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Trump's logic about birthright is in trouble before it even starts

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From: http://www.businessinsider.com/bill-oreilly-donald-trump-immigration-deport-birthright-2015-8

Fox News host Bill O'Reilly repeatedly challenged a key portion of Donald Trump's immigration agenda during an interview Tuesday night.

The real-estate magnate and Republican presidential candidate recently unveiled his multipart plan to clamp down on illegal immigration.

Among other things, Trump called for ending birthright citizenship, or the right of anyone born in the US to American citizenship.

As O'Reilly pointed out, however, the Constitution's 14th Amendment enshrines birthright citizenship into US law.

"That's not going to happen because the 14th Amendment says if you're born here, you're an American," O'Reilly said. "And you can't kick Americans out. The courts would block you at every turn. You must know all that."

Trump insisted that the Constitution did not grant citizenship to "anchor babies," a pejorative term used to describe the children of people who enter the country illegally with the purpose of having a son or daughter who would then be granted US citizenship.

"Bill, I think you're wrong about the 14th Amendment," Trump said. "And frankly, the whole thing with 'anchor babies' and the concept of 'anchor babies' — I don't think you're right about that."

But Trump, citing unnamed lawyers, held his ground on the citizenship issue.

"Bill, I don't think that they have American citizenship," he said. "And if you speak to some very, very good lawyers — and I know some would disagree, but many of them agree with me — you're going to find they do not have American citizenship. We have to start a process where we take back our country. Our country is going to hell."

It is sad when Bill O'Reilly is the voice of reason and the funny part is he is exactly right.

The SCOTUS has already decided on this issue in United States v. Wong Kim Ark

United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a United States Supreme Court case in which the Court ruled that practically everyone born in the United States is a U.S. citizen. This decision established an importantprecedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.

Wong Kim Ark, who was born in San Francisco to Chinese parents around 1871, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed essentially 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.

Edited by jyaku

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You are correct, I don't see any changes to the 14th amendment or for that matter any amendment to the constitution. However, the 14th amendment only guarantees citizenship to those born in the U.S. Their families if not born in the U.S., need to go through the regular immigration process.


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I wonder how much support a constitutional amendment would garner for requiring 1 US citizen parent.

I think it would get a majority vote, but not sure if it would get the 2/3 needed to change the existing amendment.

Edited by Teddy B

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I wonder how much support a constitutional amendment would garner for requiring 1 US citizen parent.

With the gridlock and gerrymandering of congress.. a constitutional amendment has a better chance if there's a constitutional referendum proposed by the states itself instead of by congress.

From: http://www.archives.gov/federal-register/constitution/

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention.


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With the gridlock and gerrymandering of congress.. a constitutional amendment has a better chance if there's a constitutional referendum proposed by the states itself instead of by congress.

From: http://www.archives.gov/federal-register/constitution/

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention.

You are correct, the states, if there are enough, can propose a constitutional convention, and essentially re-write the entire document or simply propose amendments. So far this option has never been used, but there is talk every now and then about calling one.


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From: http://www.businessinsider.com/bill-oreilly-donald-trump-immigration-deport-birthright-2015-8

It is sad when Bill O'Reilly is the voice of reason and the funny part is he is exactly right.

The SCOTUS has already decided on this issue in United States v. Wong Kim Ark

United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a United States Supreme Court case in which the Court ruled that practically everyone born in the United States is a U.S. citizen. This decision established an importantprecedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.

Wong Kim Ark, who was born in San Francisco to Chinese parents around 1871, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed essentially 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 constitutional scholars of VJ might be interested in learning that the 14th ammendment has a "and subject to the jurisdiction thereof" clause that qualifies exactly which of the persons born in the US are actually citizens. That clause is the reason why the opinion in US v Ark doesn't provide citizenship to sons of foreign diplomats of sons of foreign invaders. As such it isn't too hard for one to craft a legal theory here under which unauthorized aliens are not "subject to the jurisdiction thereof" because they weren't lawfully admitted. Alternatively, a bit of rhetorical magic and one could even make them invaders. I am not 100% sure that this argument would fly, and I find the idea of denying citizenship abhorrent in that way. But President Trump and his lawyers could actually test this theory if they wanted by passing a law doing that and employing a good Solicitor General. They could get lucky. I mean, the Supreme allowed the healthcare mandate by transforming a penalty into a tax!

But I doubt he will. Trump is smart and he knows that this is just a hot button to gather more steam and votes from the angry GOP base.


