25 Thoughts to “Not So Fast with Repealing the 14th”

  1. Its the 16th amendment we want repealed. And possibly the 15th. We just want the 14th clarified as to the status of citizenship to children born of illegal aliens.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,…”

    “and subject to the jurisdiction thereof” is the clause that possibly means that they are not citizens. If that is the meaning, then Americans need to find a way to enforce it or we need another amendment to remove it.

  2. George S. Harris

    I know they are not exactly PC any more, but messing with the 14th amendment reminds me of the Uncle Remus tale about touching the Tar Baby. Given Congress’s penchanct for screwing things up, it may be that we have to let well enough alone. Having said that, rather than change the 14th Amendment, I would offer we consider a new amendment that clarifies the status of infants born here whose parents are here illegally. A sort of “fruit of the poisoned tree” thing. If the parents are here illegally and they have a child here, then the child should also be considered to be here illegally. Yes, I know, some will say that this is visiting the sin of the parents on the child and that the child didn’t have a choice in where it was going to be born. I say, “So what!” If we say we don’t wan’t illegal immigrants here, then we don’t want their offspring here either. Let’s close as many loopholes as we can. The child should have not higher legal status than that of the parents. If parents are here on a work visa, the child has the same “status.” Same with a student visa, etc, etc., etc.
    I can hardly wait to see the comments of others–good topic Moon.

  3. George S. Harris

    @cargosquid
    Why would you want to do away with the 15th Amendment? The 16th I can understand, but how do you propose to finance the government? Or are you planning to do away with government, which means you and I losean important source of income.

  4. Formerly Anonymous

    Can we have an open thread for this week please? I have written something that would be more appropriate to post there than in any of the existing threads. And if I use last week’s thread no one will see it.

    As for the topic of this thread, I am going to take the high road and not comment. (Unless you really want to see the fur fly.)

    ~Formerly

    1. We have one every week. I am just not moving very fast this morning.

  5. Oh let the fur fly, Formerly. That’s the reason its there.

    Your open thread is up also–Just not sitting in top position.

  6. @George S. Harris
    Sorry, I meant the 17th amendment. Direct elections of Senators. Sorry.

    There are many ways to finance the government. We seemed to do quite well without this intrusion into the finances of the citizenry. Of course, we would have to downsize government. Oh, wait, I’m a member of the Teahadist movement. That would be ok with me.

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” seems to me that it could apply to the the way the IRS demands knowledge of your life.

    A national sales tax could replace the income tax or more tariffs. The IRS, as it is today, is misused by the powers that be against political enemies.

    Of course, the money junkies in Congress would never repeal it, so I’m settling for the possibility of a flat tax, no loopholes, on every dollar past the poverty level. OH NO! A conservative is advocating more taxes on poor people. Yep. Too many pay no taxes and therefore have no dog in the fight against government spending.
    Flat tax of 10-14%, no capital gains, no inheritance taxes. If Russia can do it, why can’t we?

    A return to a smaller government that follows the Constitution, ie, do we REALLY need all of these departments?, would help reduce the cost of government. NO MORE BAILOUTS OR STIMULUS.

    Get rid of the departments of Education, Energy, Homeland Security, Labor, and Veterans Affairs. Either outright, or put the functions into existing Departments. VA can be put back into Defense, as could many DHS functions, etc.

    Your mileage may vary….

  7. Whoa. Give Northern Virginia a little time to wean off the teat of the Feds before you shutter all those buildings in DC.

  8. marinm

    To those interested in the 2nd/14th issue raised in McDonald v. Chicago – the ruling itself is a good arguement as to incorporation of the 2nd via the 14th but the treasure trove is in Scalia’s rebuttal to Stevens. It’s brutal and does not hold any punches (and adds a few kicks, bites and elbows for good measure).

    It’s plain to see that the 2nd relied heavily on the idea that if you incorporated other parts of the BoR’s then it makes no sense to make a ‘values judgement’ on the 2nd to somehow restrain it. if the 14th is to have full meaning the 2nd has to be able to stand.

    Alito points out how throughout American history blacks have been disarmed and slaughtered without any effective means of self defense and that Congress has tried many times to remedy this with civil rights legislation.

