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 ...
"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."
Congress doesn't have many force options at all. The Executive has the executive departments in his control. Congress controls the purse.
I can predict how it would pan out.
It would depend entirely on the issue involved, and where the public stood on it.
If Congress were seeking to do something that was massively popular and the Supreme Court was resisting, such a move would likely result in a Congressional win. The New Deal would have been an example. The President was immensely popular. The Democrats controlled Congress. The Supreme Court kept striking everything down, and this made everyone, not just the President mad. Of course, in that instance, FDR advanced his court-packing plan, and the People and Congress sided with the court. Suppose, instead, in a circumstance like that, Congress makes the move you suggest: passes a law that the Supreme Court doesn't have the power of constitutional review over that set of decisions. Suppose the President signs the act, so both elected branches are on board.
If the people are with the Congress and President, the Supreme Court can do a few things, two of which are:
(1) rule striking down the law, and the let the President and Congress decide to ignore it, or (2) decide not to hear the case, thereby avoiding the confrontation in that instance.
But now let's look at a different issue. Say, abortion or the 14th Amendment citizenship right. If the current Congress buzzsawed through a law to that effect, and the President signed it, the Supreme Court would strike down that legislation 9-0 as a usurpation of authority.
Then what?
Well, then the Democrats as a whole, plus plenty of other people in the independent and libertarian variety, not to mention more than a few Republicans (like me) would stand by the Supreme Court and loudly, strongly, and unrelentingly oppose the Congress and White House.
The ruling party that did that would lose power, the opposition would be swept in, and the Supreme Court ruling would be upheld.
Judicial review has been a feature of American democracy for 203 years. To try and sweep it away by some sort of legerdemain would be nothing short of an attempted revision of the constitutional order without an amendment. The people would, rightly, fear and oppose such a radical attack on the established order.
Majority rule in Congress cannot - and SHOULD not - be able to strike down constitutional opinions of the Supreme Court.
Interesting logic. The intent of the author is reduced to "his opinion".
Am I going out on a limb assuming you think some judge is better equipped to define the author's intent?
You don't have to answer that, I already have the answer.
Yep, a few more steps needed but this and a fence make a good start. And I mean a real fence, more like a 8 meter high wall backed by roads, then another 8 meter high wire fence for good measure.
And for the longest time Indians born on reservations in the U.S. were not granted citizenship. Later they were granted citizenship by Congress simply passing a law. In effect, the law moved them from NOT "subject to the jurisdiction thereof" to "subject to the jurisdictioin thereof" and it would be just as simple to move the children of illegal aliens out from under that clause to a category where it doens't apply. It can be done by legislation. In fact, in my opinion Medellin v. Dretke provided the first brick to build that wall with by asserting that Medellin was not fully subject to U.S. jurisdiction because he has special jurisdictional rights not available to ordinary American citizens.
"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."
This is a respectable position. I notice that you haven't taken up the charge that Marbury v. Madison was not a "usurpation", which is good and consistent with your originalist position on the 14th Amendment.
With Marbury and judicial review of acts for constitutionality, we know what the Founders intended, because the same Founders who wrote the Constitution and ratified it sat on the Supreme Court and in Congress and the White House, and handed down and acquiesced to Marbury.
This fits the discussion of the role of the judiciary as referee spoken of by Madison, especially, in The Federalist.
Is baby anchoring the original intent of the 14th Amendment?
No. Its intent was to make sure that freed blacks were citizens of the US and the States, and could be deprived of rights by neither federal nor state law.
We know that from the ratification discussion of Sen. Howard among others.
Is judicial review the original intent of the judiciary power?
Yes. We know that because Hamilton and Madison alluded to it in The Federalist, before the Constitution was ratified, and we know it because the same Founders who fought the Revolution and ratified the Constitution handed down Marbury and acquiesced to it.
Of the two principles, judicial constitutional review is the more important, and it is because of that review that a law that seeks to say that babies born in the US aren't Americans is very likely to be struck down by the Supreme Court.
If you want to take away birthright, you've got to do that by constitutional amendment.
"Interesting logic. The intent of the author is reduced to "his opinion".
Am I going out on a limb assuming you think some judge is better equipped to define the author's intent?
You don't have to answer that, I already have the answer."
I will answer anyway. Madison authored the Constitution. He had certain opinions about what various clauses meant. Those are interesting. They are not authority.
It is not that a judge is "better equipped" to determine the "author's" intent, for two reasons.
