Yoo, rivkin: 14th amendment does grant birthright citizenship

Discussion in 'News / Current Events' started by Crabtownboy, Aug 23, 2015.

  1. Crabtownboy

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    David Rivkin, who served as an attorney in the administration of Presidents Reagan and George H.W. Bush and John Yoo, a Law Professor at UC Berkeley who clerked for Supreme Court Justice Clarence Thomas and served deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice during President George W. Bush’s presidency argued the 14th Amendment does grant birthright citizenship on Thursday’s “O’Reilly Factor” on the Fox News Channel.

    Yoo said that those who argue the 14th Amendment does not grant birthright citizenship are “flat wrong,” and “the text of the 14th Amendment is clear. It says, ‘All persons born or naturalized in the United States, [and] subject to the jurisdiction thereof, are citizens’. This is not just the 14th Amendment. This has been the rule in American history since the founding of the republic. The 14th Amendment was really just reversing one of the great stains of constitutional law, which was Dred Scott, where Roger Taney, in one of the cases that precipitated the Civil War, said that Congress could pick and choose who to make citizens or not, even though they were born here, and notoriously, the Supreme Court said free blacks could not be citizens.

    Yoo added that the phrase “subject to the jurisdiction thereof” “also was just codifying common law practice from the beginning of the country, which meant to exclude the children of diplomats, the children of enemy soldiers on our territory, and then the biggest category then would have been Indian tribes, because Indian tribes were on our territory. But they weren’t subject to the jurisdiction of the United States.

    Rivkin agreed, adding “let me point out that this is one of the provisions of the Constitution, who’s a original public meaning, which matters for those of us who are conservatives, is clear. Let me just say, during their debate over the measure that became the 14th Amendment, the House came in with a language that did not have this language. In the Senate, it was introduced by Senator Jacob Howard. Both proponents and opponents of this language understood what it meant. It was interesting, because the political hot potato at the time was what to do with the Chinese laborers who were building railroads. So, the opponents of this language were pointing out that if it passed, children born to the Chinese nationals in this country would become US citizens.”

    http://www.breitbart.com/video/2015...-amendment-does-grant-birthright-citizenship/
     
  2. wpe3bql

    wpe3bql
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    CTB,

    Who's is a contraction for the expression "who is."

    Whose is a possessive indicative pronoun.

    Since you've identified yourself as somewhat of an intellectual, I find interesting that you failed to recognize that in your OP.
     
  3. Crabtownboy

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    WPE, I did not write the piece. I copied and pasted it and gave credit at the end. Your argument is with the person who wrote the article.

    Oh, and I know enough to know I am not an intellectual. When I was 18 I knew everything. When I was 19 I realized, in a Physical Science clsss, there was something I did not know. It has been downhill since.
     
  4. wpe3bql

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    Well then maybe you just might want to be a bit more judicious in what you cut and paste.

    That's one of the reasons why I do very little cutting and pasting in most of my own posts.

    It does take a bit more time to do so, but I'd rather stand or fall on my own words rather than depending upon other people to say what I want to say.
     
  5. targus

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    The left has a bad habit of hooking on to some technicality and then pushing it as hard and far as they can.

    The term "anchor babies" came into existence because the left uses them as an excuse for their noncitizen parents, siblings, aunts and uncles, grandparents, ect. to get to stay in the country too.

    Of course all of those people deserve free healthcare, free housing, food stamps, whatever as a "basic human right".

    They rest of us can just work to pay for it all.
     
    #5 targus, Aug 24, 2015
    Last edited by a moderator: Aug 24, 2015
  6. church mouse guy

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    Exactly right!

    Let's take the example of El Chapo, "Shorty," the Mexican kingpin drug lord who recently walked out of prison in Mexico. He married the daughter of another drug lord, a beautiful woman and she had children by him in California. El Chapo has a California driver's license under the name of "Max Aragon." Now since his children are American citizens, we have to give citizenship to this international criminal?

    And it is not just Latinos who are using us as a maternity ward for citizenship--it is the international rich who wish to subscribe to US citizenship in case things go down the drain in whatever country they are from.

    The 14th Amendment was written to help blacks in their struggle against the Democrats who wanted to deny them as people under Dred Scott and then deny them as citizens after the abolition of slavery.

    It was not written so someone from Switzerland, for example, could gain dual citizenship.
     
  7. Squire Robertsson

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    No, in the case you cite. El Chapo is not eligible to get a green card much less US citizenship.
     
  8. TCassidy

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    The 14th amendment guarantees full citizenship to anyone born on US soil (Jus Soli) regardless of the status of their parents.

