Posted on 11/04/2005 5:54:41 AM PST by .cnI redruM
House Republicans are looking closely at ending birthright citizenship and building a barrier along the entire U.S.-Mexico border as they search for solutions to illegal immigration.
A task force of party leaders and members active on immigration has met since the summer to try to figure out where consensus exists, and several participants said those two ideas have floated to the top of the list of possibilities to be included either in an immigration-enforcement bill later this year or in a later comprehensive immigration overhaul.
"There is a general agreement about the fact that citizenship in this country should not be bestowed on people who are the children of folks who come into this country illegally," said Rep. Tom Tancredo, Colorado Republican, who is participating in the "unity dinners," the group of Republicans trying to find consensus on immigration.
(Excerpt) Read more at washtimes.com ...
I think it would be more prudent to say....infamously...instead of famously.
FWIW-
Ditto that..!!
Now you're talking. That's what I've been saying.
The child is a US citizen by birthright. But I would prevent the parents from exploiting that citizenship for their own gain in any way.
HA!!
Well then I guess I'll have to do cartwheels down Wisconsin Avenue at noon on a Wednesday in my skivvies, then. {g}
Can't have ya one upping me O2, can I. :o)
Of course we both know the chances of our having to make good our wagers are that of finding ice cubes in hell.
...GOPers can't *buy* spines.
They are within the jurisdiction, but are not American subjects. Get clear on the terms before constructing a virtual strawman.
Get on with it Tom! While you are begging for unity in the party, thousands of Mexicans in my area are dropping anchor babies by the ton.
There is not, and has never been, such a thing as an "American subject." You might want to "get clear on the terms" before advising others to do so.
before constructing a virtual strawman.
Post 70:I don't believe it takes an Amendment to get rid of the illegals-born-into-citizenship problem. See, the 14th also contains the phrase "and subject to the jurisdiction thereof", something that could be established does not apply to those who criminally invade our country (and the spawn thereof).
The notion that illegals are not subject to the jurisdiction of the US isn't something I proposed; it's what I was responding to. And it would be a more dangerous idea if it weren't flagrantly silly.
Duncan Hunter for President 2008!
Are you aware that prior to the Indian Citizenship Act of 1924 American Indians who remained loyal to their tribe did not receive automatic citizenship, no matter where they were born inside the country? That's because they were not subject to the jurisdiction of the US but to their sovereign tribe. It took an act of Congress to change the law.
That did not mean however if an individual had committed a crime inside the US they would not have to face the criminal justice system or would never be subject to its penalties. Your "Open the jail doors ..." is a strawman argument.
"...GOPers can't *buy* spines."
They can't even RENT one !
Most politicians are lawyers, are they not?
For a long, long time I was a military officer.
Then I became a lawyer.
The twist is I'm a French jurist, and also an American lawyer.
"I don't quite follow your question.
Presently, any foreigner, child or adult, who moves here is not automatically a citizen."
My question was pernicious, a trap, really.
Much electronic ink has been bled here about originalism, original intent, what the Constitution means, how it's not a "living document" but was, rather, fixed in stone as to its meaning back in 1787.
Of course, in 1787, anybody who got to America, so long as he wasn't a black slave, was a citizen in short order. Those were the original conditions, and that was the milieu in which the Constitution was written. There was no INS, and nobody drafting the Constitution thought that immigration should be restricted, at all. The only restriction on immigration in the Constitution is that slaves had to stop being imported after 1801 or 1806, or so, some date early in the 19th Century.
Other than that, the Founders thought that immigration was great. They wanted it, as much as possible, for it made America greater and greater.
Needless to say, conditions have changed since then. Radically. To the point that folks today want to even strip citizenship from people BORN in America, in spite of the 14th Amendment, on some sort of very strained and highly political reading of the words.
But it was true in 1868 too: Americans then wanted as many immigrants as possible, to keep building the country.
So, what I see is not any sort of originalism or "going back to the original meaning" at all. When the Constitution was written and the 14th Amendment was written, nobody had any idea in his head that immigration would be something to be RESTRICTED. They loved immigration. They relied on it to make the country greater and greater. So I get annoyed when people wrap themselves in the mantle of originalism, but then don't REALLY apply what the founders thought about an issue - like immigration (or judicial review) - but rather substitute their own very modern political desiderata as "comporting with the Founders' intent", when farthest from the truth. The Founders did not restrict immigration and did not want to restrict immigration. So anybody trying to read the "original intent" of the Constitution in a way that chokes off immigration is being very, very activist indeed, and is practicing the "living Constitution" doctrine in a very assertive way.
That would not be so bad, if they were not so aggressive (and often abusive) of anybody who opposes them.
When I asked my question about someone being born outside the States automatically getting citizenship by moving here, I was thinking in terms of original intent, and I was specifically thinking of Alexander Hamilton.
There's another component at work, that not very originalist either. Plenty of folks would welcome in Alexander Hamilton and the English with open arms. Indeed, there is a flood of illegal Eastern European immigration into America, which has brought bad side effects like the Russian Mafia, and yet I never see the anti-immigrant viewpoint expressed about the need to get all these damned Russians and Poles out of the country. No, it's Hispanics that are the target people are talking about putting up minefield and automatic guns to keep out.