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"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."

That seems pretty cut and dry.. I'm not a layer, what exactly was the intent of "and subject to the jurisdiction thereof" ??


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"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."

That seems pretty cut and dry.. I'm not a layer, what exactly was the intent of "and subject to the jurisdiction thereof" ??

To prevent granting citizenship to children of diplomats. Those people have diplomatic immunity and are not subject to the laws of the United States.

No matter what the lulu crazies say about overturning the 14th Amendment without a constitutional amendment, it's not going anywhere. The courts have been consistent on extending birthright citizenship for over 100 years.

Edit to add: the only other method would be get the Supreme Court to overrule the line of decisions regarding the 14th Amendment.

Edited by Killary

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To prevent granting citizenship to children of diplomats. Those people have diplomatic immunity and are not subject to the laws of the United States.

No matter what the lulu crazies say about overturning the 14th Amendment without a constitutional amendment, it's not going anywhere. The courts have been consistent on extending birthright citizenship for over 100 years.

Edit to add: the only other method would be get the Supreme Court to overrule the line of decisions regarding the 14th Amendment.

Yes I don't think Justice Roberts, Kennedy are that crazy so it'll be a 6-3 decision. Scalia/ Thomas will be retarded as usual.. Alito might make it 7-2 but I doubt it.


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Yes I don't think Justice Roberts, Kennedy are that crazy so it'll be a 6-3 decision. Scalia/ Thomas will be retarded as usual.. Alito might make it 7-2 but I doubt it.

Stare decisis is a pretty powerful thing. I doubt even Scalia would dip his toe in this pool of crazy.

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"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."

That seems pretty cut and dry.. I'm not a layer, what exactly was the intent of "and subject to the jurisdiction thereof" ??

Here's the thing. The 14th amendment started out during the 'reconstruction' period. A difficult time after the Civil War, in which the southern states had to agree to the amendment to get back in the good graces again. They weren't happy about it at all. You know why? Because this amendment sprang out of the notion of what to do with the newly freed slaves, their children, children's children etc. Now, the slaves were not 'legal immigrants' (we didn't really have any sort of real immigration system for ages after this amendment even), they were men and women dragged to the United States in chains. With the concept of freedom finally declared for all men regardless of race, the government had to figure out what to do to put a final stop to any further abuse and ensure African Americans and their future generations were indeed citizens of this land. This is exactly why the 14th upended Dredd Scott. The language is broad, and purposefully so. There could be no misunderstanding here and yet it had to be reaching enough to end the stupidity. The subject later came to apply to Native Americans, and also to those immigrants coming through Ellis Island (imagine how many of these immigrants were also attacked and insisted their children didn't *deserve* to be citizens?) Subject to jurisdiction thereof, also means a person who does not hold an allegiance to another country (this is why it ruled out diplomats of other nations etc and it got tricky later on defining how Native Americans fit into this criteria).

To me the law is clear that it does not mean or ever imply that if you were simply visiting and your child was born here, that they are automatically a citizen. But it seems clear to me, that if you live, work, and pay taxes here, and that you have resided here for some time - that your children, if born here, are citizens. US does not recognize dual citizenship technically, but at the same time doesn't exactly disallow it. Therefore, unless a person truly renounces a citizenship of another country, there's a lot of us that may be technically violating the terms of the 14th, with regards to the original intent and interpretation of the meaning of 'jurisdiction'. It is why our oath is the way it is framed. While an illegal immigrant may have an allegiance to another country (unless they decide to renounce it), their children born here do not. Almost all of them identify themselves as American, because they are American and are subject to the jurisdiction of America because they are of no other jurisdiction. To me that's part of the spirit of the 14th amendment. People may not like it much. But I suspect people didn't like it back then either. In fact you can find plenty of arguments during the framing of this amendment based on the 'horrible' thought that a Chinese or Gypsy immigrant could potentially become a citizen. US vs Wong Kim Ark pretty much further clarified the direction of how broadly the amendment could be interpreted especially regarding parental status. Trump should stop playing a fool. Any lawyer worth his salt knows this is a losing game.

Here's a giant website on it with an originalist slant, a lot of comments for and against. http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/

http://www.economist.com/blogs/democracyinamerica/2010/11/birthright_citizenship The jurisdiction argument has come up before, it either loses or never goes anywhere. I mean really, do we want to suddenly discredit millions of African Americans, Native Americans, and ancestors of immigrants that technically immigrated before there was anything that could be classified as immigration? I know it's a touchy subject to some people, but if you have to look back on a root cause for the reason why this amendment is the way it is -- blame a bunch of people who thought freedom didn't actually mean for everyone.

