A legal analysis of the 14th Amendment

Posted by  $  blarman 5 months, 3 weeks ago to Philosophy
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This is a really thorough article explaining the origins of the 14th Amendment and its understanding. It emphasizes that America can and should reverse our policies to deny birthright citizenship to anyone who has a muddied allegiance to the United States.
SOURCE URL: https://www.dailysignal.com/2019/05/24/does-the-constitution-mandate-universal-birthright-citizenship-heres-the-answer/?mkt_tok=eyJpIjoiWW1GaE9ETmtZalV3T0dZeCIsInQiOiJiNEdjS2RXWEUxK1N5cHViamUzOVc2bnZqOGMreVVKMFJyTmJrWkZ5K0Q0ajV1bko3SUljWWQ3WWxTdGFsenp1UDhRS1BhaWFlQk9hcTkxNUZ5MnBUclF2YjE4cnJiRHJWVTY2d1lrTmR4ZG9zSlhyQnB1NDVleUlJTVFqXC9FUWsifQ%3D%3D


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  • Posted by  $  WilliamShipley 5 months, 3 weeks ago
    Generally speaking we are an outlier in developed countries. The international trend in recent years has been to tighten the requirements for citizenship rather than loosen them.
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    • Posted by  $  Thoritsu 5 months, 3 weeks ago
      Particularly as we give away more and more stuff, like the Europeans!

      Interesting that the "give away" crowd is the same as the citizenship crowd. Obviously buying votes with government money and setting up a "forever" voting block.
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    • Posted by  $  5 months, 3 weeks ago
      Correct. No other first world nation has an immigration or naturalization policy as loose as ours.
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      • Posted by  $  exceller 5 months, 3 weeks ago
        We have obsolete laws on the books.

        Times have changed and naturalization laws must be tailored to reflect that.
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        • Posted by  $  5 months, 3 weeks ago
          I'd actually argue that we have allowed the Supreme Court to usurp what according to Article I of the Constitution is the SOLE job of the Legislative Branch. And because it suited the Democrats' open-borders policies (immigrants tend to vote for Democrats because of their support for handouts), they have been resisting any changes to it since Reagan.
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          • Posted by  $  WilliamShipley 5 months, 3 weeks ago
            I don't think there is any Supreme Court rulings on this subject other than United States v. Wong Kim Ark which established that children born of legal residents were "subject to the jurisdiction of". Even then part of the argument is that they were ineligible for naturalization because of race.

            As far as I know the court has not dealt with children of mothers here illegally.
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            • Posted by  $  5 months, 3 weeks ago
              Plyler vs Doe may apply. https://www.law.cornell.edu/supremeco...
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              • Posted by  $  WilliamShipley 5 months, 3 weeks ago
                Well, I'm a programmer, not a lawyer. I'm not sure that would be a precedent setting opinion on citizenship. I would note that the 14th amendment uses the phrase "subject to the jurisdiction thereof" when speaking of citizenship and "within its jurisdiction" when speaking of equal rights.

                There seems to be no disagreement that the children of foreign diplomats do not become citizens, however they do have the same constitutional rights as anyone else within the country.
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                • Posted by  $  5 months, 3 weeks ago
                  So I think we need to be very careful about the terminology. The Constitution recognizes that rights exist independent of government. So every person on the planet has certain "inalienable" rights. I think we both agree on that. The question is whether or not the government is obligated to protect those rights when the subject is not a citizen of the United States. Note that most of the Amendments to the Constitution prohibit government infringement upon those natural rights but the legal jurisdiction of the Constitution itself only applies to citizens of the United States of America - those who owe their primary allegiance to this nation. It is an improper usurpation of the police and legislative powers of other nations to presume that the Constitution holds jurisdiction over aliens - illegal or otherwise. Of particular note is that it is not US law per se but rather treaties which dictate how US law is applied to aliens. Thus if you are not a citizen of the United States, you fall outside the jurisdiction and protections of the Constitution. A judge properly applying this understanding would rule that if you are not a citizen of the United States, you can not file a lawsuit claiming Constitutional protections because you have no standing. It would not be a matter of Constitutional law, but rather would boil down to the protections afforded based on the treaties between the US and the native country.
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                  • Posted by  $  WilliamShipley 5 months, 3 weeks ago
                    I've been thinking about this. The interpretation seems a bit extreme. Would you suggest that a warrant-less search of a non-citizen's property is acceptable. How about detention without trial.

                    I am troubled by the concept that setting foot in the country gives you the right to tie up the legal system for years prior to being deported, but I'm not quite comfortable over no legal protections whatsoever.
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                    • Posted by  $  5 months, 3 weeks ago
                      Again, all that would be set forth in the treaty between the two nations. That can be as simple as "we're going to treat you like a US citizen as long as you don't abuse the privilege".

                      Remember, this only applies within the US and its territories. Anything outside that isn't covered by the Constitution at all. That's why spying on people in other nations is extra-Constitutional.
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                    • Posted by  $  Olduglycarl 5 months, 3 weeks ago
                      Ok, then you'd have to agree that to judge upon a natural rights issue would be a very slippery slope in regards to the left and their "Emotional" take on the matter.