One is that the author of legislation is totally irrelevant. The relevant act is the assent of wills of elected legislators to a piece of legislation. It is their will that matters. The will of the guy who put pen to paper is interesting, but irrelevant. HE does not have the power to make law. He wrote a proposal, and had his reasons for it. But the legislature he presents his bill to has the authority to make law, and when they ratify an act, they ratify the written word, and not the opinions about the guy who wrote it. When Congress votes on an act, each Congressman has slightly different, or perhaps very different reasons and interests he is considering. These things are interesting and instructive, but they are not law, and they are not binding on anybody. The only thing that matters is the words that are passed. That's the law. Until changed, THAT'S binding on people. What's not binding, indeed, what is legally well nigh irrelevant, is the personal views of the legislators who voted on a given act.
It's not that the judge is "better equipped" to define the author's intent. It is that the judge has the legal authority to decide what the law is based on the text. The author does not have the authority to bind the country to HIS opinion of the meaning of the law he drafted. But the judge is given the authority, by virtue of his author, of binding the country to his opinion of what those words mean.
If senior judges disagree, their opinion overrides. If the legislature does not like the outcome, they can pass new legislation to try and make the law clearer. But when it comes to the authority of the Constitution itself, whether Congress or the President have the power to actually legislate at all on a given thing, THAT is a matter of interpreting the law of the Constitution itself. And the interpretive role is, by American tradition and practice, the final province of the judiciary.
Everyone can have an opinion. There must be a FINAL opinion. Under our system, implicitly before 1802 and explicitly thereafter, the Supreme Court of the United States is the FINAL arbiter in saying what the law IS.
If the people don't like that result, they can amend the Constitution to say otherwise. Until they do, or until Congress or the President establish a new precedent by successfully usurping the final decision-taking power of the judiciary, the Supreme Court is the referee, just like Madison intended when he wrote the Constitution and The Federalist.
As do I. If he meant "citizens," he should have written "citizens." It's not like the word's a recent invention.
He didn't specify, so we get an interpretation that varies from what he apparently intended. Oh, well - we go by what's actually written.
Marbury was a case of a new entity walking a tight-wire of future relevance. JMO.
I do not believe we need an amendment, rather an accurate interpretation of "subject to the jurisdiction". Also JMO.
Interesting knowledgebase you have acquired. Obviously you have read alot. But you seem unless I am mistaken to take your study and carve it in some sort of self-edifying granite.
Marbury v Madison can be revisited. I recall that the Founders especially Madison were not so keen on its initial outcome. Thinking it was not a clear threat to the Republic, and thinking that it could in time be challenged de novo, they did not oppose nor did they endorse the potential conflicting judicial authority of Marbury v Madison.
And until recent, the thinking has been for centuries that justices would eschew the potential activism provided them via Marbury v Madison. That of course is not the case now where in fact the courts have clearly usurped the People's will in numerous cases over the last few decades.
I have been informed more directly that it is the thinking of many constitutional scholars that Marbury v Madison had not been challenged because throughout most of U.S. history, jurists had not abused the authority that it provided.
I have also been informed that the same scholarly community includes an open discussion of the certainty of challenging Marbury v Madison in the coming years.
There are already legal exceptions to not grant automatic citizenship to children of foreigners posted here on official diplomatic business or those born to invading or occupying armies. I believe illegal aliens already are in the later category-- the law just needs to be clarified to classify them as such.
He did write citizens. Persons become citizens provided the are
a.born/naturalized
and
b. subject to the jurisdiction.
Illegal aliens and their offspring, although held accountable for their actions while here, are not subject to the jurisdiction.
The law is what it was when it took effect, else we have rubber laws that derive subjective meaning over time or even from one jurisdiction to the next. You may think that's the way it is, and I might agree that such is how the system operates, but it is not legitimate because any such change did not go through either amendment or ratification.
I take it you believe in a "living" Constitution.
no I am not the immigration reform acts of 1994 and 1996 were intended to end the anchor babies.
After that a child born in the USA had to be deported along with the legal guardians. When that natural born us citizen reached the age of majority, THEN they could return to the USA.
Lawyers created work arounds to this keeping families together deportation system. The child suddenly had "problems" which could only be treated in the USA. Then it became an undue hardship test.
I am crystal clear on this. I have many lawyer collegues who secured a very comforatable income on just this change in the law and the developed work around.
The anchor baby scam needs immediate action. It should be one of the major issues in '08, and should appear in '06 campaigns as well. A Constitutional amendment is necessary unless the USSC can pull another living interpretation out of their b%^&s,
Sorry it sounded like a lashing. Didn't mean to pile on.
Not so. The reason we are in this mess is precisely the converse.
I have an idea, lets just cut off all the free social services, free education, and see how many stay.
The 14th Amendement would ban "anchor babies", if Judges could read. The clause "subject to the jurisdiction thereof" clearly means citizens, and not illegals, children of foreign ambassadors, etc.
Yes, they are. "Not subject to the jurisdiction" means outside or above our laws, as in the representatives of foreign governments. Our laws do not apply to them.
It doesn't mean "people that we haven't caught yet." That's twisting the language to make it say what you want it to say.
Long Overdue, IMO.
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