I don't see much Constitutional at work in all of this sentiment, nor do I see anything originalist at all. I just see a selective nativist sentiment and a lot of political games being played with language, to try and couch extremely activist (and, I believe, unwise) politics in an originalist mantle.
My question, at heart, was really whether or not Alexander Hamilton should have been permitted to become an American by simply moving here. That was the original situation of the Constitutional era. That was the reference point of the Founders.
I too, have enjoyed the discussion.
As to the original intent of the Founders being, specifically, that the judiciary should strike down unconstitutional acts of Congress (Marbury v. Madison), I refer you to The Federalist No. 78, which describes this in painstaking, clear, and for those who say the Founders didn't intend the Supreme Court to have judicial review power, alarming detail.
Hamilton, Madison and Jay certainly thought, in 1788, that were the Constitution ratified, the Supreme Court created under it would have the power that John Marshall said it did in 1802,and to which Jefferson acquiesced.
"Legal precedent is extra-Constitutional. Are we to do an end run around the Constitution?"
Not according to the Founders' intent.
Voir: Federalist #78.
I might yet get to vote for a Republican next go 'round!
If some one doesn't like the law they will have it in the Court system before the first enforcement.
Thanks for the effort on your post.
First off, the birthright citizenship came after the Civil War, not during the time of the Founders.
The Founders were not "Thrilled" with immigration. Ben Franklin was concerned about the German presence in Pennsylvania and the border was shut down up in Maine because of the French-Canadian influence.
You mention Poles and Russians as being viewed differently than Mexicans. I believe that is because Poles and Russians are not a threat to overrun our country.
Mexicans are doing just that and many are quite vocal about retaking our southwest. Also, there is a difference in importing Europeans who assimilate and Mexicans and Muslims who have little desire to do so. Of course, I want Russian organized crime to be hammered, just like we had to with Italian organized crime.
I am aware that birthright citizenship came after the Civil War, and not during the Revolutionary era, but let's not be tricksy. There was no formal immgration code in the 18th Century. Things were not standardized. If you were white and born in America, you were a citizen. There was no statute to say so, because there was nobody disputing it. It wasn't an issue.
The birthright business had to be written into the Constitution post-Civil War, not to restrict foreign immigration or to draw some sort of line in the Atlantic, but for homegrown reasons. The country, especially the South, was full of racists. The Civil War was over and the slaves were free, but white Southerners had no intention whatsoever of permitting former slaves from having full, equal rights and powers.
And thus was born the whole malicious effort to figure out a way to PREVENT the natural order of things: that native-born blacks would be citizens. Every expedient was used for one hundred years to prevent the numerous black population from having full equal rights and voting power, because that would mean a concomitant loss of command on the part of whites, especially Southern Whites.
The 14th Amendment and birthright citizenship didn't have anything to do with Mexicans or Italians. It was aimed at American whites who were trying to play legal games to prevent American blacks from being among the class of persons protected by the Constitution.
So, now the language is there.
If people have a problem with Mexicans, stop them at the border and rigorously enforce deportation procedures to empty out the illegals within America. But according to the Constitution, someone born in the US is a citizen, and that is not going to be able to be gotten around by legalistic legerdemain. If we don't like the effects of that in the 21st Century, then we have to amend the Constitution. Grandfather clauses and the like have a bad old history, and enough people don't want to go that way that it won't happen.
Building a wall and deporting illegals will work.
"It appears that the court is subject to the limitations imposed by the Congress. That seems to be in direct contradiction with the rest of the discussion in #78 and #81. I would be interested in your views on this?"
I have many thoughts on this.
The foremost is to pull back and have some perspective on 1788, on the author of the two articles of the Federalist you cited (Alexander Hamilton), and on the question of authority.
In 1788, when the grand debate over the new Constitution was taking place, America was striking out into the unknown. The new government was just that: new. There was no historical model for a large representative republic. Nobody knew how it would really work, so the Federalist papers, and the Anti-Federalist papers, are all speculations about how things would work, or were intended to work.
When one speaks of intent, it is always difficult to assign "intent" to a decision made by an assembly. A case in point is the difference between Alexander Hamilton, who was one of three New York representatives at the Constitutional convention, and his fellow representatives. They were sent by Governor Clinton, and they opposed the project. So, what was "New York's intent" at the convention? Was it Hamilton's? Or was it the majority of the delegation, who opposed the new Constitution project? Hamilton himself envisioned a strong monarchic system, and did not particularly like the structure agreed upon. He thought it was too weak. Madison didn't love the structure either, but considered it the best to be had. It is probably fair to say that NOBODY at the Constitutional convention was fully satisfied with the product, thinking the new government too strong or too weak. The Constitution is a political compromise document, wrought through the usual process of sausage making that is legislation.
There is a tendency to lionize the Founders as practically superior beings with supreme insight into the workings og government and a clearer vision of the future than any who came before or after. But this is simply untrue.
