We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship

National Review ^ | 08/24/2015 | John Eastman

[Sasparilla]

Accurate analysis.

[Mr. K]

The judge who ruled on the 14th amendment case said it best: “No one can become a citizen of a country without its consent”

In other words, you can’t come here illegally, drop a kid over the goal line, and claim winnings.

[Mr. K]

If “jurisdictions” meant merely being present on our soil and then obeying our laws (excluding, apparently, illegally arriving here), then there would be no need for that word “jurisdictions”.

It would be simpler and MORE EFFECTIVE to simply say “anyone born here is a citizen” if that is what they meant.

But they clearly did NOT mean that.

[frog in a pot]

So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly.

Clearly the basis for a new president's first Executive Order.

[Cboldt]

-- Accurate analysis. --

Yes, for what it's worth. Courts are not beholden to correct application of precedent or "accuracy." No doubt there are sentences in the law, here and there, that when put in isolation will reach the opposite conclusion. Courts will choose whichever language fits the predetermined outcome.

[Cboldt]

-- If "jurisdictions" meant merely being present on our soil and then obeying our laws (excluding, apparently, illegally arriving here), then there would be no need for that word "jurisdictions". --

Yes there would. Diplomats and invading armies. That's the extent of application of "subject to the jurisdiction", as popularly applied by courts for the last 100 or so years.

[Tucker39]

Under “INFORMATION YOU NEVER ASKED FOR”: Just last week a friend was startled to learn that Sasparilla or Sassaparilla is NOT the correct name of the soft drink which was the butt of jokes in saloons of the old wild west.

The name is Sarsaparilla. Sasparilla is a bastardization of it by the oldtimers who drank it and/or made jokes about it. Very similar to the bastardization of the name “Vacquero” for cowboys south of the border, which became Buckaroo among American cowboys.

Have a great week, Sassy.

[Drew68]

So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants.

Every is talking about repealing, reinterpreting or rewriting the 14th Amendment in regards to the children of illegals.

If we enforced our borders, it wouldn't be an issue in the first place.

[Jim Noble]

It’s a good point you make about courts.

The chances that the Mark Levin argument about the meaning of “jurisdiction” will prevail in any currently constituted US Federal court are zero. This is a fact, really behind dispute.

Either the Constitution is amended to correct this error, or the current situation will go on. That’s all there is to it.

Since the illegals damage the States and their budgets more than anything else, getting 38 states to ratify a simple amendment should be simple. Sending such an amendment TO the States for ratification is far from simple, however, since the Cheap Labor Express holds strong majorities in both Houses of Congress.

[11th Commandment]

Excellent, so for all the anchors who used the Wong Kim Ark to show anchor babies are citizens, the case actually proves otherwise...

In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States — “domiciled” here, to use the Court’s phrase — was a citizen.

[Terry L Smith]

It is time to re-enact, as we Americans love to do, the very actions President Eisenhower took on illegal immigration.

I might add, if they do not get on the vessel of conveyance, discretionary applications of non-existence might be in order.

[Jim Noble]

“No one can become a citizen of a country without its consent”

Think that through (I agree with the sentiment).

Where do you draw the line?

My seven children were born to two US citizens, themselves born to two US citizens each, on US soil.

Do they require consent of the legislature, or the people, to be recognized as US citizens at birth?

My wife is eligible to become a citizen of Ireland through the one-grandparent rule. Does this affect the process by which our children become US citizens?

I understand what you are trying to do. The concept is clear, putting it into amendatory language which doesn't screw something else up is not simple.

[Sasparilla]

...Courts are not beholden to correct application of precedent or “accuracy.”...

Judges, when making decisions will quite often tell their clerk to write the decision, and instruct them to find a way bending and stretching precedent and controlling law, and do it in such a way that what is a laughable ruling actually comes across as plausible.

[Mr. K]

Boy did you miss my point. If they apply the meaning as merely being on our soil, then it is better NOT TO have that language.

[Mr. K]

You already and automatically without question have that consent by living here and being US citizens. You don’t require anyone to give you consent.

If you are here ILLEGALLY, though, then you don’t have the consent of the government to be here in the first place, let alone the consent to drop a kid and have him automatically become a citizen

[Rusty0604]

This country is being brought down by judges in our courts interpreting the law as it suits them.

[Ann Archy]

NO MORE BIRTHRIGHT CITIZENSHIP!!!

[longtermmemmory]

take over the law schools means take over the judges.

law schools are due for a purge of the left wing professors. Remember law professors are refugees from the real world.

[nathanbedford]

Justin Lollman. in his note in the Virginia Law Review accepts the case against birthright citizenship by aliens made by Prof. Chapman in this article but digs deeper and extends the analysis further.

In essence, he picks up the article with the 1898 case of United States versus Wong Ark and finds that the issue of course turns on the meaning of "subject to the jurisdiction" and he looks to the case and to the legislative and constitutional history to determine that meaning. You will note that Prof. Chapman talks about the Supreme Court in the Wong case finding that the parents of the birth child in question were "domiciled" in the United States. He concludes with Chapman that jurisdiction means allegiance. Chapman creates two categories geographical and legal allegiance but also notes the influence of domicile.

Here is where Justin Lollman goes a step further than Chapman. Lollman agrees that the allegiance of the parents of the child determines jurisdiction but insists that it is the reasoning of the Supreme Court that domicile determines allegiance. Without setting forth at length the arguments in support of this proposition, I leave it to the reader to investigate as he pleases to determine whether the arguments marshaled in support of the idea that domicile determines allegiance and allegiance determines jurisdiction and jurisdiction determines citizenship, is well made in the Virginia Law Review article.

So far opponents of birth citizenship should be happy whether one accepts the Chapman version or the Justin Lollman version but now Lollman takes yet another step beyond Chapman. His analysis tells him that domicile is a question of residence plus intent but not a question of legality. Therefore, illegal aliens who set up residence with the indicia of an intent to remain in the states have established domicile and therefore their children are entitled to citizenship status. The two authors are not in conflict over this next step because they do not engage in the argument except the Chapman thinks the matter is concluded by the assertion that children of illegal aliens are excepted. Again, the reader will have to satisfy himself by resort to the Law Review article.

A good homegrown discussion can be found here