    In the Supreme Court case of the US v Ark. SCOTUS held that the citizenship paragraph of the Fourteenth Amendment included everyone born in the U.S.—even the U.S.-born children of foreigners—and could not be limited in its effect by an act of Congress. (The exception is foreign diplomats living or working in an extra-territorial enclave at the time of the child's birth or children born to an army of occupation.)

    In fact, the ruling, 169 U.S. 649 (1898), specifically dealt with the clause a very few and badly uninformed people are proposing would limit the citizenship of children born in the US whose parents are here illegally. The SCOTUS held that "subject to the jurisdiction thereof" simply meant they were not not subject to any foreign power.

    According to Patrick Glen, (Glen, Patrick J. (Fall 2007). "Wong Kim Ark and Sentencia que Declara Constitucional la Ley General de Migración 285-04 in Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, and Political Morality". University of Miami Inter-American Law Review 39 (1): 67–109) "The parameters of the jus soli (right of the soil) principle, as stated by the court in Wong Kim Ark, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts."

    It is settled Constitutional and Case Law that anyone born on US soil is a full, natural born US citizen, and the legal doctrine of Stare Decisis established the precedent all subsequent cases must follow.
     
  9. Revmitchell

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    It is today routinely believed that under the Citi*zenship Clause of the Fourteenth Amendment, mere birth on U.S. soil is sufficient to obtain U.S. citizen*ship. However strong this commonly believed inter*pretation might appear, it is incompatible not only with the text of the Citizenship Clause (particularly as informed by the debate surrounding its adoption), but also with the political theory of the American Founding.

    It is time for Congress to reassert its plenary authority and make clear, by resolution, its view that the "subject to the jurisdiction" phrase of the Citizen*ship Clause has meaning of fundamental importance to the naturalization policy of the nation.
    The Original Understanding of the Citizenship Clause

    The Citizenship Clause of the Fourteenth Amend*ment provides that "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."[1] As manifest by the con*junctive "and," the clause mandates citizenship to those who meet both of the constitutional prerequi*sites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.
    The widely held, though erroneous, view today is that any person entering the territory of the United States-even for a short visit; even illegally-is considered to have subjected himself to the juris*diction of the United States, which is to say, sub*jected himself to the laws of the United States. Surely one who is actually born in the United States is therefore "subject to the jurisdiction" of the United States and entitled to full citizenship as a result, or so the common reasoning goes.
    Textually, such an interpretation is manifestly erroneous, for it renders the entire "subject to the jurisdiction" clause redundant. Anyone who is "born" in the United States is, under this interpre*tation, necessarily "subject to the jurisdiction" of the United States. Yet it is a well-established doc*trine of legal interpretation that legal texts, includ*ing the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results.[2]
    The "subject to the jurisdiction" provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."[3] As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child's par*ents, remained a citizen or subject of the parents' home country was not entitled to claim the birth*right citizenship provided by the 1866 Act.


    http://www.heritage.org/research/re...-rethinking-birthright-citizenship?ac=1#_ftn9
     
  10. Revmitchell

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    III. JUDICIAL INTERPRETATIONS OF CITIZENSHIP


    Our constitutional law, however, comes not from the
    Constitution, but from the Supreme Court. As Charles Evans
    Hughes, later Chief Justice of the United States, once famously
    put it, “We are under a Constitution, but the Constitution is
    what the judges say it is.”45 The question, therefore, is less what
    the Constitution means than what the Supreme Court is likely to
    say it means. The answer to that question, as to all litigated
    constitutional questions, depends almost entirely on the policy
    preferences of the Justices making the decision. The Supreme
    Court has never ruled directly on the question of birthright
    citizenship for the children of resident illegal aliens, but it has
    spoken to similar issues.
    In 1873 in the Slaughter-House Cases,
    46 the first case to come
    before the Court involving the then newly enacted Fourteenth
    Amendment, the Court stated, in dicta, that “[t]he phrase,
    ‘subject to its jurisdiction’ was intended to exclude from
    [birthright citizenship] children of ministers, consuls, and
    42. Id. at 2895.
    43. Id.; SCHUCK & SMITH, supra note 11, at 81–82.
    44. Earlier, however, in response to a question, Senator Trumbull stated,
    inconsistently, that citizenship would be granted to the American-born children of
    Chinese and other legal resident aliens. Schuck and Smith point out that this statement
    was based on “the expectation that its actual effect would be trivial. On several occasions
    during the debates, Congress was assured that the number of children of alien parents
    who would qualify for birthright citizenship under the clause would be de minimis and
    thus of no real concern. This de minimis argument could not be credibly made with
    regard to the Indians, as several senators made clear.” SCHUCK & SMITH, supra note 11,
    at 77–79.
    45. JOSEPH F. MENEZ & JOHN R. VILE, SUMMARIES OF LEADING CASES ON THE
    CONSTITUTION 1 (Rowman & Littlefield Publishers, Inc. 2004).
    46. 83 U.S. 36 (1873).
    GRAGLIA[1].DOC1/11/2010 1:26:00 PM
    No. 1 Citizenship for Children of Illegal Aliens 9
    citizens or subjects of foreign States born within the United States.”47

