Arizona legislators at it again?

[JoeTheJuggler]

The whole birthright citizenship thing is rather interesting. Anybody who says it's a clear cut issue is bonkers. The whole "subject to the jurisdiction" thing isn't cut and dried. The way the 14th Amendment is written doesn't address parentage. It's basically saying, "is the person born here subject to the jurisdiction of the USA."

Well, aliens, legal or otherwise, are not subject to the same jurisdiction as an ordinary citizen (you see it gets kinda circular here). For one thing, they can't be drafted and can't serve in the military. Illegal aliens can be expelled at will. Legal aliens have no "right" to be here and can be expelled easily. Since typically they are citizens of other countries (assuming both parents were citizens of a foreign country), they could be convicted of treason in that country, serve in that country's government, and even be forced to serve in the military.

Was "subject to the jurisdiction" only intended for diplomats? I don't think so. After all, diplomats are still subject to jurisdiction, albeit very limited jurisdiction in some cases. At the time it was widely recognized that children of diplomats weren't citizens anyway, so there wasn't much need to address that issue.

Around that time the civil rights act that was passed declared, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." (emphasis added) That provides some context about the intent of the 14th Amendment. Furthermore, when we think about the intent, did the states passing it envision that the child of a husband and wife spy team being a citizen? If an army invaded the USA, would children born to the invaders while on American soil be citizens?

According to this site, Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”

Apparently Senator Trumbull at that time declared, "The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means." (ibid)

To me it makes a lot more sense that the intention was not to include legal or illegal aliens. Would Americans have really intended to create a situation where citizens of another country could pop across the border for a day, have a baby, return back to their home country, then send that kid back 35 years later so he could run for the president of the United States? Seriously. We prohibit naturalized citizens from running, but we wouldn't want to prohibit the aforementioned scenario?

That subsequent court rulings and decisions have muddied the waters is not in doubt. It's not crystal clear. Personally, I think the right way to handle it is to create an amendment to the amendment clearing it up once and for all. I, for one, don't think that exiting the womb on American soil should grant someone citizenship. There are plenty of other countries that feel the same way.

I disagree with your assessment of how the 14th Amendment is read and the clarity of the court decisions on this matter. The judiciary has the authority to interpret the Constitution, and they have interpreted the 14th Amendment to mean that a person born in the U.S. of illegal alien parents is a citizen for over a hundred years now.

The judiciary could certainly reverse its long-held position, but short of a landmark reversal, it would take an amendment to the U.S. Constitution to allow the states to make laws that would deny citizenship to a person born in the U.S. of illegal alien parents.

ETA: At the very least, it clearly is not within the authority of a state to change the interpretation of the 14th Amendment as this law would do. Again, the 14th Amendment is starkly clear in denying the states that right.

 

[Uncayimmy]

I disagree with your assessment of how the 14th Amendment is read and the clarity of the court decisions on this matter. The judiciary has the authority to interpret the Constitution, and they have interpreted the 14th Amendment to mean that a person born in the U.S. of illegal alien parents is a citizen for over a hundred years now.

Do you have a citation for that? You don't mean Wong Kim Ark, do you? Because the court did not say anything about illegal alien parents.

The judiciary could certainly reverse its long-held position, but short of a landmark reversal, it would take an amendment to the U.S. Constitution to allow the states to make laws that would deny citizenship to a person born in the U.S. of illegal alien parents.

If you're referring to Ark, it wouldn't require a reversal. They could let Ark stand given a case with different facts. Ark had a family with a permanent residence doing business in the USA. That doesn't necessarily apply to a woman here illegally and temporarily giving birth to a child. It doesn't necessarily apply to a woman here legally on a visa giving birth to a child.

The way it will have to go down, in my opinion, is the executive branch pushing the issue, just like in Ark. Deny entry to a child born here under those conditions trying to enter without a visa. Let that case wind through the courts and see what happens.

ETA: At the very least, it clearly is not within the authority of a state to change the interpretation of the 14th Amendment as this law would do. Again, the 14th Amendment is starkly clear in denying the states that right.

Would you object to an amendment that essentially prohibited anchor babies?

 

[tyr_13]

Would you object to an amendment that essentially prohibited anchor babies?

And just how would that work?

 

[Uncayimmy]

And just how would that work?

Are you asking me to write the text of the amendment? The amendment could be as simple as repealing that particular clause of the 14th and stating that it will be set by congress. We could then write the laws as specific as needed. Suffice it to say other countries have systems in place that effectively prohibit anchor babies.

