Arizona legislators at it again?

[sarge]

As often seems to be the case, the effect of the 14th is clear, but the actual text less so.

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.
In the absence of a court opinion to the contrary, it is reasonable to interpret the above in a way that requires persons to be here legally IOT secure citizenship as a birth right.


In practice, it isn't likely that this interpretation would gain any traction. Short of an amendment, no state will successfully deny citizenship to anyone born in the US, regardless of the immigration status of the parents.

 

[Megalodon]

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.
In the absence of a court opinion to the contrary, it is reasonable to interpret the above in a way that requires persons to be here legally IOT secure citizenship as a birth right.

Don't think so... It just means that the children of diplomats are not citizens. Even a tourist is subject to the jurisdiction of the land.

 

[EvilSmurf]

As often seems to be the case, the effect of the 14th is clear, but the actual text less so.

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.
In the absence of a court opinion to the contrary, it is reasonable to interpret the above in a way that requires persons to be here legally IOT secure citizenship as a birth right.


In practice, it isn't likely that this interpretation would gain any traction. Short of an amendment, no state will successfully deny citizenship to anyone born in the US, regardless of the immigration status of the parents.

An Illegal Immigrant is still "Subject to the jurisdiction (of the United States)", otherwise an illegal immigrant who committed a crime here would be unable to be jailed for it. The Jurisdiction clause is obviously there for the children of diplomats who are based in the United States, but not subject to the jurisdiction of, since they have diplomatic immunity.

 

[Alferd_Packer]

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.
In the absence of a court opinion to the contrary, it is reasonable to interpret the above in a way that requires persons to be here legally IOT secure citizenship as a birth right.

That argument is logically flawed. If you are not subject to the jurisdiction of the U.S., then you wouldn’t be illegal. If an illegal commits a crime such as robbery or murder, then you would want them to be subject to the jurisdiction of U.S. laws.

The term “Subject to the jurisdiction of” simply differentiates diplomats and their families who, under the concept of diplomatic immunity, are not subject to the jurisdiction of the United States.

 

[JoeTheJuggler]

He is trying to write a law that will be challenged as unconstituional so that he can take it up to SCOTUS in the hopes that SCOTUS will reverse United States v. Wong Kim Ark, and all the other cases based on that ruling.

And he will lose. You'd think the good people of Arizona would find this approach to be a waste of state resources really just to conduct political posturing (in future campaign ads, he can claim he tried to take on the gummint to appeal to Tea Bagger and other anti-immigrant types).

 

[Alferd_Packer]

In the absence of a court opinion to the contrary, it is reasonable to interpret the above in a way that requires persons to be here legally IOT secure citizenship as a birth right.

The court opinion can be found in Wong Kim Ark

Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:

The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together -- whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse [p679] with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent Com. 44; Story Conflict of Laws § 48; Wheaton International Law (8th ed.) § 249; The Anne (1818), 3 Wheat. 435, 445, 446; Gittings v. Crawford (1838), Taney 1, 10; In re Baiz (1890), 135 U.S. 403, 424.

 

[Ziggurat]

You think it might be a bill about highway maintenance?

I know what it's about. What you AND I don't know is what it actually does. And the constitutionality depends on what it does.

Seriously, why is the idea of waiting to see what it says before jumping to conclusions somehow controversial?

 

[Alferd_Packer]

Here is a better quote from WKA

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.

 

[sarge]

Don't think so... It just means that the children of diplomats are not citizens. Even a tourist is subject to the jurisdiction of the land.

An Illegal Immigrant is still "Subject to the jurisdiction (of the United States)", otherwise an illegal immigrant who committed a crime here would be unable to be jailed for it. The Jurisdiction clause is obviously there for the children of diplomats who are based in the United States, but not subject to the jurisdiction of, since they have diplomatic immunity.

That argument is logically flawed. If you are not subject to the jurisdiction of the U.S., then you wouldn’t be illegal. If an illegal commits a crime such as robbery or murder, then you would want them to be subject to the jurisdiction of U.S. laws.

The term “Subject to the jurisdiction of” simply differentiates diplomats and their families who, under the concept of diplomatic immunity, are not subject to the jurisdiction of the United States.