Edited by yuna628

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To prevent granting citizenship to children of diplomats. Those people have diplomatic immunity and are not subject to the laws of the United States.

No matter what the lulu crazies say about overturning the 14th Amendment without a constitutional amendment, it's not going anywhere. The courts have been consistent on extending birthright citizenship for over 100 years.

Edit to add: the only other method would be get the Supreme Court to overrule the line of decisions regarding the 14th Amendment.

Wrong on the first line, right on the second line, wrong on the third line.

1) The text was written that way to exclude the citizens of Indian nations without excluding the freed slaves. At the time of reconstruction, the Indian nations felt that making them US citizens and thus subject to the laws of US was an act of hostility. Slaves however were subject to US laws. Congress later passed a law making Indians citizens. The "preventing granting citizenship of diplomats" was a supreme court ruling and wasn't a major concern while drafting the 14th ammendment, which was about protecting the rights of former slaves.

3) The thing is that there is no stare decisis to be overturned for sons of illegal aliens. There are several concepts that point in that direction, but it wasn't really tested by the Supreme Court - though it was in several lower courts. Having said that, all were tests of the state laws. If congress passed a federal law they could use the Solicitor General to pretty much bring the case all the way up and test it. It would be a waste of money, but the legal theory is there.


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Here's the thing. The 14th amendment started out during the 'reconstruction' period. A difficult time after the Civil War, in which the southern states had to agree to the amendment to get back in the good graces again. They weren't happy about it at all. You know why? Because this amendment sprang out of the notion of what to do with the newly freed slaves, their children, children's children etc. Now, the slaves were not 'legal immigrants' (we didn't really have any sort of real immigration system for ages after this amendment even), they were men and women dragged to the United States in chains. With the concept of freedom finally declared for all men regardless of race, the government had to figure out what to do to put a final stop to any further abuse and ensure African Americans and their future generations were indeed citizens of this land. This is exactly why the 14th upended Dredd Scott. The language is broad, and purposefully so. There could be no misunderstanding here and yet it had to be reaching enough to end the stupidity. The subject later came to apply to Native Americans, and also to those immigrants coming through Ellis Island (imagine how many of these immigrants were also attacked and insisted their children didn't *deserve* to be citizens?) Subject to jurisdiction thereof, also means a person who does not hold an allegiance to another country (this is why it ruled out diplomats of other nations etc and it got tricky later on defining how Native Americans fit into this criteria).

To me the law is clear that it does not mean or ever imply that if you were simply visiting and your child was born here, that they are automatically a citizen. But it seems clear to me, that if you live, work, and pay taxes here, and that you have resided here for some time - that your children, if born here, are citizens. US does not recognize dual citizenship technically, but at the same time doesn't exactly disallow it. Therefore, unless a person truly renounces a citizenship of another country, there's a lot of us that may be technically violating the terms of the 14th, with regards to the original intent and interpretation of the meaning of 'jurisdiction'. It is why our oath is the way it is framed. While an illegal immigrant may have an allegiance to another country (unless they decide to renounce it), their children born here do not. Almost all of them identify themselves as American, because they are American and are subject to the jurisdiction of America because they are of no other jurisdiction. To me that's part of the spirit of the 14th amendment. People may not like it much. But I suspect people didn't like it back then either. In fact you can find plenty of arguments during the framing of this amendment based on the 'horrible' thought that a Chinese or Gypsy immigrant could potentially become a citizen. US vs Wong Kim Ark pretty much further clarified the direction of how broadly the amendment could be interpreted especially regarding parental status. Trump should stop playing a fool. Any lawyer worth his salt knows this is a losing game.

Here's a giant website on it with an originalist slant, a lot of comments for and against. http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/

http://www.economist.com/blogs/democracyinamerica/2010/11/birthright_citizenship The jurisdiction argument has come up before, it either loses or never goes anywhere. I mean really, do we want to suddenly discredit millions of African Americans, Native Americans, and ancestors of immigrants that technically immigrated before there was anything that could be classified as immigration? I know it's a touchy subject to some people, but if you have to look back on a root cause for the reason why this amendment is the way it is -- blame a bunch of people who thought freedom didn't actually mean for everyone.

This ^


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