The Nuance of Subject to the Jurisdiction

DonaldAx.com ^ | 11/02/2018 | Donald Ax

[DonaldAx]

I watched Judge Andrew Napolitano on the Fox Business Network talk about the jurisdiction clause in the 14th Amendment, specifically, “subject to the jurisdiction thereof.” He made the point, as I did in my previous post, that one group of people that this applies to are foreign diplomats. He disagrees with the contention that it should apply to illegal immigrants too. The point he made was that illegal immigrants are indeed subject to the laws of the country. If an illegal robs a bank and gets caught, he will be arrested and prosecuted. Therefore, the Judge concludes, they’re subject to the jurisdiction of the United States. I believe he’s not following his own logic regarding foreign diplomats. A foreign diplomat is not above the law. They can’t go around killing people, robbing banks or even excessively speed down FDR Drive. They must obey the laws of their host nation or face a citation, prosecution or even expulsion back to their home country. The reality they’re expected to follow the same U.S. laws as citizens or face consequences makes them subject to the jurisdiction of the U.S. If diplomats weren’t subject to U.S. jurisdiction, then someone with foreign diplomatic status could commit honor killings if honor killing was lawful in their home country. The fact is that while on U.S. soil, they can’t commit acts that violate U.S. law no matter what the law is from where they’re from. Therefore, foreign diplomats are subject to the laws of the United States. If everyone effectively that sets foot on U.S. soil are subject to the jurisdiction thereof, then why include the clause? Perhaps the courts will decide the clause has a more nuanced meaning. Though foreign diplomats are subject to U.S. law, they also are immune from prosecution for the crimes of their government. For instance, the Iraqi Ambassador was allowed to freely reside in the U.S. during the Iraq war because he represented Iraq’s position to the United States. The rest of Saddam Hussein’s officials were put on playing cards and hunted down, but not the diplomats. This means that foreign diplomats are partly subject to U.S. laws and partly not – nuance. Federal Immigration Jurisdiction There are multiple jurisdictions in the United States. There’s local, state and federal. If aliens break other laws besides residing here illegally, they’re subject to the proper jurisdiction depending on the crime. Illegal aliens are not, however, subject to the U.S. federal jurisdiction regarding citizenship and immigration services, except deportation. If they get caught by ICE, then they’re subject to deportation and the case can be made that they fit the definition of being subject to the jurisdiction, thereof. The nuance here is that federal citizenship and immigration services do much more than deport illegal aliens. People who are subject to our immigration laws are vetted for public safety and security; they’re given legal status or denied entry; work permits are issued and they pay federal taxes, among other things. Because illegal aliens are not subject to these federal immigration services, they do not fit the definition of subject to the jurisdiction, thereof. This is because they’ve already declared by their very acts of illegal entry or illegal visa overstay that they’re not submitting themselves to federal immigration laws. They’ve chosen to reside here unknown and under the radar. Therefore, they’re not subject to most of our federal immigration laws. The Federal government cannot vet them, allow access or deny access, issue visas which have expiration dates or collect federal taxes. How can illegals be subject to the jurisdiction of federal immigration if federal immigration doesn’t know who they are or where they are? Do you disagree, Judge, that foreign diplomats are, at least, partly subject to the jurisdiction of the United States? If you judge correctly, then why is the clause added? If you say that it’s added because diplomats are partly not subject to U.S. laws, then can’t you agree that illegals share the same nuance?

[Regulator]

Ed Meese and John Eastman made the clear distinction between territorial jurisdiction and political jurisdiction that Napolitano is either unware of or unwilling to acknowledge.

Since territorial jurisdiction is taken as a given, then due to basic rules of construction in law, a redundant phrase is not necessary. Thus “subject to the jurisdiction” must refer to political jurisdiction, not territorial.

That in fact this is the case is made clear by the Congressional Record of the debates over the 14th Amendment.

Napolitano is letting his Libertarian views get in the way of cogent legal reasoning.

[MileHi]

The point he made was that illegal immigrants are indeed subject to the laws of the country. If an illegal robs a bank and gets caught, he will be arrested and prosecuted. Therefore, the Judge concludes, they’re subject to the jurisdiction of the United States.

That is a stupid argument. Illegals can't be drafted, called to jury duty and can be deported. Foreign spies can be arrested and imprisoned or executed but that doesn't make them citizens.

Napolitano frequently doesn't know what he's talking about, and neither do you if you agree with him.