Nowhere is that made clearer than in the parts of the Federalist where Madison extols the virtue of the new Constitution because it will prevent the rise of factional parties which have plagued all other republics. But the end of Washington's term, factional partisanship had already become so ferocious that he sternly warned against it, utterly in vain, in his farewell address. The Founders of the Constitution did not INTEND for there to be any political parties at all. And yet within four years of the setting up of government, the very factionalism that they had piously intoned against with flowerly language in the federalist was raging in the land.
They were not prescient. And they didn't speak with one voice. Indeed, in Jefferson's government Madison took positions that were diametrically opposed to some of what he wrote in The Federalist a little over a decade before.
The government developed and operated in ways that were surprising to all parties, even in their lifetime.
In the debates at the time of the adoption of the Constitution, an open issue which was not resolved was precisely the one that was addressed in #78, and in Marbury, and that is still being debated today. Where does the FINAL decision lay? Is it with Congress? Or with the Court? Or does it lie in the Executive?
Nobody had an answer to that.
If you read #78 carefully, you will see that Publius writes that the Supreme Court would strike down unconstitutional laws, but there's an implicit assumption that Congress wouldn't really pass them. That is why the discussion is confused, and why there is confusion between 78 and 81. Similarly, Madison initially debated AGAINST having a Bill of Rights, because he said that enumerating rights would IMPLY that there were others that the government could take. But by the time of adoption, seeing the ferocious resistance to the new Constitution across the republic because so many people simply did not TRUST the Constitutional project without a Bill of Rights, which is to say they did not AGREE with Madison and with those who said that everything would be fine without one, Madison came around to the position that a Bill of Rights was necessary.
We should remember that when The Federalist was written, it was written by partisans of the new Constitution. It was by no means a sure thing that it was going to be adopted. It might be rejected. They wrote to CONVINCE people that it was a good thing. They did not write with the sort of lofty authority of hindsight or the detachment of an historian. They were advocates of a position. In short: the Federalist Papers are PROPAGANDA for a cause. That's not to say that they are to be rejected. It is to say that where the new Constitution had holes in it...like "What happens if there's an unconstitutional law passed by Congress", the Founders had no good answer for that. They didn't really KNOW. So, the Anti-Federalists wrote, essentially, that the new government was sure to grow very powerful and start doing unconstitutional and intrusive things...and they proved to be right. And the Federalists wrote that the new Constitution would address those abuses through various means, like the courts and elections, and they were also right.
So, the real answer is that the Federalist is confused on judicial review, and on political parties, and on the authority of the President, and on a lot of other things, because they weren't fortune tellers but advocates of a position, trying to argue that everything would work out alright. Pressed into the corner, the Federalist paper authors said that judicial review would prevent Congress from abusing power. And they also wrote that Congress could limit the court from abusing power. And the two things simply stand in conflict.
They didn't know.
American experience with the law was similarly in conflict.
In the English Common Law, there is no judicial review of Parliamentary acts to strike them down for unconstitutionality, and the Parliament can amend the British constitution by a simple majority vote, like any other law.
But the American colonies' legislatures' acts WERE subject to being struck down by a superior court, the British Privy Council, which sometimes nullfied acts of the colonial legislature on the basis that such acts were incompatible with traditional English rights and liberties.
For example, when Pennsylvania's Quaker-dominated legislature passed an act in the early 1700s that prohibited slavery in Pennsylvania, it was struck down by the Privy Council on the basis that it violated the liberties of Englishmen by abridging their property rights. Had the English Parliament passed the identical act in England, then or today, there is NO appeal to any judicial power. Then, the King could have vetoed it, but that was the only check on Parliament.
So, which model were the Americans following?
To be frank, neither. They didn't like the Privy Council, but they were also afraid of Congress abusing its power (hence the Bill of Rights).
So, my view on the conflict in the Federalist papers, in a nutshell, is that the view of the Founders on exactly how the Judiciary would be a check on Congressional abuse was muddy. They didn't know how it would work out, and mainly assumed that Congress was limited enough to not be able to abuse power. Most Americans didn't buy the Founders' arguments on that, and didn't have enough faith to adopt the Constitution on the Founders' terms, but demanded a Bill of Rights.
And when partisanship roared to fore, contrary to all sunny predictions in the Federalist papers that party spirit would be muted, it was found after the 1800 election that some arbiter was wanting between an Executive controlled by one party and a Congress partly controlled by a bitterly opposed party. The Supreme Court became the referee, in Marbury v. Madison, many people were angry, but the ad hoc solution sufficed, and so they went with it. Some had thought it would work that way. Others had not. And still others opposed the very thought of it.
In 1788, when The Federalist was being written, it was only dimly seen that the Supreme Court might serve such function. It may never have. If, for example, the Federalists had won the election of 1800, things might have gone in a very different direction, and a long tradition might have been established of the US Supreme Court being like the high court of England, and not a political branch.
Was the Supreme Court INTENDED as a check on Congress in 1787?
The only answer that one can come up with is: by some, not by others, and most didn't think the issue was a real one, because they were focused on other pressing things.
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