 

[tyr_13]

Are you asking me to write the text of the amendment? The amendment could be as simple as repealing that particular clause of the 14th and stating that it will be set by congress. We could then write the laws as specific as needed. Suffice it to say other countries have systems in place that effectively prohibit anchor babies.

Oh sorry, I misread and thought you were suggesting that Arizona's legislature could do that.

 

[logger]

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.

Whats the difference between nazi's and socialism

Whats the difference between liberals and socialist's

 

[Uncayimmy]

Oh sorry, I misread and thought you were suggesting that Arizona's legislature could do that.

Ah, understood. No, they couldn't do it as far as I can tell. I live here. I grew up and spent half my adult life around Washington, DC. Let me just say Arizona is very odd when it comes to politics.

 

[tyr_13]

Whats the difference between nazi's and socialism

Whats the difference between liberals and socialist's

Are those rhetorical questions or do you really want the statement of the obvious?

 

[JoeTheJuggler]

Do you have a citation for that? You don't mean Wong Kim Ark, do you? Because the court did not say anything about illegal alien parents.

Wong Kim Ark spelled out the interpretation of "under the jurisdiction":

Whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution

If you're referring to Ark, it wouldn't require a reversal. They could let Ark stand given a case with different facts. Ark had a family with a permanent residence doing business in the USA. That doesn't necessarily apply to a woman here illegally and temporarily giving birth to a child. It doesn't necessarily apply to a woman here legally on a visa giving birth to a child.

Again, Ark spelled out what the "under the jurisdiction" part meant, and therefore what child born in the US was excluded from being a citizen.

In the Ark opinion, Justice Gray says that the 14th Amendment should be interpreted in the light of English common law which gave automatic citizenship to any child born there except for those born to diplomats and ambassadors or those born to current enemies.

So if we were to apply this to, for example, a child born to illegal Mexican immigrants, we would see that the parents are in neither of these categories where there would be an exception. The parents are in U.S. jurisdiction, and they are neither enemies of the U.S. nor are they diplomats or ambassadors.

 

[Grizzly Adams]

I agree that there is little chance the law will withstand constitutional scrutiny. I say "little" because, as Zig said, we haven't seen the text of the proposed law, and I can't say with 100% certainty that they haven't found a way around the explicit text of the 14th amendment.

At the federal level it's doable, but we'd basically have to declare war with every other nation on earth and statutorily designate every person not lawfully admitted to be an enemy soldier. I'd put the odds of this happening to be about the same as the odds Pearce has found some loophole in the 14th amendment's birthright citizenship clause.

 

[Uncayimmy]

Joe, you can certainly stretch the ruling the way you describe, but pretending that it would definitely apply is rather silly as the facts and circumstances could be very different. Furthermore, while SCOTUS wants to honor that which is previously settled, it has no problems clarifying or even correcting mistakes. There's a rich history of the court reversing itself (204 times according to the linked source).

Basically, you're putting your fingers in your ears while shouting, "It's already settled. La la la. It's already settled." You have no actual rebuttal for the counterarguments that it was a bad decision nor do you have a particularly convincing argument that a case ruling that children born to an established family (permanent residence and conducting business) at a time in our history when there was no real immigration law is the same thing as a transient illegal alien entering the USA for the purpose of having a child. Such a scenario was not even on a consideration in 1898.

You also avoided the question. Would you be against an amendment that effectively denied citizenship to anchor babies?

 

[tyr_13]

Joe, you can certainly stretch the ruling the way you describe, but pretending that it would definitely apply is rather silly as the facts and circumstances could be very different. Furthermore, while SCOTUS wants to honor that which is previously settled, it has no problems clarifying or even correcting mistakes. There's a rich history of the court reversing itself (204 times according to the linked source).

Basically, you're putting your fingers in your ears while shouting, "It's already settled. La la la. It's already settled." You have no actual rebuttal for the counterarguments that it was a bad decision nor do you have a particularly convincing argument that a case ruling that children born to an established family (permanent residence and conducting business) at a time in our history when there was no real immigration law is the same thing as a transient illegal alien entering the USA for the purpose of having a child. Such a scenario was not even on a consideration in 1898.

Why would it have to be in order to be applicable? Really, why? Besides that, you're drastically wrong to say there was 'no real immigration law' in the late 1800's. There were even quotas of how many immigrants could come from where. The ruling seems completely applicable because it defined what 'under the jurisdiction of' meant. Of course the courts can reverse older decisions, but I haven't seen a legal argument for why they would. The 14th Amendment hasn't be changed by any other Amendment and no one has brought up other rulings that address the previous one.

You also avoided the question. Would you be against an amendment that effectively denied citizenship to anchor babies?

