The citizenship clause of the 14th amendment to the Constitution states:
“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.”
This amendment was adopted on July 9, 1868. The amendment is nearly 150 years old. However, when I turn on my TV it seems that every GOP candidate is calling “birthright citizenship” into question.
The only way I know to “undo” an amendment is to repeal it. That process is lengthy and requires two-thirds approval of both houses of Congress or by a constitutional convention called for by two-thirds of the State legislatures. That’s not likely to happen.
What are these politicians thinking? The Latino vote is about 11% of the electorate. That’s a pretty big chunk. Using words like “illegals” and “anchor babies” does nothing but demean a certain portion of the population. The use of those terms certainly isn’t going to bring in any votes.
Deporting everyone who is undocumented might be a good election slogan but it is impossible. What would these politicians do? Use the military to round up 11` million people? There would be caravans of thousands of buses. The “Trail of Tears” would look like a Sunday school picnic.”
The GOP candidates needs to shut up about immigration and tend to matters that they can actually accomplish. Right now their rhetoric is simply bullshit and bluster.
I know what they are thinking – they are thinking, I can tap into this anger and frustration (at the dysfunction of Congress) – and win votes. In the long run nothing will be done on this issue, i.e., I do not see any Constitutional changes coming in the near future.
We do need a Constitutional change – and that is to change the make up of Congress.
The damage the party is doing to itself is phenomenal. What do they possibly hope to gain?
@Pat.Herve
No Constitutional change required, a simple bar to lawyers running for office would suffice.
MoM has returned! Welcome back. Where has your snarky self been?
@Moon-howler
Busy, busy, busy, but I haven’t forgotten that you still owe me a beverage or two.
I thought Elena took care of my “debts?”
The 14th Amendment is the reason each and every one of us is an American citizen. Abolishing it would effectively change the definition of an American. That’s not something to take lightly.
Also kudos to Bush and Christie for rejecting that absurd proposition.
@Moon-howler
I don’t accept payment by proxy, it limits my opportunity for snarky interactions with those having differing political views.
[innocent look] I doubt seriously if Elena and I have differing political views. She could have filled in for me, not that I wouldn’t just love to have a single malt with you.
As many people have pointed out, there are no rights that are unlimited. There is no reason that the 14th should not be limited as well. Congress should pass a law that adds legal entry and residence in the US as conditions for being considered “subject to the jurisdiction thereof” vis a vis the 14th Amendment and thus eligible for birthright citizenship.
Such a law would make it far less attractive for people to enter/remain in the US illegally.
If people aren’t subject to the jurisdiction thereof, that would mean they don’t have to obey our laws. Now that wouldn’t be a good thing either. Some diplomats aren’t subject to the jurisdiction thereof and their children, if born here, aren’t US citizens.
Maybe there could be a caveat added.
Mr. Trump’s immigrant-bashing rhetoric breeds violence
DONALD TRUMP’S rapidly expanding catalogue of bombast is already a weighty tome, and it’s a fool’s errand to take each of his utterances seriously. Still, his loathsome comment on Wednesday, in which he excused violence against a Hispanic man in Boston as “passionate” acts of “people who are following me,” taps into a dark vein in American history and merits special attention.
In the Boston incident, two brothers were charged with using a metal pole to assault a 58-year-old Hispanic man. The man, who was homeless, was left with a broken nose and other injuries to his face, arms and chest. “Donald Trump was right, all these illegals need to be deported,” one of the brothers, Scott Leader, told police, the Boston Globe reported.
When Mr. Trump was told of the incident, in which the brothers also are alleged to have urinated on the man before beating him, he said the following: “It would be a shame. . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.”
Officials in Massachusetts had a different reaction when the Globe asked them about the incident. “A disgrace,” said Police Commissioner William B. Evans. “Sickening,” said Daniel F. Conley, Boston’s top prosecutor.
Mr. Trump, under a barrage of criticism, took more than a day to retreat from his original statement, finally tweeting that he “would never condone violence” and “we must treat each other with respect.” This from the man who slandered undocumented immigrants as “rapists” and suggested Fox News journalist Megyn Kelly had asked him tough questions because she was menstruating.
