Congressional Debate on the 14th AmendmentI think that the phrase “subject to the jurisdiction thereof” in the 14th Amendment should exclude children of undocumented immigrants. Otherwise you have problems like the Chinese billionaire having many US born children via surrogates.
It’s not an open question if we consider legislative intent — that the 14th Amendment was adopted for freed slaves, not to create a birth tourism industry or to grant citizenship to children of invaders or sneak-ins.
It’s not an open question if we consider legislative intent — that the 14th Amendment was adopted for freed slaves, not to create a birth tourism industry or to grant citizenship to children of invaders or sneak-ins.
Nope, intended for freed slaves.
Why not just start with the fact that Wong Kim Ark was wrongly decided.
The Constitution confers on Congress the power to establish Uniform Rules for Naturalization not on the Supreme Court.
Not only did the Court step on the powers of Congress they ground their heal in the face of California that forbid the Chinese citizenship.
As the child of foreign nationals Wong was not Subject to the Jurisdiction of the United States but was subject to the jurisdiction of China. So the Court was also stepping on the rights of China.
To put it plainly Wong Kim Ark was an unlawful decision made on flimsy feel good reasoning.
Then we can bring up the very targeted purpose of the 14th Amendment.
The 14th was written for the sole purpose of granting citizenship to freed slaves and ensuring that they would be granted equal rights under the law.
The Court using the amendment to expand its reach beyond freed slaves in judicial activism pure and simple.
My problem with this issue goes back to elementary school, where I came to the following conclusion, from which I have not deviated:
I see this as an issue for Congress to decide, at least in the early stages. It is Congress that wrote the Amendment. It should be the job of Congress to engineer legislation, not the courts. Congress is perfectly capable of defining its intent without asking the courts ‘What did I mean.’
In short, I recognized Marbury vs Madison for what it really was - a power grab. Marshall manufactured a gap and squeezed himself into it.
It really only applied to the freed slaves at the time interpreting any other way is a real stretch (for good or bad).
I don’t think the Supreme Court really has the guts to do the right thing on this issue though
Congressional Debate on the 14th AmendmentThat’s right — despite being born in the United States and after ratification of the 14th Amendment in 1870, Indians were not treated as citizens until this Act in 1924. Clearly, the thinking was that their membership of sovereign tribes made them not “subject to the jurisdiction” of the United States within the meaning of the Amendment. So what about today’s illegal aliens makes them significantly different from Indians pre-1924?
Yes, the Indian tribes were sovereign nations and not subject to the United States. So, how is it that the US decided to grant their citizens, US citizenship.
By 1924 the US had become a nation from Sea to Shining Sea and the US government decided that having numerous sovereign governments within its borders was no longer convenient.
US decided to invoke its power over a conquered people and make them citizens like several empires before them.
This act in no way has any baring on Wong Kim Ark or making Birthright Citizenship legal law of the land.
The 14th amendment didn’t even include the Indians and I would make the argument that it was because the Indians were not under the “jurisdiction of” due to them belonging to their own nations and basically at war with the rest of the US population. At least the ones in the West.
The intent of the amendment was pretty clear, backed up by the writer’s written explanation thereof.
Only corruption would/has kept it from being enforced.
Being an engineer by education and experience, I have only occasionally opined on legal matters. I have found that when I do, I’m usually wrong. I believe the reason I’m so often wrong is that I rely on analysis and logic and know nothing about historical precedence. It seems to me that precedence is what determines much of legal findings.
To me, it’s obvious that babies born here to illegal immigrants should have no right to US citizenship. I hope I’m right on this one.
Until fairly recently (maybe about 40-50 years ago) many “civilized”,advanced,nations in Europe and elsewhere had birthright citizenship. But one by one they did away with it. As a result there are many countries that have it today but the only civilized ones are the United States and Canada.
The current interpretation of birthright citizenship is clearly wrong but we have millions of anchor babies who are aproaching middle age so this is a political hot potato.
Unwinding decades of anchor baby abuse of the system may be a political bridge too far for our Supreme Court
However, there are three exceptions to the 14th Amendment as written
The children of foreign diplomats
American Indians
People who enter the country as part of an invasion
Anyone present in the United States is subject to her laws, with the possible exception of diplomats. Break the law and you can be tried, convicted and punished. That includes immigration laws, for which violations the typical punishment is deportation.
As a public school educated non-lawyer citizen, it seems pretty plain to me. The "fix" would be a few words added to the Constitution at the appropriate spot (an amendment). The phrase "born to persons legally present in the United States" comes to mind but let the lawyers figure that out.
That would not affect those already born here of illegal parents and presumed (rightly or wrongly) to be citizens, as that would be viewed as an ex-post facto law, prohibited under article 1, Section 9.
The 14th Amendment was adopted for freed slaves to protect from Democrats who had formed the KKK to force them back into slavery; not for the misuse of today’s citizenship tourism.
Only a few countries still use this procedure and we must get out of it.
Aside from the perceived problem with interpretation, common sense says that birthright citizenship is a mistake. No other nation in the world practices it.
That being said, the cleanest argument for birthright citizenship was not mentioned at all by this author. That is, that the phrase "and subject to the jurisdiction thereof" was intended to exclude those with diplomatic immunity and their children. Because they are literally not subject to the jurisdiction of the U.S. government.
If you want to end birthright citizenship without amending the Constitution, change US law to say that illegal aliens are not subject to the jurisdiction of the United States.
The only way birth right citizenship will be ended is to set a date and state that all born before then are citizens and those born after are not. Too many people have been born here in the last 60 or so years to strip their citizenship.