                      The other thing I question is: "a non citizens property"...personal property such as clothing etc is one thing but Land ownership is another thing. Does Anyone one not a citizen have the right to own property in the USA?
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                      • Posted by  $  5 months, 3 weeks ago
                        "Does Anyone one not a citizen have the right to own property in the USA?"

                        Great question and I'd love for someone to chime in. I only know that there are some kinds of real estate or other property holdings which are subject to government approval, but I know of foreigners who have vacation condos and such and I don't think they had to go to any lengthy means to secure such. On the other hand, my local water district got bought out by Suez - a wholly-foreign company. I know they had to go through a bunch of legal hoops before they could be approved since it covers the entire city...
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                        • Posted by  $  Olduglycarl 5 months, 3 weeks ago
                          Here is my thinking, if a non citizen owns property in our country then doesn't that property come under the jurisdiction of the United States government or at least the jurisdiction of the state inwhich that property is held?; but the owner would still have no rights him/her self, under our constitution???.
                          (so, just by paying taxes on property or income here in the US when one is a citizen of somewhere else does not entitle them to Any rights under our constitution, including voting)???

                          I don't think it would become an enclave of the country the owner is a citizen of...right?
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                          • Posted by  $  5 months, 3 weeks ago
                            Agreed. Because the property ownership is claimed within the United States of America, all claims would necessarily be adjudicated in US courts and be subject to US regulations. The property would be subject to taxation and the owner - regardless of citizenship status - would be liable for paying those taxes on penalty of property forfeiture.

                            "I don't think it would become an enclave of the country the owner is a citizen of...right?"

                            I believe that is called an embassy and is actually a treaty negotiation as the property becomes sovereign territory of the other nation.
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                  • Posted by  $  exceller 5 months, 3 weeks ago
                    "A judge properly applying this understanding would rule that if you are not a citizen of the United States, you can not file a lawsuit claiming Constitutional protections because you have no standing. "

                    Good to know this.

                    I recall instances when illegal immigrants filed lawsuits, although I have no knowledge of the outcome.

                    How is it possible for them to do so?
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                    • Posted by jdg 5 months, 3 weeks ago
                      If you are suing for Constitutional protections on a legal theory that says you're entitled to them, a court must assume that you do have them for the purpose of hearing the case -- because otherwise it would be impossible for legitimate citizens, wrongly denied citizenship or rights, to get those wrongs corrected.

                      If this rule did not exist, Dred Scott could not have filed suit against his master.
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                    • Posted by  $  5 months, 3 weeks ago
                      Because the judge erroneously ignores that one of the very first things which MUST take place when a lawsuit is filed is to ascertain that the plaintiff has standing to bring that particular suit against a particular defendant in that particular court - three qualifications of which at least two (suit and jurisdiction) are prima faciae unsatisfied.
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                      • Posted by  $  exceller 5 months, 3 weeks ago
                        All Obama judges do that.

                        High time that Barr de-fangs them.
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                        • Posted by  $  5 months, 3 weeks ago
                          Many judges do it, that is true. To many, I suspect that it is because they enjoy the power of ruling. This further extends to many Obama-era judges who have been issuing nationwide injunctions even though they are district judges. This is a gross usurpation of the power of the higher courts and in my opinion should automatically qualify them for impeachment and removal from office.
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                          • Posted by  $  exceller 5 months, 3 weeks ago
                            To my knowledge this is one of the priorities of AG Barr.
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                            • Posted by  $  5 months, 3 weeks ago
                              While I'd certainly cheer him on, this is really not an Executive function, but a Legislative one (via impeachment). The downside is that Impeachment of judicial appointees has been notoriously difficult to actually execute - when it has been brought up at all. The Legislative Branch just isn't energetic about reserving their power - they actually enjoy allowing the Supreme Court to make the decisions they themselves should be making.

                              I'd actually be all for this being an automatic impeachment offense, but that would require Constitutional action - again something unlikely to take place outside a Convention of States, etc.
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                              • Posted by  $  exceller 5 months, 3 weeks ago
                                Considering all the factors you described, I see the only way through Barr.

                                The chaotic and idle mess you are describing is the foundation of all irregularities and abuses we are witnessing these days. It is an "anything goes" environment, allowing the aggressive manipulations of the left.

                                The system is completely out of control and it takes someone with a sane, clear mind and strong character like Barr to crack down on the abusers.
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                                • Posted by  $  5 months, 3 weeks ago
                                  The problem is that Barr doesn't have any statutory controls over the Federal Judiciary which allow him to remove judges - even for cause. As per the Constitution, such a job is reserved to the Legislature. It was a great concept but it is one of the major flaws (in my opinion) in the Constitution.

