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Forums - Politics Discussion - Trump Plans to Challenge the Constitutional Definition of Birthright Citizenship

coolbeans said:
Machiavellian said:

I thought this topic was interesting.  So President Trump has been making the news as we head into the mid-terms by stating he has the executive power to remove Birthright Citizenship using his pen.  Birthright Citizenship is part of the 14th Amendment to the constitution.  For people who are not part of the US, in order to make a change to the Constitution, you have to have 2/3rds of the house and Senate approval of the proposal and then it has to be sent to the states for a vote.  75 present of the states would need to vote yes for the amendment to be ratified.  The other way for a constitution change is to have a constitutional convention and 2/3rds of the states has to be present.  From there 3/4ths of the states would have to agree for any amendments.

My question, what are people thoughts on this current move by President Trump.

Well...the utilization of executive order has caused me to ask they same thing for virtually each president since the 2000's: how are EO's so liberally used?  Then again, considering that--like virtually all current immigration arguments--other branches of gov't have been kicking the can down the road since the 90's I understand the political effectiveness of kickstarting this topic.  

I'm also not really buying this false premise as though a new amendment has to be ratified to end Birthright Citizenship, especially when the language of key figures whom originally ratified it (EDIT: the 14th) have clarified on it:

"This will not, of course, include persons born in the US who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the gov't of US, but will include every other class of persons." (Sen. Jacob Howard)

From the context surrounding this Amendment (Dred Scott decision in particular) to "...and subject to the jurisdiction thereof..." part, it seems insane to think such a decision would also allow the newborns of pregnant illegal aliens playing Red Rover with a host country's Border Patrol to immediately be granted citizenship.  US reached this point from a few special cases touching on the subject and disingenuous stretches of its intentions, NOT on some highly-upheld principles that Beloved Leader is looking to sully with his fascism and such.

So, illegal aliens are basically similar to accredited diplomats and ambassadors?  In what way?  Would you say that a pregnant illegal alien is "subject to the jurisdiction" of the U.S.?  Can illegal aliens accused of other crimes claim diplomatic immunity? 



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NightlyPoe said:
SecondWar said:
https://www.independent.co.uk/news/world/americas/us-politics/migrant-caravan-trump-honduras-sue-immigration-border-class-action-lawsuit-a8615396.html

Curious what some people here think of this.

It's a series of talking points in the form of a lawsuit designed to get news articles and for people on the internet to talk about it.

In other words, you just fed the trolls.

Well it got you talking, so did it feed you?

I was more thinking along there lines off: hasn't there been previous SC rulings saying the constitution only applies to US citizens, so it can hardly apply to non-citizens outside of the US. Also Trump tends to ignore international conventions, so doubt he cares about the international law part.



coolbeans said:
Machiavellian said:

I thought this topic was interesting.  So President Trump has been making the news as we head into the mid-terms by stating he has the executive power to remove Birthright Citizenship using his pen.  Birthright Citizenship is part of the 14th Amendment to the constitution.  For people who are not part of the US, in order to make a change to the Constitution, you have to have 2/3rds of the house and Senate approval of the proposal and then it has to be sent to the states for a vote.  75 present of the states would need to vote yes for the amendment to be ratified.  The other way for a constitution change is to have a constitutional convention and 2/3rds of the states has to be present.  From there 3/4ths of the states would have to agree for any amendments.

My question, what are people thoughts on this current move by President Trump.

Well...the utilization of executive order has caused me to ask they same thing for virtually each president since the 2000's: how are EO's so liberally used?  Then again, considering that--like virtually all current immigration arguments--other branches of gov't have been kicking the can down the road since the 90's I understand the political effectiveness of kickstarting this topic.  

I'm also not really buying this false premise as though a new amendment has to be ratified to end Birthright Citizenship, especially when the language of key figures whom originally ratified it (EDIT: the 14th) have clarified on it:

"This will not, of course, include persons born in the US who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the gov't of US, but will include every other class of persons." (Sen. Jacob Howard)

From the context surrounding this Amendment (Dred Scott decision in particular) to "...and subject to the jurisdiction thereof..." part, it seems insane to think such a decision would also allow the newborns of pregnant illegal aliens playing Red Rover with a host country's Border Patrol to immediately be granted citizenship.  US reached this point from a few special cases touching on the subject and disingenuous stretches of its intentions, NOT on some highly-upheld principles that Beloved Leader is looking to sully with his fascism and such.

