Posted on 08/27/2015 3:56:40 AM PDT by markomalley
To support his insane interpretation of the post-Civil War amendments as granting citizenship to the kids of illegal aliens, Fox News’ Bill O’Reilly is now taking job applications for the nonexistent — but dearly hoped-for — Jeb! administration, live, during his show.
(Apparently my debate with O’Reilly will be conducted in my column, Twitter feed and current bestselling book, Adios, America, against the highest-rated show on cable news.)
Republicans have been out of the White House for seven long years, and GOP lawyers are getting impatient. So now they’re popping up on Fox News’ airwaves, competing to see who can denounce Donald Trump with greater vitriol.
Last Thursday’s job applicants were longtime government lawyers John Yoo and David Rivkin.
In response to O’Reilly’s statement that “there is no question the Supreme Court decisions have upheld that portion of the 14th Amendment that says any person, any person born in the U.S.A. is entitled to citizenship … for 150 years” — Yoo concurred, claiming: “This has been the rule in American history since the founding of the republic.”
Yes, Americans fought at Valley Forge to ensure that any illegal alien who breaks into our country and drops a baby would have full citizenship for that child! Why, when Washington crossed the Delaware, he actually was taking Lupe, a Mexican illegal, to a birthing center in Trenton, N.J.
If one were being a stickler, one might recall the two centuries during which the children of slaves were not deemed citizens despite being born here — in fact, despite their parents, their grandparents and their great-grandparents being born here.
Wouldn’t anyone who wasn’t applying for a job in the nonexistent, never-to-exist Jeb! administration remember slavery?
Incongruously, Yoo also said, “The text of the 14th Amendment is clear” about kids born to illegals being citizens.
Wait a minute! Why did we need an amendment if that was already the law — since “the founding of the republic”!
An impartial observer might contest whether the amendment is “clear” on that. “Clear” would be: All persons born in the United States are citizens.
What the amendment actually says is: “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.”
The framers of the 14th Amendment weren’t putting a secret trap door in the Constitution for fun. The “jurisdiction thereof” and “state wherein they reside” language means something. (Ironically, Yoo — author of the Gitmo torture memo — was demonstrating that if you torture the words of the Constitution, you can get them to say anything.)
At least Rivkin didn’t go back to “the founding of the republic.” But he, too, claimed that the “original public meaning (of the 14th Amendment] which matters for those of us who are conservatives is clear”: to grant citizenship to any kid whose illegal alien mother managed to evade Border Patrol agents.
Whomever that was the “original public meaning” for, it sure wasn’t the Supreme Court.
To the contrary, the cases in the first few decades following the adoption of the 14th Amendment leave the strong impression that it had something to do with freed slaves, and freed slaves alone:
— Supreme Court opinion in the Slaughterhouse cases (1873):
“(N)o one can fail to be impressed with the one pervading purpose found in (the 13th, 14th and 15th Amendments), lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”
— Supreme Court opinion in Ex Parte Virginia (1879):
“[The 14th Amendment was] primarily designed to give freedom to persons of the African race, prevent their future enslavement, make them citizens, prevent discriminating State legislation against their rights as freemen, and secure to them the ballot.”
— Supreme Court opinion in Strauder v. West Virginia (1880):
“The 14th Amendment was framed and adopted … to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States.”
— Supreme Court opinion in Neal v. Delaware (1880) (majority opinion written by Justice John Marshall Harlan, who was the only dissenting vote in Plessy v. Ferguson):
“The right secured to the colored man under the 14th Amendment and the civil rights laws is that he shall not be discriminated against solely on account of his race or color.”
— Supreme Court opinion in Elk v. Wilkins (1884):
“The main object of the opening sentence of the 14th Amendment was … to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States … The evident meaning of (the words, “and subject to the jurisdiction thereof”) is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. … Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward, except by being naturalized …”
One has to leap forward 200 years from “the founding of the republic” to find the first claim that kids born to illegal immigrants are citizens: To wit, in dicta (irrelevant chitchat) by Justice William Brennan, slipped into the footnote of a 5-4 decision in 1982.
So to be precise, what Yoo means by the “founding of the republic,” and Rivkin means by “the original public meaning” of the 14th Amendment, is: “Brennan dicta from a 1982 opinion.”