The truth is that Mr. Trump deliberately whips up popular rage for political advantage. By spewing hatred on the stump, Mr. Trump encourages it in the bleachers and on the streets, then sanctions it when it occurs. Remember: He also minimized the death threats Ms. Kelly received after his dustup with her, telling the Hollywood Reporter, “I’m sure they don’t mean that,” then pivoting to stress his “respect for the people that like me.”
Mr. Trump is not the first politician to inspire and then explain away crimes of hatred; he’s just the most recent one. Recall the Southern politicians of the past century who were apologists for lynchings. Rep. Charles E. Bennett of Florida, who said he condemned such violence, nonetheless explained that lynchings occurred because Southerners were aggrieved at the meddling of Congress. Others, more coarsely, cited the rape of white women by black men as having naturally incited a lynch mob.
Mr. Trump’s immigrant-bashing rhetoric is intended to galvanize political anger and win Republican primaries, not incite a lynch mob. The trouble is that his contempt-filled hyperbole appeals not to rational discourse but to passions — passions that can and do get out of hand.
https://www.washingtonpost.com/opinions/mr-trumps-politics-of-incitement/2015/08/21/c33d0f2e-483d-11e5-8ab4-c73967a143d3_story.html?hpid=z3
Trump says beating up and urinating on people is just being passionate. What a bunch of animals
@ Kelly – essentially your proposal amends the XIVth. That has to be done through the normal constitutional process. I wouldn’t think it advisable to encourage the Congress to do a lot of embroidery on the basic document through interpretive legislation. You might be thrilled when you’re goring someone else’s ox, but not so keen on your ox being gored.
Those of us who are constitutional conservatives often marvel at how few friends the Constitution really has when people get lathered up politically (which they seem increasingly vulnerable to these days). Even folks who will tell you day in and day out that they are “conservatives” and who demand literal interpretations of the Constitution are ready at the first raindrop to chuck the whole thing to the curb. I expect that of “liberals”, but there’s no shortage of it on the “right” side of the spectrum either. It shows how shallow and superficial these labels can be.
If I could change any amendment, I would change the 26th. I would reconstruct that bad boy so that 18 year old got to vote but that was it as far as adulthood goes. Their parents would still get their grades in both high school and college. The amendment would spell out that adulthood begins at 21 and not one minute sooner.
@Kelly_3406
We already have many laws on the books that prevent one from working in the US unless they are here legally – and how is that working out for us?
One needs to want to do something about immigration before it will get done.
As long as we are redefining constitutional amendments, why not redefine the 2nd amendment as well?
@Scout
Oh, please. You are constantly harping about the need to regulate firearms and limit concealed carry to maintain a “civilized society”. It is well-established constitutionally that the 2nd Amendment can be restricted within limits by municipalities, the states, and Congress. There is nothing in the Constitution that makes the 14th so special as to be off limits to reasonable restrictions by Congress.
I would submit that anyone whose presence in the country is not documented is not fully under the jurisdiction of the United States. Many undocumented people have children in the US, which effectively blocks the entire family from being deported. Birthright citizenship is also the reason that many illegal immigrants decide to remain here permanently. Removing birthright citizenship would go a long way toward fixing both of those problems.
I have to argue with you on this one, Kelly. I think many kids are born in this country because their young parents come here to work and make a living better than they can make in the old country. They have kids because they are young. Many of them also have abortions because they aren’t ready for kids. Gasp. Some even use contraception. Yes, some people on travel visas come here to birth babies so that baby is a US citizen. Those people aren’t usually from south of the border, which is really what we are talking about.
Also having a child who is a citizen does not block deportation. Neither does being married to an American. I have friends who have found this to be very true. There are no get out of jail free cards for those with citizen children.
Anyone in the country SHOULD be under our jurisdiction.
Correction: removing birthright citizenship for those who are not in country legally would go a long way toward fixing both of the problems listed in #17.
That regulatory power emanates from the clear words of the Second Amendment, Kelly, and the well-recognized inherent police powers of the individual states. There are no such limitations in the XIVth. What you are talking about is using legislation to amend the Constitution. Can’t be done in a Rule of Law environment. Forget about it.