The argument in question saying is that one clause  "and subject to the jurisdiction thereof".  Not sure why this seems to be the one clause that people use because if that is the case how is it that the US government can prosecute illegal immigrants in the US.  As the other side has argued, you cannot use the intent of the person who wrote the amendment, only the words and their meaning.  If we go down that route then the 2nd amendment goes into play as well.  At the end of the day, it has already been argued who is and isn't subject to the jurisdiction of the US and that are diplomats and Indians on reservations.  You cannot prosecute them on US soil but instead send them back to their country or reservation.

If people actually want the words of the 14th to be more clear then should it not go through the same process we have used for years.  



coolbeans said:
Final-Fan said:

So, illegal aliens are basically similar to accredited diplomats and ambassadors?  In what way?  Would you say that a pregnant illegal alien is "subject to the jurisdiction" of the U.S.?  Can illegal aliens accused of other crimes claim diplomatic immunity? 

What you're doing here is tantamount to Gish Galloping.  The Howard quote I brought up is pretty clear in delineating this:

-they're different in respect to situation and standing

-they're similar in that they don't fall under the "...subject to the jurisdiction thereof..." clause of the 14th (as Congress originally framed)

Obviously, the next logical question would bring up the implications with crime.  But the emphasis on "jurisdiction" isn't limiting itself to geographical location, but rather total jurisdiction in respect to location, total allegiance (as some Congressmen framed it), and being wholly subject to the nation's laws.  Initially, many Native American tribes (some referenced during the ratifying of this amendment) didn't fall under the 14th either, though this changed in the early 1900's via Congress + Presidential signing.  Actually, the procedure in which Natives Americans went from outside the citizenship clause to inside via simple legislative majority + executive authorization destroys OP's assessment that a new amendment is needed.  

Anyways...you see how this comes back around, right?  Illegals wouldn't fall under the "[total] jurisdiction" of US based on conflicted political allegiances (as how those framers assessed it).  And if they sincerely wanted to legally pledge US allegiance and go the whole nine yards, well...we have a naturalization process and there's millions of said people in line who didn't decide to violate federal laws of their new-host country.   

The problem with everything you just said is that no where in the constitution did it stipulate 'Total jurisdiction".  Also we are still talking about the CHILD born on US soil not the parents.  You are confusing the 2 situations and totally ignoring the differences.  Even the Indian act gives a Native Indian US citizenship if born on US soil, not a reservation.  Even if Trump wanted to take away birthright Citizenship he would still need to go through congress whether you believe congress can just make a bill and have it signed by the president it still doesn't give him rights to do this based on an executive order.

Also there is a big whole in your claim using Native Americans.  Congress did make all native Americans US citizens but that did not touch on the 14th amendment at all.  They did not change the wording or interpreted the constitution but instead gave them citizenship because of the 14th amendment they were not subject to the jurisdiction of the US.  If anything you just actually killed your argument instead of supported it.



coolbeans said:
Final-Fan said:

So, illegal aliens are basically similar to accredited diplomats and ambassadors?  In what way?  Would you say that a pregnant illegal alien is "subject to the jurisdiction" of the U.S.?  Can illegal aliens accused of other crimes claim diplomatic immunity? 

What you're doing here is tantamount to Gish Galloping.  The Howard quote I brought up is pretty clear in delineating this:

-they're different in respect to situation and standing

-they're similar in that they don't fall under the "...subject to the jurisdiction thereof..." clause of the 14th (as Congress originally framed)

Obviously, the next logical question would bring up the implications with crime.  But the emphasis on "jurisdiction" isn't limiting itself to geographical location, but rather total jurisdiction in respect to location, total allegiance (as some Congressmen framed it), and being wholly subject to the nation's laws.  Initially, many Native American tribes (some referenced during the ratifying of this amendment) didn't fall under the 14th either, though this changed in the early 1900's via Congress + Presidential signing.  Actually, the procedure in which Natives Americans went from outside the citizenship clause to inside via simple legislative majority + executive authorization destroys OP's assessment that a new amendment is needed.  