    Much more important, in 1884 in Elk v. Wilkins,
    48 the Court
    adopted the view of Senators Trumbull and Howard that a child
    born to members of an Indian tribe did not have birthright
    citizenship. Such a child was born in the United States, but not
    born “subject to the jurisdiction thereof,” because that requires
    that the child be “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.”49

    It made no difference that the plaintiff “had severed his tribal
    relation to the Indian tribes, and had fully and completely
    surrendered himself to the jurisdiction of the United States,”50
    because it did not appear that “the United States accepted his
    surrender.”51 He could not change his status as an Indian by his
    “own will without the action or assent of the United States.”52
    “To be a citizen of the United States is a political privilege that
    no one, not born to, can assume without its consent in some
    form.”53 “[N]o one can become a citizen of a nation without its
    consent.”54 The decision seemed to establish that American
    citizenship is not an ascriptive (depending on place of birth),
    but is a consensual relation, requiring the consent of the United
    States as well as the individual. This would clearly settle the
    question of birthright citizenship for children of illegal aliens.
    There cannot be a more total or forceful denial of consent to a
    person’s citizenship than to make the source of that person’s
    presence in the nation illegal.

    http://www.trolp.org/main_pgs/issues/v14n1/Graglia.pdf
     
  11. church mouse guy

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    El Chapo probably is not eligible for a California drivers license but he has one under the name of "Max Aragon." I think that his wife has dual citizenship and his children are American, but I am not sure. If you ignore El Chapo as an underworld leader, he would be eligible, wouldn't he? At any rate, when you have lawless federal governments on both sides of the border, anything can happen, right?
     
  12. TCassidy

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    Uh, yeah. Quote an opinion piece from the radical right wing Texas Review of Law and Politics.

    Unfortunately the Supreme Court disagreed. Case law is settled and it has been settled for 117 years.

    "All persons born" on US soil (Jus Soli) are US citizens by right of birth on US soil.
     
  13. church mouse guy

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    Yet the intent of the law was to help blacks and American Indians and the author said that it did not deal with foreigners. Now, as you know, you have the wealthy from all over the world sending their pregnant wives here to give birth and gain an anchor into our society that would allow multiple generations to become Americans.

    Islam has a legal way to land an army of jihadists on our shores.
     
  14. wpe3bql

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    Most US history textbooks tell us that the three amendments to our Constitution that were ratified within a five-year period since Lee surrendered to Grant in 1865 are usually referred to as the "Reconstruction Amendments."

    The 13th Amendment which was ratified by December, 1985, officially abolished slavery.

    The 14th Amendment, which is the subject of this thread, was the only Amendment that, in July, 1868, that Congress had to declare it to be made part of our Constitution because both NC & SC outright rejected it, and both OH & NJ withdrew their approval of it.

    Apparently even as far back as some 140+ years ago both some southern and some northern states questioned the constitutionality
    of Section 1 of the 14th Amendment.

    The 2nd Section of the 14th Amendment excluded "Indians not taxed" as basically non-citizens for apportioning of Congressional seats, as well as limiting those states who seceded to form the Confederacy.

    The 3rd Section of the 14th Amendment prohibited any person from holding any elective office in both the Legislative or Executive Branches of either any state or federal government--but Congress could "remove such disability."

    The 4th Section of the 14th Amendment prohibited the US from paying any debts of the Confederacy. In its words, any payment by the US government of those of the Confederacy was to be considered as "illegal and void."

    I just noted this because there was a lot more to the 14th Amendment than merely determining who could be deemed a rightful US citizen.

    The 15th Amendment, which was ratified in February, 1870, forbade denying a person's right to vote "on account of race, color, or previous condition of servitude" [i.e., former slaves].

    This Amendment was often circumvented by some of the states passing "Jim Crow" laws which in many cases stated that if a "certain person" [namely a black man] wished to vote in an election, he had to either pay a relatively-high poll tax, or pass an extremely difficult written "citizenship test."

    Since the literacy rate among blacks was very low even as late as the middle of the 20th century in some places in the US, when that was combined with the poll tax, few blacks ever voted in certain areas of the US.

    It took the Voting Rights Act that was passed in the middle 1960's to legally abolish these restrictions in our nation.