I did say "in the absence of a court opinion". I also pointed out that I don't believe the argument will gain any traction.

I have argued the legal definition of "jurisdiction" with the group of folks that beleive that moving US detainees off-shore somehow strips them of their constitutional rights.

 

[leftysergeant]

Sounds like the bill will change some technicalities of the process, but if this description is right, then it's not going to keep them from becoming citizens. Until the bill is actually made public, there's no reason to conclude that it will violate the 14th amendment.

The state has no part to play in the process, and is usurping a Federal power to make their own bigots feel good about the right-wing bigot take-over of the state government.

It violates the constitution and all parties involved should take a hike.

Maybe the Serbs still have a place for their kind.

 

[Alferd_Packer]

Th
It violates the constitution

They know that.

As it stands, they would have to change the 14th amendment to be able to enact the law.

They are trying to legislate from the Supreme Court.

If they can get SCOTUS to overturn Wong KimArk, they won't need to change the amendment.

 

[Ziggurat]

The state has no part to play in the process

Yes it does. Birth certificates aren't federal, lefty.

 

[leftysergeant]

Yes it does. Birth certificates aren't federal, lefty.

So? The state has to issue the birth certificate. Any registrar who refuses has committed a federal crime by denying the newborn his or her 14th Ammendment rights and it is not up to the redneck slimeballs in the state legislature to let them do so.

 

[Alferd_Packer]

Yes it does. Birth certificates aren't federal, lefty.

They are now. Although collected and maintained by the state, new anti-terroism laws mandate basic standards for all states to follow.

 

[cwalner]

And he will lose. You'd think the good people of Arizona would find this approach to be a waste of state resources really just to conduct political posturing (in future campaign ads, he can claim he tried to take on the gummint to appeal to Tea Bagger and other anti-immigrant types).

agreed, even though his logic is as follows (from the article)

He said courts which have ruled in the past that citizenship can be a matter of the geography of birth have gotten it wrong. More to the point, Pearce said he believes a new lawsuit challenging an Arizona law on citizenship will have a different result.

"With this Supreme Court, we'll win that battle,' he said, saying that's why those who want citizenship for the children of illegal immigrants want to kill the legislation before it ever gets on the books. "They know I have a 5-4 states' rights court.'

Where I think he is completely off base is that, even as pro-states rights some of the justices are, they probably understand that immigration is one of the powers specifically reserved for the feds, not the states. It would not surprise me if such a law got a 9-0 smackdown even from the current court.

 

[Alferd_Packer]

It would not surprise me if such a law got a 9-0 smackdown even from the current court.

They wouldn't even grant Cert on it.

 

[leftysergeant]

agreed, even though his logic is as follows (from the article)

Actually, if that Nazi hugging slimeball Pearce has anything to do with the legislation, "logic" has nothing to do with it.

 

[cwalner]

Actually, if that Nazi hugging slimeball Pearce has anything to do with the legislation, "logic" has nothing to do with it.

no, his logic is sound, but his premises are off:

Premise A: Current Court is 5-4 in favor of states rights issues (True)
Premise B: Immigration law is a State's Rights issue (False)

Conclusion: Current Court will uphold this law in a 5-4 decision.

His logic is sound. The issue is that one of his premises is false. were it true, his conclusion would be logically valid.

 

[leftysergeant]

His motivation for introducing any of his idiotic measures is to promote the Nazi cause. Naziism is based on faulty reasoning. Only dimbulbs are Nazis these days.

 

[cwalner]

His motivation for introducing any of his idiotic measures is to promote the Nazi cause. Naziism is based on faulty reasoning. Only dimbulbs are Nazis these days.

Care to provide links with evidence that he is affiliated with the Nationalist Socialist Party or any neo-nazi movement.

I don't like some of his work, and I defenitely don't agree with his politics. However, your calling him a Nazi doesn't really add anything to the debate.

As I stated, this is a bad law. His logic for introducing it is sound, but because it is based on a faulty premise his expectations of how it will be handled by the SCOTUS are invalid and a waste of resources that AZ could better spend elsewhere.

He's wrong, but that is no excuse to call him a Nazi.