Anyways...you see how this comes back around, right?  Illegals wouldn't fall under the "[total] jurisdiction" of US based on conflicted political allegiances (as how those framers assessed it).  And if they sincerely wanted to legally pledge US allegiance and go the whole nine yards, well...we have a naturalization process and there's millions of said people in line who didn't decide to violate federal laws of their new-host country.   

1.  The Gish Gallop accusation is inane at best.  I asked four total questions, which on even cursory examination are two pairs of questions (the pairs being related questions illustrating my thoughts on the same subject).  (One:  Similar to diplomats?  If so, how? ... Two:  illegals "subject..."?  If not, diplomatic immunity?)

2.  "This will not, of course, include persons born in the US who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the gov't of US, but will include every other class of persons." (Sen. Jacob Howard)

I don't see your clear delineation of situation and standing as pertains to illegal immigrants.  "foreigners, aliens, who belong to families of ambassadors etc." is, upon careful reading, clearly not a list of three things, but instead is revealed to be a single thing with what is called a parenthetical comma, as demostrated here, situated inside of it.  If it was a list, there would be an "and" somewhere, but there is no "and" in the entire Howard quote that you gave.  Additionally, "who belong to" would be a nonsensical fragment if it was a list, but it makes perfect sense when read as referring to "foreigners, [in other words] aliens, who belong to..."

So I read the Howard quote as saying, "This will not, of course, include persons born in the US who are foreigners (aliens) who belong to families of ambassadors or foreign ministers accredited to the gov't of US, but will include every other class of persons."  Please let me know if you disagree with the validity and substantial accuracy of this reading. 

Given that you accept the above interpretation, the question becomes, "Is there any sensible definition of "foreigners who belong to families of ambassadors or foreign ministers accredited to the gov't of US" that would include illegal immigrants in general?"  I put it to you that there is not.  Do you say that there is?  If so, what is your argument? 

(The two immediately preceding questions are to be read as a single two-part question and do not constitute a Gish Gallop in any sensible definition of the term.  As for the one inside quotation marks, I am not asking you that question.  I am saying that it could be said that the discussion we are having can now be encapsulated in that question.  Let me know if you disagree with that assessment even after granting, for the sake of argument, the condition that you accept the aforementioned interpretation of the Howard quote.) 

3.  I don't see American Indians as being closely analogous enough to illegal immigrants to make your comparison valid.  I haven't done lots of research on the topic with this specific subject in mind but I have a fair amount of lay knowledge here and Indians have a long legal history of being held separate from the general population in a way that is simply not true of immigrants.  The reservation system may have been rife with abuses but the concept is still that of a people and land held apart from the regular United States.  For example, Wikipedia sez "Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States. The U.S. federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments."  I think you'd agree that illegal immigrants have no legal authority to "govern themselves" and are not considered part of "domestic dependent nations". 

Again I disclaim professional expertise, but I would surmise that the situation with American Indians is similar to that of unincorporated territories of the United States, which I do not believe the 14th amendment applies to.  Puerto Rico is arguably still unincorporated, but Puerto Ricans were given citizenship by act of Congress (and presumably not the 14th amendment).  The bottom line is that the comparison is not close enough to say the same logic can be applied (that as citizenship was granted to one, it can be taken away from the other).  Illegal immigrants are, generally speaking, not giving birth in unincorporated territories. 



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coolbeans said:
Machiavellian said:

The argument in question saying is that one clause  "and subject to the jurisdiction thereof".  Not sure why this seems to be the one clause that people use because if that is the case how is it that the US government can prosecute illegal immigrants in the US.  As the other side has argued, you cannot use the intent of the person who wrote the amendment, only the words and their meaning.  If we go down that route then the 2nd amendment goes into play as well.  At the end of the day, it has already been argued who is and isn't subject to the jurisdiction of the US and that are diplomats and Indians on reservations.  You cannot prosecute them on US soil but instead send them back to their country or reservation.

If people actually want the words of the 14th to be more clear then should it not go through the same process we have used for years.  

So, there's a lot to dissect between these two quotes that's wrong but I'm having trouble squishing down in html to one big post (really bad at tech stuff).  Initially, I had my thoughts focused on this one before I noticed the next quote which has some overlap here.  Anyways...

