GOP mulls ending birthright citizenship

THE WASHINGTON TIMES ^ | November 4, 2005 | By Stephen Dinan

[.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.

[GrandEagle]

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

Just because they assumed the power, does not mean that the Constitution grants it. There is no authority granted in the Constitution for the courts to "review" laws.
BTW, this was an excellent post. I had not read about this ruling before. However, it is much like a judge ruling that he is the jury and passing sentence. The sentence may remain, but it is still not legal.
Remember, the Constitution DEFINES the roles and authority for each branch of government.

I did find reading about this ruling quite interesting. There was a great discussion in either the federalist papers or the anti-federalist papers (It has been many years so I don't remember who) about the power of the judiciary. The consensus of both the federalist and the anti-federalist was that the Congress, since elected, must be the most powerful with the executive and judicial departments behind them. Actually, the executive wasn't much more than a figurehead. But anyway, it was interesting to see the change in opinion once in power.

GE

[ozarkgirl]

And before somebody accuses me of blending reality and fiction, the film was based on a true story.

What makes you say it was factual? According to the web site, it was purely fictional http://www.theterminal-themovie.com/main.html

[Clemenza]

Again, look at jobs created in the service economy in upstate New York, and you will see that it is negligible compared to NYC, Florida, or Arizona. The thing is that there are native born folks working in food service, hospitality, landscaping, etc. in those states, but there are more jobs than workers. Hence the illegals working there.

[Reaganwuzthebest]

Illegals by their very presence create a strong need for increased services, many of those government related. There's a tradeoff to that, yes there's more restaurants and hotels for illegals to work in but there's also increased social costs that include schools, jails and hospital.

It's not a vast wasteland up here, there are thriving communities that do fine, get the work done and remain liveable without the increased tax burden and social unrest illegals bring.

[Clemenza]

Agreed. Which is why we need REGULATED LEGAL immigration in areas with labor shortages. The problem with the illegals is 1. They are an affront to the rule of law and 2. The men work, but then bring their wives and children, who are a drain on social services. The old bracero program, where MEN would come from Mexico on work contracts, and were then returned, was a good idea IMHO.

Again in an area like NYC, South Florida, and Phoenix, there are more low-level service jobs than their are natives to fill them. This is not the case in upstate New York, western Kentucky, or rural southern Ohio, but that has more to do with the lack of dynamism in the local economy than anything else.

[highball]

Ah, but if you're looking at the intent, rather than just the plain language of the Amendment, then you'd have to agree that there is a "Wall of Separation" between church and state.

If he wanted to "settle the great question of citizenship", he could have done so with the language of the amendment. He did not, or rather in failing to specify, he did but didn't define it in the manner he intended.

[Reaganwuzthebest]

This is not the case in upstate New York, western Kentucky, or rural southern Ohio, but that has more to do with the lack of dynamism in the local economy than anything else.

It may also have to do with supply and demand. Illegals mostly from Mexico are going to open more ethnic restaurants, which in turn requires more workers. This area on the other hand will only allow that amount to thrive which can support the smaller market. Without illegals that would most likely be the dynamic throughout the country.

Which is why we need REGULATED LEGAL immigration in areas with labor shortages.

I've no problem either with legal immigration that's regulated and not excessive. The economy benefits from that as long as the immigrants are self-sufficient and not a social burden as illegals tend to be.

[highball]

What makes you say it was factual? According to the web site, it was purely fictional http://www.theterminal-themovie.com/main.html

http://www.straightdope.com/classics/a990820.html

Check it out - Iranian national Merhan Nasseri has been living in the Charles DeGaulle airport since 1988. He was a man without a country for a decade

Of course they would say the story is entirely fictional - why share credit? DreamWorks did pay Merhan Nasseri $250,000 for his story.

Regardless, I only brought it up as an example of someone who was unable to return to his home country, and therefore begame a stateless person. Just to show that it does happen, although it's rare.

[Killborn]

Fair enough.

[ozarkgirl]

#268

That's interesting...I'll have to check it out.

[Killborn]

If it werwn't for welfare, a lot (but not all) of the problems of illegal immigration would fall in one fell swoop. They wouldn't be such a burden on taxpayers and the system when there is no system. Not to mention that welfare is bad for Americans.

[Jim Noble]

As I recall, the Supreme Court created this power for themselves out of whole cloth and that it is nowhere enumerated in the Constitution.

The Constitution divided the powers of the British monarch (To make laws, to carry them out, and to punish lawbreaking and adjudicate disputes) among three co-equal branches of the government.

There is no question that the Judicial Power of the United States is vested in a Supreme Court, but Congress may ordain and establish inferior courts to share the work.

You dispute that the Judicial Power of the United States includes the power to invalidate laws made by Congress. This is not so clear to me.

[Centurion2000]

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.

NOW we're talking the right kind of action.

[GrandEagle]

We would be getting into an interesting legal paradox if the Supreme Court overstepped their Constitutional Authority by unconstitutionally making a ruling in an area of law where Congress had constitutionally limited their jurisdiction.

In the end, the judicial branch has no enforcement options. It simply makes rulings. It would be an interesting set of events to watch pan out though. The Congress, has enforcement by force options, a luxury the judicial branch doesn't have. A bit like Dred Scott, the court ruled, the legislative and executive branches didn't concur so they just ignored the ruling. If nobody backed down, the Congress would ultimately win either by default or impeachment of the judges.

Cordially,
GE

[moehoward]

To me, the language is plain. Adding the authors thoughts behind those plain words removes any interpretation. As others have said, it would have been simply inconceivable to these men that this country would sit idly by while being invaded by the millions. Therefore putting too fine a point on the issue somewhat silly.