If I am physically present in Mongolia, believe me, I am “fully under the jurisdiction of Mongolia.” (The only exception I can think of to that general statement would be if I were a diplomat entitled to immunity). Physical presence does subject one fully to the jurisdiction of the United States (or any other country, except for a few narrow exceptions, none of which would apply to a newborn baby. For that matter, even an illegal immigrant in the United States is subject to the jurisdiction of the United States. That’s why we can arrest an illegal entrant for crimes committed here.
Perhaps there are reasons to change our 150 year policy on birthright citizenship. But don’t kid yourself into thinking that Congress can just fiddle around with the meaning of the Constitution through legislation. There is a process, deliberately designed by the Founders to be arduous, for changing the Constitution. Put your energies and arguments there, if you think birthright citizenship is an idea whose time has come and gone. But my guess is that no such amendment would be passed in this country, even during feeding frenzy season brought on by yahoo politicians trying to get air time on cable news.
BTW, Kelly – Brian Schoeneman has an excellent post up at Bearing Drift that has spawned a lot of very good discussion (and, as one would expect, a few outright looney comments, including a couple of overtly racist statements) in the following thread. Chew on that for 30 minutes and you’ll be much better informed. Then come back and we can talk intelligently about the issue.
@Scout
The problem is that “under the jurisdiction of” was explained by the author of the amendment to correlate to “fealty to.”
Those in the US that still had fealty to other nations, ie, ambassadors, tourists, etc…which includes illegal aliens……
would fall into that category.
Then there are those rascally former slaves and Indians…..just saying.
I am already well aware of the blog on birthright citizenship at Bearing Drift. Schoeneman makes a strong argument for unfettered birthright citizenship, but it is unpersuasive. As pointed out in the blog, illegal immigration was not defined in 1868. So the definition of jurisdiction based only on the authority of courts to try cases is no longer adequate in my view.
Birthright citizenship remains important for creating new citizens in the U.S. But the destabilizing effects of mass migration, the need to screen for diseases that could result in a mass pandemic, and the lack of allegiance to the U.S. and its customs of many undocumented immigrants call into question the wisdom of extending birthright citizenship to people who are in the country illegally.
How can we discuss screening for diseases when any one can get on a plane and contaminate an entire plane full of people? Are legal immigrants even screened? How about those traveling on a tourist visa? I think the disease argument went out with high button shoes.
The section of US law that defines jurisdiction is § 515.329. It was last modified in 2003, so Congress clearly has the power to modify the definition of jurisdiction without a constitutional amendment.
It’s hard for me to imagine any person more completely subject to the jurisdiction of a country than a baby just born there.
As for evading the Constitution through legislation, good luck with that. People like Schoeneman and I are trying to save you guys a lot of time, embarrassment and false hope. It won’t work, and it has never worked. For good reason. You constitutional revisionists make us conservatives very uneasy, I must say.
Illegal Entry – Misdemeanor.
Tax Evasion – Felony.
Who should be charged – the guy coming here for work, or the employer breaking a number of laws to hire and employ him?
@Pat.Herve
Both…. if you hire illegal aliens, you should be charged.
Trump should be asked if he demands that all of his businesses use E-Verify, etc…and if not…why not? He should be asked directly if he ensures that none of his businesses hire illegal aliens.
If he isn’t, then he needs to shut up.
Cargo, are you going to have a conflict of interest when you have to teach children who are illegal aliens or citizen children whose parents are illegal aliens?
If you had someone come plant 10 azealas for you, how do you know if they are here legally or not. I wouldn’t ask. Would you?
How was your vacation, as an aside?
As a LTE in today’s W.Post points out, changing birthright citizenship would also require changes to Article 1, section 9, which deals with children not being responsible for the parents sins. It also prohibits ex post facto laws, meaning that even if by some miracle the 14th Amendment AND Article 1 were changed, existing “anchor babies” would stay.
Not to mention that the change would fundamentally alter the whole concept of America as an open classless society. We would create a “worker” class without the rights enjoyed by citizens. We’d need to pull down that statue in NYC…or add “except for anchor babies” to the sign on Lady Liberty.
Good post, Middleman. Where have you been lately?
You lost any credibility as a conservative when you claimed Obamacare was not a big deal and advocated for stricter gun control to maintain a “civilized society.”
Is there a way A conservative is supposed to think? It seems like there is too much of that going around for both liberals and conservatives…like there’s a party line and don’t dare step over it.
