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To: woodpusher

Hi.

Good scholarship and presentation. Your content regarding stare decisis is accurate.

However, Senator Howard (author) disagrees with those decisions and agrees with what I stated in my post above. Bingham is sadly on your side.

Let’s do an Article V convention and maybe settle this (and other issues) peacefully.

5.56mm


77 posted on 06/24/2020 11:50:08 AM PDT by M Kehoe (DRAIN THE SWAMP! Finish THE WALL!)
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To: M Kehoe
However, Senator Howard (author) disagrees with those decisions and agrees with what I stated in my post above. Bingham is sadly on your side.

Senator Howard wrote the citizenship clause and entered it in the Senate as an amendment to Bingham's text which contained no citizenship clause.

I believe you misconstrue Howard. He only opposed citizenship for those children of aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, i.e. those with diplomatic immunity from our laws. Indians on tribal land were treated differently as they were considered to be a seperate nation. The frequently seen quote of Bingham is not in reference to the 14th Amendment but to the prior Civil Rights Act of 1866.

The text of the 14th Amendment is what prevails, and neither the statements of Howard or Bingham make much difference. The amendment was ratified by the people, based upon their understanding of the words presented for ratification.

http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11

[2890]

RECONSTRUCTION.

Mr. HOWARD. I now move to take up House joint resolution No. 127. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing.an amendment to the Constitution of the United States.

The PRESIDENT pro tempore. The question is on the amendments proposed by the Senator from Michigan, [Mr. Howard.]

Mr. HOWARD. The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. 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.

[. . .]

[2892]

The State of California has undertaken, at different times, to pass restrictive statutes as to the Chinese. The State has imposed a tax on their right to work the mines, and collected it ever since the State has been organized -- a tax of four dollars a month on each Chinaman; but the Chinese could afford to pay that and still work in the mines, and they have done so. Various acts have been passed imposing a poll tax or head tax, a capitation tax, upon their arrival at the port of San Francisco; but all such laws, when tested before the supreme court of the State of California, the supreme tribunal of that people, have been decided to be unconstitutional and void.

Mr. HOWARD. A very just and constitutional decision, undoubtedly.

Let’s do an Article V convention and maybe settle this (and other issues) peacefully.

A Convention seems like unobtanium, and unpredictable. Probably better would be an amendment with certain language presented for ratification. That would seem about as likely as a convention. I tend to doubt a convention with the power to change the Constitution would be peaceful.

A complicating factor is the law of unintended consequences. Just holding that illegal aliens are not subject to our jurisdiction would mean they would be immune to our laws just like an accredited diplomat. They could come and shoot the place up and all that could be done is deport them. Murder would be no exception. Persons not subject to our jurisdiction are not subject to prosecution in our courts.

I don't know if you have ever seen this about the passage of the 14th Amendment, but it is a hoot. I am not the author. It originated off a very old Civil War board.

Passage of the Fourteenth Amendment

The fourteenth amendment to the constitution was arguably the most sweeping and important. It is the due process of law amendment that has caused so many to our legal system. But, few know the story of the fourteenth and how the egg of "due process" was hatched.

At the Civil War's end Lincoln granted amnesty to nearly all and "with malice towards none", all the southern states were soon functioning again in a legal and proper manner. Because the war was over his emancipation proclamation was effectively ended and so the need of the thirteenth amendment to abolish slavery. There were 36 states in the union and the necessary 3/4 to pass the constitutional amendment was accomplished easily when 10 of the southern states voted for ratification.

Then came the 39th congress in December of 1865. Article 1 of the constitution states that a majority of the either house can deny the seat to any member of its respective house of congress. The Senators and Representatives of the 25 northern states voted to deny seats to the newly elected congressmen from 11 southern states. This meant that the seated congress had 182 of a possible 240 representatives, and only 50 of the rightful 72 senators. There were 36 recognized states in the union. (Keep in mind that in the 38th congress the southern representatives were allowed to vote and have their state votes count in passage of the 13th amendment).