It wasn't addressed to me, but I would be against such an amendment. It is a bad fix to a blown out of proportion problem that goes against some very American ideals. This gets dangerously close to a derail though because we are talking about if anything Arizona could do about the 14th and citizenship would be anywhere near legal, not if it's a good idea for the Federal government to change the 14th.

 

[JoeTheJuggler]

You have no actual rebuttal for the counterarguments that it was a bad decision

Except that I've shown it to be accepted law cited in a couple of other Supreme Court cases since then.

nor do you have a particularly convincing argument that a case ruling that children born to an established family (permanent residence and conducting business) at a time in our history when there was no real immigration law is the same thing as a transient illegal alien entering the USA for the purpose of having a child.

I think you have the burden of proof backward. Before there was such a concept of "illegal immigrant" the law was, as the Ark decision stated, based on English common law which said that anyone born of a parents who weren't an enemy or foreign diplomats or ambassadors was a citizen.

That is, the formulation only excluded these two categories. You're arguing that this new category (child of illegal immigrants) wasn't counted as all others not falling into the two enumerated categories, but that they should comprise a third category.

Even if you're right, that that should be done, it could only be done as a major change in the law--either a landmark ruling that would change about 100 years of accept case law or by constitutional amendment.

Would you be against an amendment that effectively denied citizenship to anchor babies?

I would, but that isn't the topic of this thread, and I've avoided answering your question because I suspect you want to change the topic to a debate on such an amendment. The topic of this thread is a law that would be proposed by a state for the expressed purpose of challenging current judiciary interpretation of the 14th Amendment.

 

[Uncayimmy]

Why would it have to be in order to be applicable? Really, why?

It could apply. I never said that it couldn't. The Constitution has been around for over 200 years, yet SCOTUS still looks at constitutional issues. Lawyers constantly make arguments about whether a particular decision should apply or not, and the justices themselves disagree on the applicability. When the facts of a case are different, that's often a reason for the court to revisit an issue. Sometimes they do it to affirm that the prior case indeed does apply. Sometimes they end up differentiating the new case from the prior case. That's just how it works.

As I have repeatedly stated, it's not cut and dried.

Besides that, you're drastically wrong to say there was 'no real immigration law' in the late 1800's. There were even quotas of how many immigrants could come from where.

Go read the history of immigration law. It was basically a mess back then. At the time of that ruling that feds had just recently taken over citizenship from the states. It was a decade later that the precursor to INS was formed. There is also the issue of immigration versus visitors. The ruling which everybody cites was dealing with people permanently established: immigrants. Visitors are a different matter. Furthermore, there wasn't even a border patrol at that time.

The ruling seems completely applicable because it defined what 'under the jurisdiction of' meant. Of course the courts can reverse older decisions, but I haven't seen a legal argument for why they would. The 14th Amendment hasn't be changed by any other Amendment and no one has brought up other rulings that address the previous one.

You have seen arguments that they got it wrong. You can disagree with those arguments, but it's disingenuous to say they are not there. Two justices dissented in that opinion, so while the ruling stands, the fact is that two of the most trusted legal minds of the time disagreed.

It wasn't addressed to me, but I would be against such an amendment. It is a bad fix to a blown out of proportion problem that goes against some very American ideals. This gets dangerously close to a derail though because we are talking about if anything Arizona could do about the 14th and citizenship would be anywhere near legal, not if it's a good idea for the Federal government to change the 14th.

If you consider it a derail, report it. I consider it thread drift. I don't know what American ideals you are referring to. I think one "ideal" is clearly demonstrated in the oath of naturalization:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...


So, think about this for a moment. We have a pregnant woman in this country legally (say on a visitor's visa). In order for her to become a citizen what does she have to do?

* She has to get a green card (it has its own requirement including quotas) and reside in the USA for five years.
* She has to reside in the jurisdiction in which she files for at least 3 months prior to the application.
* After the application she has to stay in the USA up until she's naturalized.
* She has to read and write English as well as have a basic understanding of history and civics.
* She has to be of "good moral character" and have supported the Constitution (no rabble rousers).

That speaks to the ideals Americans have about citizenship. I guess I'm missing the "ideal" Americans have that says, "If a baby exits a vagina on US soil (but not territories), it's a citizen." I would be in favor of granting citizenship to children of stateless parents - that speaks to an American ideal. Other countries do that, but they also recognize that children of parents who are not stateless become citizens of their parents' state.

You are literally arguing that Americans have an ideal that says if a woman who knows no English evades border patrol and makes it 10 feet into the USA before giving birth that we welcome that child as a citizen. Please describe that ideal.