                                  I have actually proposed a different mechanism whereby if a judge is overturned by the Supreme Court, their status on the bench is immediately suspended and that judge would have to pass through the confirmation process again to return to the bench.
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                                  • exceller replied 5 months, 3 weeks ago
  • Posted by Owlsrayne 5 months, 3 weeks ago
    What irks me about these illegal immigrants is that they should be required to study and take: The Oat of Citizenship. If they don't and their children that are born here should take study and take the Oath when they're old enough to do so.
    I come from an immigrant family my grandparents came from Poland and Holland at the beginning of the early 1900s. They all took the Oath of Citizenshipship. Except for my grandmother who was an illiterate peasant from Poland, her older children contacted the Senator of Minnesota (where they lived) to intercede on her behalf to obtain her citizenship papers. Her children taught her English as they were going to school. All my aunts and uncles from Holland al learned to speak English and became citizens. Today's immigrant issue makes me very angry!
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    • Posted by  $  5 months, 3 weeks ago
      100% Agree! I completely support the orderly immigration and naturalization of people who want to become Americans. I do not support the notion that we should take in random refugees and those just "seeking a better life." If you don't wish to become an American - with all that entails - please go find a nation more akin to your values and go there.
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      • Posted by LibertyBelle 5 months, 3 weeks ago
        A lot of us should get together and set up classes to teach the foreigners to become good Americans. I mean that we should do it privately, and in private groups, not that we should expect the government to do it. (It might or might not be Constitutional for the govermnent to do it, and I think there are government-supported classes for it now, but I am afraid that we cannot trust it to do it right).
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  • Posted by  $  25n56il4 5 months, 3 weeks ago
    Don't even go there! My grandmother, an American Indian born in Paint Rock, Texas, was not allowed citizenship until after my father (her 4th child) was born in 1914! I resent 'Anchor Babies". I do not recognize them! If both your parents were not born in this country, you cannot be a citizen as far as I am concerned. I'm sorry, this topic raises my blood pressure! My first American ancestor was born in Massachusetts in 1625! My family has been in Texas since 1834. We still hold our land granted to us from Mexico.
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  • Posted by LibertyBelle 5 months, 3 weeks ago
    I can read English, and I have read the 14th Amendment. It says "all persons born with the borders of the United States and subject the the jurisdiction thereof..." The children of diplomats, who have "diplomatic immunity" do not qualify, but others do. Of course, other children born here are not legally permitted to commit crimes. Nor are they necessarily immune from punishment if they do. I believe in birthright citizenship.
    (That does not mean that people should be allowed to jump the fence to get in in the first place).
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    • Posted by  $  WilliamShipley 5 months, 3 weeks ago
      I would suggest that there are two statements of jurisdiction in the 14th amendment. The first one, in the citizenship section said "subject to the jurisdiction thereof". The second part, on equal protection says "within it's jurisdiction".

      Clearly there is a distinction to being within the country and subject to its jurisdiction. The meaning of that is subject to interpretation.

      In the days of clipper ships, getting here took time and was a level of commitment. In the jet age, one can arrive, give birth and leave within a week or so. It seems absurd that one would then be a citizen of anywhere other than the parent's country.
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      • Posted by LibertyBelle 5 months, 2 weeks ago
        Doesn't "subject to the jurisidiction" mean "having
        to obey the laws" (which apparently doesn't apply to diplomats and their offspring?)
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        • Posted by  $  5 months, 2 weeks ago
          No. Even tourists are under an obligation to uphold the laws. Jurisdiction in this case refers to original jurisdiction - meaning that the courts of that nation have the final say. If you can appeal to an embassy, then you are not "subject to the jurisdiction" of the United States of America.
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    • Posted by  $  5 months, 3 weeks ago
      Note that there are clearly two requirements. The first is that one is born within the borders of the United States. The second is key: they must be subject to the jurisdiction thereof. Children are born with their allegiance to that of their parents. If neither parent is a US citizen, the child is born subject to a jurisdiction other than the United States. That is the key provision being ignored in our current judicial system.

      This is not a new interpretation, either. The notes from the author of the Fourteenth Amendment were quite clear. See https://www.wkyc.com/article/news/nat...
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  • Posted by ycandrea 5 months, 3 weeks ago
    I think the article presented a very wishy-washy interpretation of the two amendments. I believe we need to amend the Constitution and state very plainly that children born to people who forcefully come to our country by illegal means cannot become citizens until and unless they apply for citizenship and swear allegiance to our country.
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  • Posted by  $  exceller 5 months, 3 weeks ago in reply to this comment.
    " As per the Constitution, such a job is reserved to the Legislature. It was a great concept but it is one of the major flaws (in my opinion) in the Constitution."

    Yes. Since the Founding Fathers put the Constitution in place, a lot of distortion was implemented by the left. They know exactly where to insert their abusive "changes" to their advantage.

    Obama was an especially corrosive force to make that happen. I remember the confirmation hearings of Sotomayor in which her greatest "asset" was the "flexible interpretation" of the Constitution, which - according to Obama - outlived its usefulness and needs to be changed. To benefit the left, no doubt.
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