I would prefer to think for myself. On some things I am conservative, others I am moderate, and at times I am glow in the dark raging liberal.
Your memory may be better than mine, but I doubt that I said that Obamacare “wasn’t a big deal.” Politically, it has clearly been a very big deal. I have said, however, that it did very little to address the problems of American health care and that it was really just a perpetuation of the pre-existing system in which employers are saddled with responsibility for large swathes of the American health care system and insurers are given way too much power of health services. I view the anti-Obamacare hysteria in the same way I view other political marketing ploys – a gimmick to drive voter turnout. If I heard my side of the aisle actually advancing legislation that lifted the health care burden off businesses, and that undermined the cost-plus insurance mechanisms that have come to define the system, I’d be much more pleased with where we are.
As for guns, I don’t consider it a mark of a civilized society for people to walk around hiding deadly weapons on their persons as they go about ordinary commerce and activities. I don’t think that’s necessarily a “conservative” or “liberal” viewpoint, but if I had to pick one or the other, I’d say it’s far more “conservative” than anything else.
@middleman
The Washington Post LTE is incorrect, because ending birthright citizenship for illegal aliens would simply be a change in eligibility, not a criminal punishment. The children of diplomats and certain Indian tribes are not deprived of birthright citizenship due to the sins of their parents — it is a simple matter of ELIGIBILITY. Their parents are not under the jurisdiction of the U.S., and so birthright citizenship is not allowed. When people cross illegally into the US, their presence is undocumented. Thus, no one can rationally argue that illegal aliens are fully under the jurisdiction of the US (despite the current legal definition for jurisdiction).
One caveat: I would not apply this to illegal aliens who are already in the US, but rather just to those crossing the border illegally or overstaying a visa henceforth.
To understand my point, consider the First Amendment, which states that Congress shall make no law restricting free speech. Over time, we as a society have supported free-speech restrictions for specific cases. For example, falsely yelling ‘fire’ in a crowded theater is not protected. Child pornography is not protected speech. No constitutional amendments were required to add these restrictions.
As discussed above, we note that there is a large group of people (i.e. illegal aliens) that does not fall completely under the jurisdiction of the U.S. Because jurisdiction is incomplete, this group should not be eligible for birthright citizenship.
Everyone within the boundaries of the United States is “under the jurisdiction.” If this weren’t the case, then people could just do whatever they wanted to do. Laws don’t travel with a person. Anyone entering the United States is under its jurisdiction. The only exception would be some diplomats.
Sure illegals can be arrested, but only if they can be found. Law enforcement cannot go to an illegal alien’s home of record because there is no home of record.
Suppose there is intelligence of a terrorist of a certain nationality entering the US. Law enforcement cannot track the movement of illegal aliens coming into the US because no one knows where they came in, how many came in, where they went, and how long they have been in country.
Suppose we want to extend the individual mandate of Obamacare to illegal aliens to cover the high emergency room costs. There would be no enforcement mechanism because there is no record of how many are in the country, where they live, how long they have been here, and their income level.
Sure– there are indeed aspects of jurisdiction that apply. But these examples show that the US does not have FULL jurisdiction over illegal aliens. Congress could easily amend the law that states what jurisdiction is to specify legal entry and residence in the US as conditions to be fully under the jurisdiction of the US for the purposes of birthright citizenship.
Kelly – You’re must making things up now. An illegal alien standing in the town square in Topeka is as much subject to the jurisdiction of the United States as the Yankee Doodle Dandy standing next to him. There are treaties/agreements with various countries about consular notification, diplomatic personnel and armed forces present in the US for training etc. But those exceptions merely define the rule. Jurisdiction over a person is very much a physical presence thing. I’ve practiced law for a long time and never come across your concept of “incomplete jurisdiction”. When it comes to persons, either there’s jurisdiction or there isn’t.
@Kelly_3406 Kelly, I’m neither a lawyer or a constitutional scholar, so I won’t waste time arguing this point with you. It’s really a moot point anyway since it’s unlikely for these changes to be made. And if they were, I’d let the lawyers and jurists fight it out.
The larger point is that it’s a slippery slope to start deciding who can be citizens and who can’t. Be careful what you wish for- the people deciding eligibility in the future may not be who YOU want them to be!