 

[tyr_13]

It could apply. I never said that it couldn't. The Constitution has been around for over 200 years, yet SCOTUS still looks at constitutional issues. Lawyers constantly make arguments about whether a particular decision should apply or not, and the justices themselves disagree on the applicability. When the facts of a case are different, that's often a reason for the court to revisit an issue. Sometimes they do it to affirm that the prior case indeed does apply. Sometimes they end up differentiating the new case from the prior case. That's just how it works.

As I have repeatedly stated, it's not cut and dried.

I don't think you understand; what legal reason would the facts of this case change a thing? We are speculating on an unwritten law of course, but I can't think of a legal reason.

Go read the history of immigration law.

Took a college level History course on post Civil War America already thanks.

It was basically a mess back then. At the time of that ruling that feds had just recently taken over citizenship from the states. It was a decade later that the precursor to INS was formed. There is also the issue of immigration versus visitors. The ruling which everybody cites was dealing with people permanently established: immigrants. Visitors are a different matter. Furthermore, there wasn't even a border patrol at that time.

Yet there were immigration laws. They weren't something that the court had never heard of and could not have considered. Furthermore the US Army conducted border control at the time.

You have seen arguments that they got it wrong. You can disagree with those arguments, but it's disingenuous to say they are not there. Two justices dissented in that opinion, so while the ruling stands, the fact is that two of the most trusted legal minds of the time disagreed.

Yes, what were their reasons? Have you or another poster brought them up in this thread?

If you consider it a derail, report it. I consider it thread drift.

Drift far enough and it's a derail. I can see why it's related, which is why I didn't and don't plan on reporting it. However I want to establish that any time someone doesn't want to address it it isn't 'running away' from the subject.

I don't know what American ideals you are referring to. I think one "ideal" is clearly demonstrated in the oath of naturalization:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...


So, think about this for a moment. We have a pregnant woman in this country legally (say on a visitor's visa). In order for her to become a citizen what does she have to do?

* She has to get a green card (it has its own requirement including quotas) and reside in the USA for five years.
* She has to reside in the jurisdiction in which she files for at least 3 months prior to the application.
* After the application she has to stay in the USA up until she's naturalized.
* She has to read and write English as well as have a basic understanding of history and civics.
* She has to be of "good moral character" and have supported the Constitution (no rabble rousers).

That speaks to the ideals Americans have about citizenship. I guess I'm missing the "ideal" Americans have that says, "If a baby exits a vagina on US soil (but not territories), it's a citizen." I would be in favor of granting citizenship to children of stateless parents - that speaks to an American ideal. Other countries do that, but they also recognize that children of parents who are not stateless become citizens of their parents' state.


You are literally arguing that Americans have an ideal that says if a woman who knows no English evades border patrol and makes it 10 feet into the USA before giving birth that we welcome that child as a citizen. Please describe that ideal.

I was more thinking of, "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

I understand that a poem by Emma Lazarus might not hold the same sway to you as the citizenship requirements, but it is classic American. Anyone can make something of themselves in the land of the free. We're the great melting pot and will embrace different origins. The ideal is that to be American, you just have to want to be.

Any other discussion of what a 'true American' is I don't really care to have.

 

[thaiboxerken]

Why don't they write the law to say what they really mean?

"We hate Mexicans, so they can't live in Arizona."

 

[Grizzly Adams]

My guess would be that it's because that's not what they really mean.

Pretty simple, really...

 

[Uncayimmy]

Why don't they write the law to say what they really mean?

"We hate Mexicans, so they can't live in Arizona."

Like Grizzly said, that's just not the case. I've lived in Phoenix for 10 years now, and I'm continually amazed at how people keep making this a brown versus white issue when it's really not.

 

[pipelineaudio]

Its telling just how many people are projecting their own racism when they speak about Arizona's problems and solutions

 

[cwalner]

Like Grizzly said, that's just not the case. I've lived in Phoenix for 10 years now, and I'm continually amazed at how people keep making this a brown versus white issue when it's really not.

Maybe not, but the 'solutions' so far proposed seem to put it in that framework. The ability for police to detain somebody and request proof of citizenship on 'reasonable suspicion' of being an illegal allows the officer to do just that, make it a brown vs white situation.

I grew up in the Southwest (So CA and NV) and am very familiar with the nuances of immigration policy. I am also aware that polls show that most Latinos legally residing in the us (either citizens or legal residents) are actually supportive of stricter immigration policies.

However, the law that AZ passed is too vague and open for misuse. In other words its just plain bad law.