[libertylover]

Very good points.

[throwback]

I agree. Why is “subject to the jurisdiction thereof” there if it applies to everyone on U.S. soil? How are children born to citizens not on U.S. soil covered? Plus suppose a foreigner comes to the U.S. and has a child but doesn’t want their child to be a citizen. Can the U.S. compel that child to register for the draft and pay taxes? Citizenship by geography alone being the default seems nonsensical and actually a violation of the person’s rights. What if China had such a rule and I was born there accidentally. There’s no way I want that government having any jurisdiction over me.

[centurion316]

This issue of subject to the jurisdiction thereof seldom came up in Judge Napolitano’s Traffic Court.

The term is somewhat archaic, and refers to the individual who is a subject of a monarch or sovereign. If those individuals were living in the U.S., they could be prosecuted for criminal activity, but they did not enjoy the privileges of subjects (we used the term citizens). This clause applied to diplomats, members of Indian tribes, and foreigners who were temporarily in the U.S. No one contemplated illegal aliens living in our country for the purposes of giving birth to children who became citizens.
This particular issue has never been challenged and adjudicated in the Supreme Court. Don’t believe anyone who has come within 100 miles of the Nation’s Capital.

[sourcery]

The opponents of the Amendment, during the Senate ratification hearings, argued that the citizenship clause would be interpreted exactly as it has been since the mid 1960s. The authors defended against that claim by explaining that “subject to the jurisdiction” means “not subject to anyone else’s jurisdiction,” “having exclusive jurisdiction.” The Senate ratified the Amendment only because the Senate was convinced that the citizenship clause was not a general grant of citizenship to the children of most aliens / foreigners born in the United States. The states then ratified it based on that same understanding.

So if your stance is that original intent is the only correct interpretative paradigm—as most libertarians do in general, and as Judge Napolitano does in particular—then he’s going against his own principles here.

[Redleg Duke]

Napalitano is, as usual, full of himself.

[Ozark Tom]

The only option applicable to a criminal diplomat is to return them to their country. No tickets, no criminal charges, no lawsuits apply with diplomatic immunity. They can kill someone and subsequently will be returned to their home country. Alternatively law enforcement officers could intervene and kill the diplomat in disrupting an attack.

[Jim Robinson]

bump

[Chewbarkah]

Napolitano is a sophist; he knows his interpretation is false. I give him 5 Clintons for this.

Legal immigrants and legal resident aliens are under the jurisdiction of the US government.

Illegal aliens illegally residing within the US have by definition evaded the jurisdiction of the US government. They are foreign nationals, and have rights to consular access, etc. as such.

[Wuli]

It is jurisdiction in political sense, as in who is your sovereign from which you hold citizenship or at least the legal right of residence somewhere.

A visitor from a foreign nation is not even disputing that their home nation has the jurisdiction as to their citizenship, and an illegal is denying that U.S. law can even question the right to determine their’s. The former has the jurisdiction question settled by their recognized citizenship and the latter denies any application of the question to them - as though they are above the law.

[Hugin]

Gregg Jarrett was pointing out the other day that the current interpretation only came about in the 60s, and by executive order, not a court ruling or act of Congress. For 100 years after the passage of the 14th Amendment there was no birthright citizenship for children of foreigners. Trump can change it back. If the lefties don’t like it they can take it to court and let Justice Kavanaugh decide.

[Vendome]

Let me simplify for you, as I have studied the civil war amendments since I was maybe 10 and wrote a couple history papers on them in middle, high school and college.

You are subject to the jurisdiction if you are a lawful resident or citizen.

For instance Kamala Harris parents were lawful residents when she was born Oakland, CA making a Native Born American, as her parents did not become citizens until several years after her birth

A bit of a nonsequitor but, I like to point that out, should ever pretend to run for president or vice president

Post on and maybe I’ll continue the discussion with

[Vendome]

, and Judge Napolitano is flat-out wrong

Or senile

[eyeamok]

The test as to whether or not you are “Under the Jurisdiction of” is simple:

Can you be Tried for Treason??

YES- You are under the Jurisdiction of

NO- YOU ARE NOT!!!

Only Citizens can be tried for Treason

[MileHi]

Thanks

[MileHi]

Well said.

[PUGACHEV]

“Judge” Napolitano is a pompous idiot. He knows as much law as a monkey.

[DonaldAx]

I don’t agree with judge nap. Please read before spewing.