    One powerful para to me is; 18In South Carolina, prominent black citizens held a convention toaddress the State’s black code. They drafted a memorial to Congress, in which they included a plea for protection of their constitutional right to keep and bear arms: “ ‘We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and beararms shall not be infringed . . . that the late efforts of the Legislature of this State to pass an act to deprive us [of] arms be forbidden, as a plain violation of the Constitution.’ ” S. Halbrook, Freedmen, The Fourteenth Amendment, and The Right to Bear Arms, 1866–1876, p. 9 (1998)(hereinafter Halbrook, Freedmen) (quoting 2 Proceedings of the Black State Conventions, 1840–1865, p. 302 (P. Foner & G. Walker eds. 1980)). Senator Charles Sumner relayed the memorial to the Senateand described the memorial as a request that black citizens “have the constitutional protection in keeping arms.” 39th Cong. Globe 337.

    That an American has to beg and plead for his ability to keep his firearm because the State wants to take it from him.. It’s disgusting to me.

    Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men.6 Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed.7

    You see something like that and then wonder why the NAACP would argue against the 2nd?

    All in all a good read. I understand that Slaughter-House Cases was not overturned but that Gura won and did so without the NRA (some would argue that the NRA impeded this case and only ‘assisted’ after they had no other option) will be a lasting legacy. But, I believe the best testiment to the freedom secured here is that less of the sons and daughters of Chicago have to die because they may soon be able to defend themselves.

  9. marinm

    BTW, I think there will be a lot of discussion on abortion, gay marriage and other social questions that are affected by this ruling (see Scalia’s concurrance and look to Thomas’s interpretation of P&I vs. DP)

    But, I’ll leave that to other readers to bring to the table. I’ll give you a hint – I don’t think gay marriage would survive the SCOTUS at present based on the findings in McDonald.

  10. The decision can be found here. http://www.supremecourt.gov/

    Be warned, when I clicked on 6/28/10 – McDonald v. Chicago
    it came up blank. Perhaps the server has been overloaded.

  11. marinm

    I love the post about 300K hits on SCOTUSblog. I tried getting in as soon as I got the VCDL alert on my iPhone and SB was struggling to stay up.

    I think in the coming days (Kagan’s hearings I think are blunting the academics from looking at McDonald) you’ll see more analysis but I for one see our enemies driven before us and am listening to the lamentation of their women. Sorry Conan, had to borrow that.

    But, isn’t it interesting to see Stevens argue a ‘states rights’ argument for trying to ban guns from civilian ownership? ………interesting if not wrong in so many ways. My thanks to Scalia for taking him out to the toolshed.

  12. marinm

    http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf is a better link for those interested.

    Sad that only 1 vote meant the difference between freedom and tyranny.

  13. Marin, there are a lot more things keeping you from tryranny than that vote.

    I do find it rather funny how the old states rights keeps shifting, depending on convenience to ones personal beliefs.

  14. Many people feel that Roe v Wade is 1 vote away from tyranny. You might not think that but until women were in the position of controlling their own reproduction, they really weren’t equals in their own society. And that doesn’t mean everyone has to run out anbd have an abortion. Roe is grounded in Griswold and Griswold is the key to women have un fettered access to contraception.

    You start chiseling away at some of these court cases and the entire house of cards comes tumbling down. Some people look at their freedom with a gun…..no…Moon…don’t go there.

  15. marinm

    MH, you actually summed up Scalia’s arguement against Stevens very nicely. 🙂 The house of cards can easily come down when you start treating things differently.

    As I pointed out months ago if you can take away a gun from a person you can take away the ability for a women to choose to have an abortion or not. Or, as in the use of the commerce clause if a woman even can select her partner or the govt can do it for her.

  16. I don’t disagree with the ruling. May I be honest? I am neutral on the ruling. Too bad people don’t get as hung up on a patchwork of laws over immigration and reproductive rights.

    It probably has to do with the fact that men don’t get pregnant. There are all sorts of freedoms.

  17. marinm

    My MBA friend of mine sent me this to show a more libertarian perspective.

    ***********************************************
    Citizenship Should Remain a Birthright
    The latest bad idea about immigration from Arizona

    Steve Chapman | June 28, 2010

    In 1848, the discovery of gold brought hordes of prospectors to
    California. In 1889, millions of acres of free land set off a rush of
    settlers into Oklahoma. Today, we are told, the chance to get U.S.
    citizenship for their unborn children is rapidly filling the country
    with illegal immigrants.