7@Moon-howler
It’s been a busy summer for us, Moon. We went to Sedona and then Montreal on vacation and I bought an old motorcycle I’m fixing up. I’ve been checking in from time to time, but not a lot of time to write. And I WAS sick to death of this campaign already, but with Trump (and now maybe Biden) it’s “gettin interestin” again.
I love Sedona. I have been several times. I have never been to Montreal. How long were you in Sedona and at what neat place did you stay?
The republicans are free to repeal the 14th amendment anytime they want. They have majorities in both houses of congress. Makes no difference who the president is. The president has no say in repealing amendments. No one is stopping them from amending the constitution in any way they want. They don’t have the guts
@Scout
You have never come across this, because I am pointing out the inconsistency between the legal definition of jurisdiction and its application in practice for illegal aliens. If a person successfully crosses the border illegally, then he can remain undocumented and unreachable by any government agency if they so choose. This logically implies less-than-complete jurisdiction (even though there is no legal definition for incomplete jurisdiction).
The fact that you are a lawyer explains a lot. What type of law do you practice?
Most people don’t disappear off the face of the earth. They live in towns, cities, and small communities and have to go by the rules and laws of said communities if they don’t want to stick out like a sore thumb.
@middleman
Issues of freedom and citizenship in the Constitution are too important to be left to the lawyers and scholars. The Constitution was written very clearly so that it could be understood and debated by educated citizens.
What’s the inconsistency, Kelly? I’mnot sure how one can even talk about jurisdiction if it isn’t a “legal definition” or legal concept. Our illegal immigrant in Topeka jaywalks. He can be cited. The YDD (Yankee Doodle Dandy) jaywalks, he can be cited. They are both physically present. Neither is less “subject to the jurisdiction” of the place where they are than the other.
I hope the fact that I am a lawyer explains why I know the law. I have been practicing law for a bloody long time. It scares me. 40+ years. That’s roughly 80,000 billable hours, give or take a few tenths of an hour here and there. (although I was in the Government for about 10 of those years and we didn’t keep time there, so I guess I need to cut that down to more like 50 or 60K). That’s a lot of time. I would much rather be riding my bicycle.
@Kelly_3406
Debate away, Kelly, but it’s Congress that passes the laws and lawyers and judges who decide if the laws are constitutional, which is at the heart of what you’re discussing. Not much point in a couple a laypersons debating this, IMHO. You may be a constitutional scholar, but alas I am not, and I’ll leave it to them that are.
@Moon-howler
We stayed at the Best Western (89A and Airport Road). We absolutely LOVED Sedona! The view from our balcony was amazing! The hiking, the sunsets, the food, the music, the people- all unbelievable. Vacation of a lifetime. Gotta go back!!
re MM at 1518: I kinduv think Kelly is a little more right than you on this (how’s that for a big surprise for all of us). The Constitution was a work of genius. It was (in its original form, and, even after a lot of amendments still somewhat) a relatively concise and straightforward piece of work. Its general drift is not beyond the ken of the citizenry. The Founders probably would have agreed that there was a problem if only a priesthood of scholars could effectively debate its provisions. Having said that, there is a lot of history behind the document and it helps to be aware of it.
@Scout Well, then I guess we can rid ourselves of constitutional scholars and judges and lawyers and the Supreme Court and just have regular folks like Kelly and me (actually, I shouldn’t speak for Kelly, for all I know, Kelly could be a constitutional scholar AND a lawyer, in which case I declare Kelly absolutely right!) decide constitutionality and which laws are legal under our constitution. This would continue the anti expert trend currently popular in climate and vaccine- related areas, so at least we’d be consistent.
@Scout
In today’s modern society, I think jurisdiction has to include personal identity together with legal residence. Sure the jaywalking illegal alien can be arrested. But the more relevant example is the illegal alien caught on camera shooting somebody. Because there is no record of him, he can melt into a city never to be found or identified. So de facto jurisdiction does not really exist for this case.
Another example might be someone crossing the border who carries Ebola. There is no record of the person coming over, which could lead to a mass outbreak. Again, jurisdiction in theory but not in practice ……
Jurisdiction should be more than just the ability to arrest and try someone. It should also include positive identification (passport), point of entry, length of stay, etc. Otherwise jurisdiction is just academic.