Perhaps, if asked, the Supreme Court would discover a “constitutional” right for illegal aliens to sneak into the country, drop a baby, and win citizenship for the kid and welfare benefits for the whole family. (Seventy-one percent of illegal immigrant households with children are on government assistance.)
But it is a fact that the citizenship of illegal alien kids has never been argued, briefed or ruled on by the Supreme Court.
Yoo and Rivkin aren’t stupid. It appears that the most significant part of their analysis was Yoo’s legal opinion: “I don’t think Trump is a Republican. I think actually he is ruining the Republican Party.” Please hire me, Jeb!! (or Rubio)!
O’Reilly could get more reliable constitutional analyses from Columba Bush than political lawyers dying to get back into government.
…The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This seems pretty straightforward to me. "And subject to the jurisdiction thereof"
yeah why put in the clause “subject to the jurisdiction thereof” if they assumed everybody born here is automatically “subject to the jurisdiction thereof” of the USA anyway?.. they were clearly talking about persons born here with a lineage of parental ancestry that were from here not from a foreign land..
But... but... but they’re not illegals they’re PEOPLE!
Some more Resources for this:
The Book
“Cititzenship of the United States”
by Frederick Van Dyne, LL. M.
Assistant Solicitor of the Department of State of the United States
Published 1909
Archive.org has a copy you can download.
https://ia600400.us.archive.org/5/items/citizenshipunit00goog/citizenshipunit00goog.pdf
SENATOR JACOB HOWARD, SPEECH
INTRODUCING THE FOURTEENTH
AMENDMENT
Speech delivered in the U.S. Senate, May 23, 1866
http://theusconstitution.org/sites/default/files/briefs/Howard_Speech_5-23-1866.pdf
AND
http://www.yale.edu/lawweb/jbalkin/conlaw/senatorhowardspeechonthefourteenthamendment.pdf
H.R.140 - Birthright Citizenship Act of 2011 - Introduced by Representative Steve King R-IA - Looks like it was introduced and it got nowhere.
https://www.opencongress.org/bill/hr140-112/actions_votes
Just as an oft-repeated lie does not become the truth, the willful, repeated violations of the constitution by our political leaders over many decades does not make their actions constitutional. In fact, the continuance of the lies and the unconstitutional acts make them more reprehensible.
Supreme court has not weighed in Bill O’Reilly, it hasn’t been litigated yet because we’ve not had a citizenship law that made clear whelps of illegals don’t count.
The correct interpretation is they obviously don’t, nor do the children of diplomats or tourists. One of the parents must be a citizen or legal resident.
I have no confidence in the current court to rule correctly if/when the time comes, but they might. Or there might be a couple new Justices by then.
>> his seems pretty straightforward to me. “And subject to the jurisdiction thereof” <<
An ambassador and his family are not subject to USA jurisdiction, as noted by Senator Howard. They have diplomatic immunity. So if an ambassador commits murder in the USA, we can’t prosecute him. We can only expel him.
By contrast, if an illegal alien commits murder, he IS subject to USA jurisdiction. We can arrest, try and put him to death. If you think the latter step isn’t a fundamental aspect of “jurisdiction,” then you and I would seem to be living in parallel universes, meaning moreover that a rational discussion of the matter is probably impossible.
“I have no confidence in the current court to rule correctly if/when the time comes,”
The Chamber of Commerce apparently owns more than just the House & Senate.
One way is that the phrase excludes diplomats, so subject to the jurisdiction is the distinction between possessing immunity and not.
The other way is that the phrase excludes those who have no allegiance to the US, such as sojourners and invaders; as well as those possessing diplomatic immunity.
Either way, the clause has an exclusionary function. The argument is the extent of the exclusion.
There doesn’t have to be a law to start the ball rolling. Wong Kim Ark started out as a Customs/Immigration interpretation. Executive action is enough to sue over.
Assuming, of course, that the murder occurs on US soil.
A US citizen, OTOH, can be charged with US crimes, and has to follow (some) US laws, regardless of where on the planet the US citizen happens to be. Tax laws, registration for the draft, and some sex laws have that property; so the US citizen is "under more jurisdiction" (for want of a better way to say it) than the illegal alien is.
And if a diplomat can be expelled, does not that make the diplomat "subject to the jurisdiction" too? Albeit just a little bit.