    Critics see this as a malignant phenomenon that ought to be stopped.
    So Arizona State Sen. Russell Pearce, author of the new law directing
    police to check the immigration status of people they suspect of being
    here illegally, has another idea: denying citizenship privileges to
    anyone born in his state to undocumented parents.

    He plans to offer legislation refusing a birth certificate to any
    child unless a parent can prove legal residence, a clever attempt to
    nullify birthright citizenship. He says the change would eliminate
    “the greatest inducement for breaking our laws,” since having an
    “anchor baby” yields all sorts of benefits.

    A Rasmussen poll found a plurality of Americans favor repealing
    birthright citizenship. Kentucky Republican Senate nominee Rand Paul
    has endorsed legislation to that end, which has attracted 91 sponsors
    in the U.S. House of Representatives. Groups like the Federation for
    American Immigration Reform are all for it.

    But the idea fails on a couple of grounds. The first is
    constitutional. The policy originates with the Fourteenth Amendment,
    ratified after the Civil War, which says, “All persons born or
    naturalized in the United States, and subject to the jurisdiction
    thereof, are citizens of the United States.”

    Pearce and his allies say illegal immigrants can be excluded because
    they are not subject to the jurisdiction of the United States. But
    that provision was included only to exempt children born to foreign
    diplomats.

    The Supreme Court has left little room for argument. In 1898, it ruled
    that birth on American soil is “declared by the Constitution to
    constitute a sufficient and complete right to citizenship.”

    In 1982, it concluded that illegal immigrants are indeed “within the
    jurisdiction” of the state where they are present. To deny a U.S.-born
    child a birth certificate would almost certainly violate the right to
    the equal protection of the laws.

    It would be bad for common-sense reasons as well. To start with, it
    would call into question the status of every new baby.
    A report by the Immigration Policy Center pointed out that “all
    American parents would, going forward, have to prove the citizenship
    of their children through a cumbersome bureaucratic process.”

    This obligation is not something “we” are going to impose on “them.”
    It would be a burden on all new parents, including those whose
    ancestors debarked at Plymouth Rock.

    Supporters of the change regard birthright citizenship as an
    irresistible magnet for foreigners to sneak in. But the effect is
    vastly exaggerated.

    One study cited in Peter Brimelow’s 1996 anti-immigration screed,
    Alien Nation, found that 15 percent of new Hispanic mothers whose
    babies were born in southern California hospitals said they came over
    the border to give birth, with 25 percent of that group saying they
    did so to gain citizenship for the child.

    But this evidence actually contradicts the claim. It means that 96
    percent of these women were not lured by the desire to have an “anchor
    baby.”

    That makes perfect sense. The value of a citizen child is too remote
    to compete with the other attractions that draw people to come
    illegally—such as jobs and opportunity unavailable in their native
    countries.

    True, an undocumented adult can be sponsored for a resident visa by a
    citizen child—but not till the kid reaches age 21. To imagine that
    Mexicans are risking their lives crossing the border in 2010 to gain
    legal status in 2031 assumes they put an excessive weight on the
    distant future.

    Nor are the other alleged freebies very enticing. Most of the few that
    are available to undocumented foreigners, such as emergency room care
    and public education for children, don’t require them to have a U.S.
    citizen child. Illegal immigrant parents are ineligible for welfare,
    Medicaid, food stamps, and the like. They can be deported.

    Barring citizenship to their newborn babies wouldn’t make these
    families pack up and go home. It would just put the kids into a legal
    jeopardy that impedes their assimilation into American society—without
    appreciably diminishing the number of people going over, under, around
    or through the border fence.

    Punishing innocents without accomplishing anything useful? The
    opponents of birthright citizenship need an anchor in reality.

  18. Thanks for that post, marin. I especially agree with ‘put an excessive weight on the distant future’ remark.

  19. marinm

    The example I used with my representative of the BOCS is how do I prove that my child (think newborn) is an American? The idea of me/it carrying a birth certificate or other ID while in the confines of PWC is beyond silly but the original legislation would allow (or even require it).

    Now, I’m OK with the idea of a check being made at the ADC. I think that’s legal and doesn’t deprive anyone of any rights. But, I just can’t make sense of a law that mandates everyone be required to carry an ID and then provide it to a LEO upon demand. Flies in the face of American liberty.

  20. I don’t disgree, Marin. And it poses more of a burden on citizens and legal residents than non-legal residents and visitors.

  21. marinm

    Like gun laws and law abiding citizens vs. criminals. 🙂

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