Finishing that last thought …..
Otherwise jurisdiction is just academic in ways that could be critical for the security and well being of our citizenry. The current notion of jurisdiction as defined legally seems inadequate for modern society.
@Scout
You bloviate as only a lawyer can, but inductive reasoning clearly is not your strong suit.
Your complaint, Kelly, is not really about jurisdiction. Your confusing yourself. Jurisdictional concepts are clear. Remember, the reason we’re having this discussion is that we are talking about newborns clearly within the jurisdictional reach of the United States. What you are identifying is a problem of governance and administration where we allow a population (we don’t have a proportionally “large” population of illegals, but we do have something in the neighborhood of 3 to 4 per cent illegals) of people who are not well-recorded and who lack incentive to be recorded living within our midst. The answer is to simplify entry, have better visa tracking, time-limited work permits for certain kinds of labor (e.g., a brain surgeon might have a permit for 10 years with an option to convert to full citizenship, and a seasonal agricultural worker something less, but still with options to convert to citizenship under some set of rational conditions).
The reason we have illegals is because our entry and tracking systems are inadequate. Fix those, and you won’t have to get distracted by relatively insignificant issues like birthright citizenship or the even more vulgar demagoguery that low-skill pols have found so attractive because it preys on more ill-informed instincts of a certain slice of the primary voting cohort.
I can assure you that personal “jurisdiction” is a pretty hard (in the sense of clear and understandable) concept. The hazy cases are very much the small minority.
PS: Interesting, Kelly, that you felt compelled to circle back after two more or less reasonable comments, for the express purpose of lowering the level to the personal and derogatory in #54. What was the point of that? Does that make your position more credible? I would think not outside of some circles that decent people wouldn’t want to frequent.
In English and American law, we tend to reason inductively from individual cases to general rules. I may not be the champeen in that arena, but I can hold my own. That’s how I make my living. Moreover, I don’t “bloviate”. I think it a sign of bad breeding, despite its increasing commonness in modern political discourse.
@Scout
The point of that was to respond to your negative comment in #50. I prefer to keep the discussion at a very high level, but will respond in kind when necessary. You may be very capable of inductive reasoning in your day job, but you have not shown much of that here. I am asking you to think “outside the box” and instead you keep throwing in your little zingers that cumulatively become very annoying.
I understand that the traditional definition is different than what I am talking about. A better tracking system will not fix the issue of crossing the border. Even if we fix the immigration system, it will not be a panacea for illegal crossings, because presumably there will (should) still be people that want to come in but are denied legal entry. There should be certain people (e.g. convicted felons) that are denied entry. This means that the issue I am pointing out will remain.
Even though we are referring to a minority of people, it only takes one terrorist to wreak havoc or one undetected contagious immigrant to cause a health crisis. As far as I know, there is no overwhelming push to require positive ID and tracking as part of the definition of jurisdiction for foreign nationals in the US.
When the 14th was ratified, remember that there was no concept of illegal immigration. So it certainly would not be unreasonable to update the concept of jurisdiction to account for this change. When foreign nationals establish legal presence in the US, then full jurisdiction would be established and any newborns would be American citizens.
When the 2nd amendment was ratified, there was no concept of personal weapons that could do anything other than fire a single bullet. It certainly would not be unreasonable to update the concept of “bearing arms” and “well regulated militias” to impose some limitations on who gets to bear arms if there are problems.
I know that isn’t what you and Scout are discussing but your last paragraph reached out and grabbed me.
I support most gun rights. Operative word being most. I just think there are some weapons the average Joe probably shouldn’t have and also there are some average Joes that shouldn’t have weapons of any sort because of the potential to do irreparable damage to life and property.
My “negative” comment in #50 was that I agreed with you, Kelly. I took your side against Middleman, a very sensible and articulate fellow with whom I almost always agree substantially, if not completely. If you make a special trip back to personally denigrate someone who agrees with you on a point, I suspect you have a pretty hard road to hoe in life. How do you deal with people who have a contrary view?
I think I’ll go back to agreeing with Middleman. He doesn’t feel it necessary to get nasty on a personal level when we see things the same way (or even on the rare occasion where we see things differently, like comment #50).