The "wall" is another issue entirely. Not referenced in the constitution, only in one man's correspondence to another. When one researches the circumstances surrounding the letter, and reads the original unedited letter. The "intent" of the phrase becomes likewise quite clear.

More here:
http://www.usconstitution.net/jeffwall.html

[highball]

So sometimes you follow the language, sometimes you follow intent?

I know you think the language is plain in the 14th, but I think it's plain too, and I draw the opposite conclusion from yours.

[jackbenimble]

There is no question that the Judicial Power of the United States is vested in a Supreme Court, but Congress may ordain and establish inferior courts to share the work.

I agree with this but you left out the part where Congress has the power to limit the jurisdiction of both the inferior and the Supreme Court. Article III Section II:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

And then you say:

You dispute that the Judicial Power of the United States includes the power to invalidate laws made by Congress. This is not so clear to me.

I dispute the notion that such a power can be found in the text of the Constitution. The power though does exist. As other posters in this thread have pointed out, the Supreme Court siezed this power for itself in Marbury v Madison. They essentially manufactured that power for themselves out of whole cloth. The precedent in that case is enshrined in Constitutional Law and is unlikely to be overturned.

But I doubt that the Marbury precedent supercedes the clearly written Constitutional authority of Congress in Article III, Section II to limit by exception the jurisdictional authority of the Court. It would put the Court in the position of ruling that those particular words in the Constitution which give the Congress power to limit its jurisdiction did not mean anything and could be ignored. If the court start ruling that we can just ignore stuff in the Constitution then we might as well not have one. It would be ironic if the Supreme Court overstepped its Constitional Authority by unconstitionally ruling that the Congress does not have the Constituional authority to limit its jurisdiction. When the Constitution ceases to have any meaning then all of this discussion about the 14th Amendment and the meaning of the words "And subject to the jurisdiction" becomes moot.

[Vicomte13]

"Exactly which clause in the Constition grants the Supreme Court this power and jurisdiction to review acts of Congress for Constitionality in the first place?"

Nowhere. It is implied by vesting the judicial power in the Supreme Court. The power of judicial review was first tested by the Supreme Court in 1802, in Marbury v. Madison. The Founding Fathers were running the country then. Congress didn't attempt to strike down the decision, nor did the President call out the militia, nor did a constitutional amendment or other legislation get passed slapping it down. It was an implied power, discussed by the Founders (Madison referred to it in The Federalist), and put into practice by the Founders with no formal legal or constitutional opposition when they did it.

That power has been used and understood ever since. The words do not appear in the Constitution. It is the fact of the Founders' act in Marbury v. Madison (the same Madison who wrote about the judicial referee in The Federalist) that demonstrated by act that the implied power of judicial review was real.


"As I recall, the Supreme Court created this power for themselves out of whole cloth and that it is nowhere enumerated in the Constitution."

It is nowhere enumerated in the Constitution. The Supreme Court asserted the power, which was discussed during the ratification period, in Marbury v. Madison. Neither Congress nor the President, composed of the Founders themselves, moved to strike the decision, override it or amend the Constitution to prevent it. It stood, among the Founders themselves, because it was their original intent. They wrote the constitution. They decided Marbury. They didn't strike down Marbury. It was their intent that the Supreme Court should have this power.

"On the otherhand, the power of Congress to limit the jurisdiction of the Supreme Court is clearly written into the Constitution in black and white."

Yes, it is. But law in Common Law countries is made by courts and by statutes. The Founders did not pen judicial review for constitutionality into the document, because they conceived of "the judicial power" entrusted to the Supreme Court as including the power of constitutional review. We can go through some of the Federalist Papers if you'd like. When the circumstance first came up, in Marbury, the Supreme Court used the power, and the Founder in the White House: Jefferson, and the Founders in the Congress, didn't strike it down or otherwise act as though this was anything other than the way they had designed the system. It was their INTENT that the Supreme Court have this power. They didn't WRITE it, but they ACTED IT OUT.
The Constitution is not the Bible, and the Common Law is not Sola Scriptura.

"We would be getting into an interesting legal paradox if the Supreme Court overstepped their Constitutional Authority by unconstitutionally making a ruling in an area of law where Congress had constitutionally limited their jurisdiction."

Yes, we would indeed. And that is why it would provoke a constitutional crisis which would be a test of power decided by the public. I expect that, were the issue to be lex solis citizenship and the 14th America, the Supreme Court standing, 9-0, on Marbury v. Madison would trump a newfangled interpretation of the jurisdiction clause in Article III by Congress. The People would see, properly, that Congress sought to eliminate judicial review, and would not acquiesce to such a radical change of the constitutional structure of the country.

"People who are arguing that the Supreme Court has this power are advocating a system very similar to Iran's where an unelected group of Mullahs reign supreme and can over-rule anything done by the elected rerpresentatives of the people."

Hogwash.
People who advocated that the Supreme Court has this power included Alexander Hamilton, James Madison, John Marshall and Abraham Lincoln. Are they reduced to a bunch of Taliban because they think Marbury v. Madison was rightly decided and you don't?

[Vicomte13]

Senator Howard's opinion is just that: his opinion.
It is not the 14th Amendment, and doesn't define what the 14th Amendment means. It means what it says, because that's what the states ratified. What he says he wanted it to mean is an interesting vignette in history. It is not binding authority.

[moehoward]

I follow the words in the Constitution. It's nice to be able to seek out the authors intent behind those words when so many today seek to warp those words into something other than intended.

In matters -such as the so called Wall- all we can do is attempt to ascertain intent since there is no official document defining such a thing.

For what it's worth, the conclusion you're reaching is also the opposite of the amendment author's.........