I think there are cases where diplomatic immunity has been waived after the fact, by the home country, so that a murder charge can proceed. Ex-Diplomat Gets 7 Years for Death of Teen in Crash - latimes - December 20, 1997
At any rate, the issue as neat, tidy and simple as many people think.
But the Establishment want their cheap labor, so they need birthright citizenship.
>> I think there are cases where diplomatic immunity has been waived after the fact, by the home country, so that a murder charge can proceed. Ex-Diplomat Gets 7 Years for Death of Teen in Crash - latimes - December 20, 1997 <<
Yes, I remember the case. It was extensively covered in the Wash DC local media. The crime was so bad that the home country (Republic of Georgia) revoked the guy’s diplomatic immunity, after which he definitely became subject to the USA’s jurisdiction.
Don’t remember the outcome, but presumably he went to prison, with the prospect that he’d be deported whenever the prison term ran out.
Or maybe — as can happen — he was sent back to Georgia to serve his prison term in his home country. I guess he’d do OK there if his family had enough dough to bribe the warden and guards. But otherwise, a prison in the USA might be “nicer” so to speak.
Even if his immunity hadn’t been revoked by his home country, you said yourself that a diplomat can be expelled. My point was that this renders the diplomat subject to at least a little bit of US jurisdiction.
>> And if a diplomat can be expelled, does not that make the diplomat “subject to the jurisdiction” too? Albeit just a little bit <<
Yeah, but really grasping at straws. It’s extremely hard to imagine that any court — much less the SCOTUS as presently constituted — would ever agree to your point.
As much as ‘...shall not be infringed’, or ‘Congress shall make no...’
Ultimately/unfortunately, it takes an ‘elite education’ to completely screw 12+ yrs. of English education it appears.
I can’t imagine any Court agreeing with YOUR interpretation, which reduces the phrase “and subject to the jurisdiction thereof” to a meaningless absurdity.
To reach such a conclusion, a court would have to negate the legislative history of the 14th, and its RATIFICATION history as well. It’s one thing to denigrate the author’s intention since these are his words being malinterpreted. It’s something else again to denigrate the legislatures of the ratifying States who debated and recorded the arguments for and against the 14th before acting top ratify.
One might wonder why the widely misunderstood conditioning clause of the 14th Amendment, “and subject to the jurisdiction thereof” was modified from the clause of identical import written into Civil Rights Act of 1866, which the 14th was intended to codify, “not subject to any foreign power.”
One could imagine that the second formulation, if it had used in the 14th, would have avoided much of today’s debate, driven as it is by ignorance.
The answer might be that the framers of the 14th embraced parsimony of language and felt that the economical formulation chosen would permit them to avoid inclusion of the in-artful continuance of the phrase as it appears in the Civil Rights Act “excluding Indians not taxed”. They may also have wanted to continue the tradition of not mentioning race in the Constitution.
However, the inclusion in the 14th of the initial part only of the modifying phrase as expressed as in the Civil Rights Act as “not subject to any foreign power” might have been seen as implicitly as requiring the extension of citizenship to indians, something no one intended.
So, embracing parsimony, and fully intending to recreate the full meaning of “not subject to any foreign power, excluding indians not taxed.” I imagine the framers of the 14th adopted the phrase “and subject to the jurisdiction thereof” in complete confidence that its meaning would not be lost on anyone educated in the English language and the history of the United States.
But, today, we are populated by people poorly educated in English and even more poorly educated in the history of the United States. These people are quite capable of imposing non-historical, contorted interpretations of linguistic formulations whose plain meanings ought to be beyond any question.
These people are dangerous morons. It is as if the village idiot has procreated and taken over. We are in a precarious state in our country today.
>> I can’t imagine any Court agreeing with YOUR interpretation, which reduces the phrase “and subject to the jurisdiction thereof” to a meaningless absurdity <<
Well, all I can say is that it’s too bad FR can’t act as a bookie and take our bets.
I pray either POTUS Trump or Cruz tells Roberts & Kennedy they’re retiring as soon as they’re told to.
Then elevate either Thomas or Alitio to Chief Justice. I love Scalia, but he’s pushing 80. He can be the de facto/co-CJ; I have zero problems with that.
Then nominate 3 ACTUAL Conservatives to the bench.
Step 2 to saving what’s left of the country will be complete. But step 1, a POTUS with balls being elected, has to happen first.
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