Posted on 01/26/2025 9:12:16 AM PST by SeekAndFind
The birthright citizenship dispute is surely destined for the United States Supreme Court. Is there any legal authority for that court to issue a decision abrogating birthright citizenship for the offspring of illegal aliens?
The foundational rock-bottom grandfather principle of all systems of law is that the law is the will of the lawgiver. This is what Richard II meant when he said, “The laws are in my mouth,” and it was for this very stance that Charles I lost his head.
Under this legal doctrine, a statute is the will of the legislature, and a constitutional provision is the will of the constitutional convention. The quest, therefore, of a court tasked with interpreting a statute or constitutional passage is to determine and give effect to the INTEN of the legislature or constitutional convention that drafted the legal text under review.
We are all familiar with instances where a person utters a statement he does not literally mean. Thus, one might wonder whether a court might, on occasion, find that a legislature did not literally mean what it wrote in a statute.
Yes, that does happen, and when it happens, what is a court to do? Well, the principle of interpretation is that the court must declare the law to be what the legislature intended rather than what it wrote. This distinction between literal text and actual intent is expressed in the legal doctrine that the text of a statute is evidence of the law but is not necessarily the law itself. Thus, it is that in the event of a text/intent dichotomy, it is the intent, not the text, which is the law.
Now, the birthright passage in question is the sentence in the 14th Amendment that reads,
(Excerpt) Read more at americanthinker.com ...
People coming here illegally is the key difference in all of this.
I have relatives that came but never went through the formal naturalization process.
But they came legally through predefined ports of entry.
p
The 14th Amendment that reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Two questions to answer:
1. Did the drafters INTEND to require that the mother be LAWFULLY present in the United States at the time of the birth?
2. Did the drafters intend that the newborn child MUST NOT BE SUBJECT to the jurisdiction of ANY NATION other than the United States?
There are (at least) three ways for the Supreme Court to rule contrary to the literal text of the birthright citizenship passage:
(1) Find that the drafters intended for the mother to be lawfully present.
(2) Find that the child is not subject to the jurisdiction of the United States.
(3) Find that the rule stated in the literal text is contrary to reason.
That’s what the rightful interpretation of the 14th has suggested—only if you are here with official sanction can your spawn become citizens.
The 14th Amendment that reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Two questions to answer:
1. Did the drafters INTEND to require that the mother be LAWFULLY present in the United States at the time of the birth?
2. Did the drafters intend that the newborn child MUST NOT BE SUBJECT to the jurisdiction of ANY NATION other than the United States?
There are (at least) three ways for the Supreme Court to rule contrary to the literal text of the birthright citizenship passage:
(1) Find that the drafters intended for the mother to be lawfully present.
(2) Find that the child is not subject to the jurisdiction of the United States.
(3) Find that the rule stated in the literal text is contrary to reason.
President Trump needs to start packing SCOTUS NOW with judges that will cancel out the Hypen, DEI Brown and compromised Roberts votes.
RE: only if you are here with official sanction can your spawn become citizens.
What does “official sanction” mean?
If the parents are not yet citizens but are LEGAL, PERMANENT RESIDENTS ( Green Card Holders ), is the baby a citizen by birth?
If the parents are here legally ( that is the obtained a legal visa, e.g., a legal student visa or a legal visitor’s via or a H1B work visa ), is the baby a citizen by birth?
Joe Pedo and his far left turd rollers threatened many times to repeal the Second Amendment. No one ever mentioned all the crap they’re blowing out about repealing the 14th that would take many, many moons.
Yes, that does happen, and when it happens, what is a court to do? Well, the principle of interpretation is that the court must declare the law to be what the legislature intended rather than what it wrote...[snip] it is the intent, not the text, which is the law.
This is the slipperiest of legal slopes. IMHO, upon a formal finding of legislative ambiguity or error, a court should have the option to suspend judgment, remanding said finding back to the legislative process, which too has its own fickle foibles.
Roberts’ kids are old enough that he does’t have to worry about losting custody. Maybe he has some other skeletons in his closet.
Someone else said official sanction. My position is legal process.
VISAs are temporary residence not permanent.
Children of permanent legal residents would be citizens.
The 1) legal 2) permanent bits are key.
I respectfully disagree. Someone here who's a citizen of another country is "subject to the jurisdiction thereof" another country, not the U.S. Even if that person is here legally.
For example, if I'm in another country on vacation, I'm still a U.S. citizen and still subject to the U.S. jurisdiction. The fact that I can go to a U.S. embassy and be represented there means I'm under U.S. jurisdiction, not the jurisdiction of the country I'm visiting.
The same for legal immigrants visiting the U.S. Which is the same for their offspring. For example, I never fussed about Obama's birth certificate because it didn't matter to me WHERE he was born. What mattered is to WHO he was born to: his U.S. citizen mother. She was under U.S. jurisdiction even if she was in Kenya. Thus Barak was born a U.S. citizen, even in Kenya.
Citizens and permanent resident aliens have domicile (permanent residence) in the United States.
Non-immigrants (students, tourists, H-1B/H-2B/L-1 etc. workers, illegals) have domicile in their home countries.
While in the United States, non-immigrants would be under the jurisdiction of both the United States (for immediate laws) and their home countries (for passport/reentry permission, and tax, debt, and property obligations while here), just like how Americans are still liable for filing IRS 1040s while living abroad).
Children receive their citizenship via domicile of origin. "Domicile of origin" is the domicile of their parents.
Therefore, the citizenship of newborn children of citizens and permanent resident aliens would be the United States.
Citizenship of newborn children of non-immigrants would be the home country of their parents.
-PJ
RE: The 1) legal 2) permanent bits are key.
Let’s assume that the SCOTUS will decide this way, a LOGISTICAL and POLITICAL question arises — what happens to children ( many now toddlers or even teens ) who have obtained citizenships and American Passports as a result of their having been born of non-citizen parents who are not legal, permanent residents, but were here LEGALLY?
Nope. That’s not what it has meant historically and by common law. Here’s a good article on it:
https://thefederalist.com/2025/01/24/trump-is-right-about-birthright-citizenship/
No illegal can give birth to a legal. Only legal of any specific country can give birth to a legal in that same specific country. Common sense.
They might write a “Mommy Dearest” type biography.
Read the arguments that the framers of the 14th Amendment used to explain the amendment. They clearly meant people in the country legally, not invaders.
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