    But, in recent elections, in some cities, the tide has now turned such that it's now organizations such as the Black Panthers that have taken to bullying prospective voters with armed attack rifles many urban voting precincts, with our current Justice Department turning a blind eye to these vigilante thugs.

    Such is progress during the Obama Administration.
     
  15. church mouse guy

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    So what are we going to do about the international rich who like to have babies in this country?
     
  16. Revmitchell

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    ...Let’s put aside everything we believe as conservatives for a moment and take the activist ruling of Wong Kim Ark [169 U.S. 649 (1898)] as impregnable constitutional law. As such, the 14th Amendment would compel Congress and the Executive agencies to grant citizenship to all children of legal immigrants. Although we all agree as a matter of policy that it is a good idea to grant children born to legal permanent residents citizenship, by accepting the 1898 court decision as settled law, thereby enshrining birthright citizenship into our Constitution, we’d have to swallow the following ridiculous notions:

    We’d be ignoring the intent of the drafters of this amendment who clearly had no intention to mandate birthright citizenship for all immigrants.

    We’d be adopting one-directional stare decisis of an activist court that overturned two previous court decisions: the 1873 Slaughterhouse Cases and Elk v. Wilkins (1884). In those cases, the Supreme Court made it clear that the original intent of the 14th Amendment was primarily to grant equal rights to freed black slaves and that the phrase “subject to the jurisdiction thereof” required that the petitioner for citizenship be “completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” These cases excluded children born to foreign diplomats and Native American Indians and were quite clear that the meaning of the 14th Amendment would not include all children of immigrants – most of whom would have been covered by less political jurisdiction than even those born on Indian reservations, which were partially under U.S. jurisdiction. [See more from Prof. John Eastman at NRO on defining jurisdiction]

    We’d be overturning the most logical meaning of the text of the Citizenship Clause, rendering the second phrase all but superfluous.

    We’d be ignoring the intent of the drafters of this amendment who clearly had no intention to mandate birthright citizenship for all immigrants [see more in the Eastman article]. While originalists like to focus on text, in this case the text fits in exactly with the intent of the drafters, as demonstrated by the Senate floor debate.

    We’d be adopting the revolutionary-era feudal system of English Common law rooted in the fact that men are subjects of the state by virtue of being born on the soil. This is antithetical to the consent-based notion of citizenship expressed by our Founders. Although many of our laws are built upon common law, this certainly was not one of them, and this segregation-era court was incorporating it into American law, ironically, at a time when England was abandoning feudalism. As Thomas Jefferson wrote precisely in a discussion on immigration in Notes on the State of Virginia [Query 8, 211], our Constitution is a composition of the “freest principles of the English constitution.”

    By adopting jus soli as a constitutional mandate (not just policy) for automatic citizenship based on soil, and not jus sanguinis – right of blood – all children born to American citizens abroad would not automatically be citizens, as noted by then-Chief Justice Fuller in his dissent in Wong Kim Ark.

    Fuller further noted in his masterful dissent that by mandating automatic citizenship for all children of immigrants – no matter the circumstances – the Fourteenth Amendment would have the power “to cut off the legislative power from dealing with the subject.” Article 1 Section 8 of the Constitution grants Congress plenary power over naturalizations. Fuller observes that, “the right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.” Unless there would be no other way to read the plain language of the 14th Amendment other than a mandate granting territorial jurisdiction instead of political jurisdiction (before 1898 nobody read it this way), it is simply imprudent to interpret it in the most stringent way – having the effect of almost completely voiding out an enumerated power of the people’s representatives governing the most vital aspect of a society.

    Extrapolating Birthright to Illegals Countermands the Social Contract and all Semblance of Sovereignty

    - See more at: https://www.conservativereview.com/...t-birthright-citizenship#sthash.rL9zxUno.dpuf
     
  17. Crabtownboy

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    Fuller's was a dissenting opinion and carries no weight in law as his view was rejected by a majority of the court.

    You, via Fuller, are quite incorrect. The Supreme Court did rule and that does become the law of the land no matter how much a person disagrees. It is not a Conservative position to want to change the law. That is a liberal position. So, now you want an activist court to change the law.

    As I said above ou are taking a liberal position. Conservatives, by definition, do not want change whereas liberals desire change. You are asking for change and that is liberal.

    I will start a new thread on this topic.
     
  18. targus

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    Then being a good liberal you should want to change the law - according to your logic anyway.
     
  19. Revmitchell

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    Crabby thinks he knows better what a communist is than those at the CPUSA website and he thinks he knows what a conservative is better than conservatives. It's all pretty convenient.
     
  20. Crabtownboy

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    Your comment is meaningless without an explanation. So, please explain. Thanks.
     

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