As brought up with other poster, the idea of jurisdiction isn't limited to geographical location in respect to the protections of the 14th.  Well, if that's what the "other side" is arguing then they're providing an argument that's disingenuous and self-contradictory.  The very notion of ONLY examining an amendment's words & intent already begs the question: what were the ratifiers' intentions?  In order to answer that, any intellectually-honest person would investigate both their lawmakers' use of vernacular and surrounding context.  Which is what makes you referencing the 2nd amendment quite humorous & applicable.  

-"If we go down that route then the 2nd amendment goes into play as well. "

You mean like it has several times before?  DC vs. Heller case is not that old.  And judging by the "muh Constitution (when convenient)"  outrage over this found here & elsewhere, it seems like "and subject to the jurisdiction thereof" is about as widely misunderstood as "A well-regulated militia...," your following sentences seem to be proof of that.  

-"If people actually want the words of the 14th to be more clear then should it not go through the same process we have used for years. "

Except they are pretty clear but have been misapplied.  That's the crux of people's unreason here: demanding Beloved Leader & cohorts go through the most rigorous law-making process of the US for a policy--not a constitutional law--that never had to do the same.  And my support for this argument comes from the language of the 14th, the historical context surrounding it, AND the clear-stated intentions of the ratifiers themselves (of which I have more quotes if necessary).


Machiavellian said:

The problem with everything you just said is that no where in the constitution did it stipulate 'Total jurisdiction".  Also we are still talking about the CHILD born on US soil not the parents.  You are confusing the 2 situations and totally ignoring the differences.  Even the Indian act gives a Native Indian US citizenship if born on US soil, not a reservation.  Even if Trump wanted to take away birthright Citizenship he would still need to go through congress whether you believe congress can just make a bill and have it signed by the president it still doesn't give him rights to do this based on an executive order.

Also there is a big whole in your claim using Native Americans.  Congress did make all native Americans US citizens but that did not touch on the 14th amendment at all.  They did not change the wording or interpreted the constitution but instead gave them citizenship because of the 14th amendment they were not subject to the jurisdiction of the US.  If anything you just actually killed your argument instead of supported it.

Except that's not a problem b/c the addition of an adjective, specifically used by another Senator btw, doesn't negate what I'm emphasizing.  By this same illogic, your argument is in tatters b/c nowhere in the 14th does it say "geographical jurisdiction."  Why does it say neither of those two adjectives?  Well, there's an argument to be made mine's more applicable simply b/c what defines "jurisdiction" is multilayered already.  I mean...I've been following that we're talking THE CHILD here; the idea of allegiances/jurisdiction should still apply here.  The only reason they've popped out on US soil is b/c their mother violated federal law (which taints the notion they're allowed citizenship to begin with).  Comparing that to Native American children born outside a reservation is a false equivalence b/c natives still get freedom of movement within US borders.  Remind me who's confusing 2 situations and totally ignoring the differences.  

So, I'm not 100% committed to agreeing with you on this.  Because of Article II, I wouldn't surprised to see an approach to the judiciary being the result.

So...there's some alarm bells going off with this tactic here.  You presenting a twisted through-line in this part whilst not acknowledging how much of the OP is killed given this information, for one.  "This dynamite I'm laying beneath my feet will totally destroy you!"  Two, giving Indians citizenship "b/c of the 14th they were not subject to the jurisdiction of the US" is a mischaracterization of the storied history of how Native Americans gained US citizenship since the 14th was ratified.  Also, it's not outside the bounds of Congress to make new laws defining which previously excluded groups can now be considered "subject to the jurisdiction thereof."  The problem?  The concept of Birthright Citizenship hasn't gone through such a process.  Seeing a terrible lack of argument-killing here.

Everything still boils down to the President cannot by Executive Order remove birthright citizenship.  We can argue sematics all day long but there is no precedent of a President being able to do this and at best it would need to go to Congress.  If Congress wants to intrepid the wording of the 14th amendment without actually amending it then it would need to go to the Supreme Court.  Even your last paragraph supports exactly the main topic.  It still needs to go to Congress and it still needs to adhere to the constitution.  So out of all your text.  Where exactly does it show that the President can use an Executive order to go against the 14th amendment.  