In the beginning of the 39th congress came resolution #48 which sponsored the fourteenth amendment. The amendment was especially important to northern liberals as it's privileges and immunities clause would sweep power from states and hand it to the federal government. The sponsors of the amendment needed a two-thirds majority of each house to submit the amendment to the states for ratification, and remember, the house is short 58 representatives from the southern states and senate 22 senators as well! The constitution states amendments need the vote of "two-thirds of both houses". Does this mean of the seated members or the available seats? Well, it depends on who is counting the votes. At the time there were 33 senators in favor of the resolution #48 which was, 23 short of 2/3rds of the full compliment and 1 short of being 2/3rds of the 50 seated members. Either way you count it, passage is doomed.

NO PROBLEM. Senator John Stockton of New Jersey was elected by a plurality and not a majority vote and was seated to the senate, he was against the fourteenth . A plurality was all that was needed by New Jersey law, and other states as well, however, Stockton's seat was taken from him (after being seated) by the senate majority because he had not received a majority vote and the 33 affirmative voting senators comprised a two-thirds majority of the remaining 49 seated senators. In the house there were 120 of the 182-seated members in favor of the amendment, 2 short of the necessary two-thirds.

NO PROBLEM. Because 30 members abstained, their numbers were not recognized at all, meaning only 152 votes were recognized and 120 is well over two-thirds of the number that voted yes or no. I remind you that the full house compliment was 240 members and that 120 is 1/2 of 240 not 2/3.

Hang on, we are only half way there but it gets better.

Now the amendment must be passed by three-fourths of the states and Nebraska has been admitted meaning 28 states must ratify the 14th amendment. By March, 1867 10 states said no and 17 said yes. California then took no action on the amendment, which was the same as a no vote, meaning there could be at most 26 yes votes when all the states were counted. Then, Oregon which had voted yes with the help of two legislative members later held not to be duly elected changed its vote to no when those two state representatives were replaced by two legitimate representatives, sure doom?

NO PROBLEM. The US Congress recognized the first Oregon vote and discarded the second even though two members of the Oregon state government were not legally able to vote and replaced by the state of Oregon, remember Senator Stockton of New Jersey? The US Congress unseated him (a no vote) because it questioned his validity as a Senator, but recognized the yes votes of State representative held to be illegitimate.

Now the 39th congress passes the Reconstruction Act that placed military occupation on 10 of the 11 southern states and denied the congressional seats to those states until they passed the 14th amendment. Many northern states began to have second thoughts about the manner and validity of these federal moves, after all, what can be done to one state can later be done to yours. California now took a stand and voted no on the 14th. Maryland, Ohio and New Jersey who first voted yes, changed to no. 16 of the 37 states now said no and 3/4ths or 28 were needed to win approval and there was at most only a possible 21 yes votes when all the remaining states voted.

NO PROBLEM. 6 of the southern states that originally voted against the amendment had their legislative bodies forcibly removed by the military occupation resulting from the Reconstruction Act and changed into yes votes. Recall that the 13th amendment was passed by the 38th congress with the original and proper representatives from the southern states. Those congressmen were recognized when voting yes to 13 but thrown out when voting no on 14. Now, what to do about those states that voted yes and then changed to no?

NO PROBLEM. The congressional leaders simply recognized the original yes votes and ignored the no votes, claiming the yeses were already resolved. In other words, the states that voted no and then forced to vote yes had their new votes recognized, those who voted yes then no did not. When all states had voted, congress and Secretary of State William H Seward recognized 28 affirmative votes for ratification.

This is how the Fourteenth Amendment was ratified and made a part of our constitution on July 9, 1868. The Fourteenth is known as our "due process" and "equal protection of the law" amendment.


78 posted on 06/24/2020 2:54:07 PM PDT by woodpusher
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