighboring Wisconsin. Along with Korner on Lincoln’s list of personal delegates-at-large to the 1860 convention was Friedrich Karl Franz Hecker, a lawyer from Mannheim who had served as a liberal legislator in the lower chamber of the Baden State Assembly before leading an April 1848 uprising in the region—an uprising cheered on by the newspaper Marx briefly edited during that turbulent period, Neue Rheinische Zeitung—Organ der Demokratie.
    …
    The failure of the 1848 revolts, and the brutal crackdowns that followed, led many leading European radicals to take refuge in the United States, and Lincoln’s circle of supporters would eventually include some of Karl Marx’s closest associates and intellectual sparring partners, including Joseph Weydemeyer and August Willich.”

    – ISR
    ____

    Everything that “Crazy Abe” Lincoln did was unconstitutional:

    – Denial of Secession – The Constitution does not preclude secession.

    – Issuance of a “proclamation” – A proclamation may only be issued under of “rebellion” or “insurrection,” NOT constitutional secession.

    – Confiscation of Private Property – Private property, which slaves had been for 250 years, may only have been seized under Eminent Domain after compensation.

    – Illegal and unconstitutional nullification of the Naturalization Act of 1802 which required citizens to be “…free white person(s)…” changing the legal status of freed slaves, upon the issuance of the unconstitutional “Emancipation Proclamation,” from that of “property” to “illegal alien” requiring immediate deportation.

    – War Against a Sovereign Nation and Undeclared by Congress – War must be declared by Congress.

    – Suspension of Habeas Corpus – There is no constitutional authority to suspend.
    ________________________________________________________________

    It follows that the actions taken by his successors were also unconstitutional.

    The “Reconstruction Amendments” constitute an unconstitutional corollary to the unconstitutional acts of “Crazy Abe” Lincoln, were forcibly imposed under the coercion and duress of post-war military occupation and must be abrogated as such.

    No act which follows a criminal act may be considered legal.
    _______________________________________________

    “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

    ― Abraham Lincoln

    That from a mortal enemy of American Freedom and the American Constitution.

    How prophetic!

    To be sure, under American freedom, slavery must have been eliminated through advocacy as free speech, boycotts, divestiture, vacating deeds as George Washington did in his will, etc.

    1. Who was a piker compared to Woodrow Wilson, FDR to Obama when it came to violating the Constitution.

  19. Anyone interested in the topic should read these cases dealing with persons born here of foreign parents. The first case involves a Chinese couple of legal residents and the second involves a child of American Indians. I’m interested in your interpretations and conclusions in view of the current debate.

    United States v. Wong Kim Ark, 169 U.S. 649 (1898)
    Elk v. Wilkins, 112 U.S. 94 (1884)

    1. FWIW, I made an “easier to read” version of Wong Kim Ark back on The Birther Think Tank. Here is the link. I have bolded certain areas, and made paragraphs.

      https://birtherthinktank.wordpress.com/wong-kim-ark-natural-born-citizen/

      My own interpretation is, that a Court could easily find that now-legal residents here are not able to produce natural born citizen children.

      At one point in Wong, the court specifically notes that Wongs parents were here legally.

      Squeeky Fromm
      Girl Reporter

      1. Elk is also pertinent as the court found the adult child of Indians – citizens of another sovereign nation – not a citizen under the Amendment. Elk did not owe complete allegiance to the US and hence was not subject to the jurisdiction of the US.

  20. It’s currently being done for your benefit, Jay. You going to give it back or no?

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