I just wanted to say, I heard someone saying they'll defend anythung on the constitution religiously, We were talking about the 2nd amendment of course. I would like him or someone of a similar view on this matter.
Disclaimer: This is regarding specific people who are citizens of the US. This is not flaming not is it generalization, I have been banned for that while talking about the US government and army and the reason given was over generalization of a population. I am not doing that here. Just to make this clear I am not talking about all of the US population. This is for specific people who believe that, not the entire US population. I repeat not for the entire US population, My intent is not to flame anyone. I repeat again I am not trying to flame.
P,S: Apparently this is the sage advice the mods gave me when talking about anything related to the US. Since I "over generalized" in the past regarding them and that's apparently a big no no, So just to be safe I will do this everyone I talk about the US. I know the mods are watching me



Just a guy who doesn't want to be bored. Also

NightlyPoe said:
Machiavellian said:

As the other side has argued, you cannot use the intent of the person who wrote the amendment, only the words and their meaning.  If we go down that route then the 2nd amendment goes into play as well.

I don't think you understand the basics of Originalism.  Focusing on the intent of the authors and what the words meant at the time they were written is the backbone of the philosophy.

I would suppose he was talking about Textualism. 



Tag (courtesy of fkusumot): "Please feel free -- nay, I encourage you -- to offer rebuttal."
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NightlyPoe said:
Machiavellian said:

As the other side has argued, you cannot use the intent of the person who wrote the amendment, only the words and their meaning.  If we go down that route then the 2nd amendment goes into play as well.

I don't think you understand the basics of Originalism.  Focusing on the intent of the authors and what the words meant at the time they were written is the backbone of the philosophy.

The thing about intent is that it changes with different groups interpretation.  This is probably why the courts try to stick to the words instead of intent because usually it's just another opinion.  Contracts are done this way all the time.



NightlyPoe said:
Machiavellian said:

The thing about intent is that it changes with different groups interpretation.  This is probably why the courts try to stick to the words instead of intent because usually it's just another opinion.  Contracts are done this way all the time.

Again, you are misunderstanding Originalism.  Its goal is to understand the meaning of the words and intent when they wrote them.  It's not to bale out legislatures when they write sloppy statutes.

The goal is to limit the different interpretations via attempting to figure out what they would have meant at the time.  To take one challenging term from the Constitution, that isn't quite as strongly debated at the moment.  Impeachment is said be reserved for "High Crimes and Misdemeanors."  Well, what does that mean?  To a modern audience, it would sound like a rather high bar.  "High" being the operative word.  You might think that it means major crimes.

But to the people who wrote it, the word "high" referred to the person committing the crime.  It basically meant a breach of public trust in some manner and how a person in such a "high" position of power has special duties to carry out his charge faithfully.  Therefore, to the Framers (George Mason to be exact), the term High Crimes and Misdemeanors would have lowered the bar for impeachment.

So, while the words can be interpreted  either way by a reasonable observer, the origininalist judge will try and discover the meaning of the interpretation at the time it was written and how it would have been believed to have been commonly used at the time.

Incidentally, I'll also add that Scalia led a very successful campaign to dissuade his colleagues from using legislative history in their opinions.  In other words, Scalia very much relied on the text first and foremost.

Actually it can be. There is a part in the Immigration and Nationality act that interchangeably uses "3 months" and "90 days", despite the two terms not being interchangeable. When one of the courts looked at it, they then had to go back through the legislative history to clear up the ambiguity.

 

Which is the main point I want to make here. There is a difference between statutory interpretation and constitutional interpretation. Using those interchangeably is not correct. There is a "process" courts follow in how they interpret statutes. Actually, Machiavellian's comment about contracts is really on point for that. When interpreting a contract, the court is only supposed to look to the "four corners" of the contract. However, if there is an ambiguity, they are allowed to look at parole evidence which would normally be inadmissible as a rule of evidence. Statutory interpretation is similar in that if the plain language of the statute says something, it matters little to what the intent was. Courts will only look at intent (along with other things) if there is ambiguity. This is a balance of powers issue and why courts interpret statutes in this fashion. 

 

Don't really want to get into constitutional interpretation though. It's not black and white and I think pinning judges to certain theories is dishonest to the actual process. Not saying you are doing that though, just a thought.