Words of Advice:

"If Something Seems To Be Too Good To Be True, It's Best To Shoot It, Just In Case." -- Fiona Glenanne

"Flying the Airplane is More Important than Radioing Your Plight to a Person on the Ground
Who is Incapable of Understanding or Doing Anything About It." -- Unknown

“Never argue with stupid people, they will drag you down to their level
and then beat you with experience.” -- Mark Twain

"Stay Strapped or Get Clapped." -- probably not Mr. Rogers

"Eck!" -- George the Cat

Tuesday, October 30, 2018

Unconstitutional Trump

The first section of the Fourteenth Amendment:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If you are born in the U.S., you are a citizen. That is the plain language of the Constitution.

But Trump can't read and/or he is an imbecile.
President* Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for "Axios on HBO," a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.
...
"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States ... with all of those benefits," Trump continued. "It's ridiculous. It's ridiculous. And it has to end.
There is no "essentially" about it. That's what the Constitution says. If Trump tries this, when it gets to the Supremes, I guess we'll see how the conservative judges adhere to their proclaimed fealty to the plain language of the Constitution.

Also, he is outright lying that the United States is the only country in the world that has birthright citizenship. 87% of the nations in the Western Hemisphere do.

16 comments:

CenterPuke88 said...

Perhaps the first step to a larger goal? After all, the 14th covers pesky topics like the apportioning of representatives and the validly of public debt as well. Whip up the mob and push for a revision of the 14th, while they still have enough supporter alive and able to vote? Make it about “removing that old language about male and 21” to get the less educated to jump on board, not realizing much more is being “tweaked”?

Counter Jockey said...

And this is why, despite being like a caricature of his target demographic, the Cheeto makes me angry.

Eck! said...

IF not born here then how does one attain citizenship if that were the case?

The other is Borowitz [New Yorker] nailed it by juxtaposing trump passing a law that makes him a non citizen.

Interesting paradox

Eck!

CenterPuke88 said...

Eck! As I understand it, the other “standard” means of citizenship (parent(s), child of legal immigrants, etc.) would remain. The open question of “ex post facto” impact might get interesting, since the Constitution only prohibits this by Congress (A1.9) and the States (A1.10). However, since I find it highly unlikely that even Justice Thomas would uphold such an order, so it might be fun to see Donnie try this. My bet is less than 4 hours to the first injunction.

hjmler said...

as usual, he's managed to change the topic and stay center-stage... he's a genius at playing us

B said...

THe key is the interpretation of "Subject to the Jurisdiction thereof".

If one is a german citizen, say, then the clause excludes you in some interpretations. Because you are not "subject to the jurisdiction" of the US, but rather of Germany.
Or so goes the argument.

I'd hate to see anyone fiddle with our Constitution as it stands, although the Leftists have been nibbling at the edges for years (and they only like to protect the parts they admire, and not the ones that keep 'em from having their Socialist Utopia or gain more power), but I'd also like to see the whole "Anchor Babies" part go away.

Again, that is a slippery slope one is treading on.

And no, I don't think TheDonald can swing it. I actually hope he can't, really.

I think that the interpretation of "Jurisdiction thereof" needs to be adjudicated and defined clearly.
What did those words mean in 1868?

Kinda like the Leftists want to reinterpret the 2nd with "militia".

I'm agin' changing all of it. Can of worms once you start. It works, don't fuck with it.

CenterPuke88 said...

B., your interpretation has been positied often and refutiated. Here is a selection from Justia US Law, continued with your usually desired annotations on the next post:

Citizens of The United States

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

ANNOTATIONS

The citizenship provisions of the Fourteenth Amendment may be seen as a repudiation of one of the more politically divisive cases of the nineteenth century. Under common law, free persons born within a state or nation were citizens thereof. In the Dred Scott case,2 however, Chief Justice Taney, writing for the Court, ruled that this rule did not apply to freed slaves. The Court held that United States citizenship was enjoyed by only two classes of people: (1) white persons born in the United States as descendants of “persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, [and who] became also citizens of this new political body,” the United States of America, and (2) those who, having been “born outside the dominions of the United States,” had migrated thereto and been naturalized therein.3 Freed slaves fell into neither of these categories.

The Court further held that, although a state could confer state citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Thus, the “Negro,” as an enslaved race, was ineligible to attain United States citizenship, either from a state or by virtue of birth in the United States. Even a free man descended from a Negro residing as a free man in one of the states at the date of ratification of the Constitution was held ineligible for citizenship.4 Congress subsequently repudiated this concept of citizenship, first in section 15 of the Civil Rights Act of 18666 and then in section 1 of the Fourteenth Amendment. In doing so, Congress set aside the Dred Scott holding, and restored the traditional precepts of citizenship by birth.7

Based on the first sentence of section 1,8 the Court has held that a child born in the United States of Chinese parents who were ineligible to be naturalized themselves is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.9 The requirement that a person be “subject to the jurisdiction thereof,” however, excludes its application to children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation,10 or children of members of Indian tribes subject to tribal laws.11 In addition, the citizenship of children born on vessels in United States territorial waters or on the high seas has generally been held by the lower courts to be determined by the citizenship of the parents.12 Citizens of the United States within the meaning of this Amendment must be natural and not artificial persons; a corporate body is not a citizen of the United States.13...

CenterPuke88 said...

...In Afroyim v. Rusk,14 a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the government of the United States the power to expatriate United States citizens against their will for any reason. “[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.”15 In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of section 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship.16 Between these two decisions is a tension that should call forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.

2 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The controversy, political as well as constitutional, that this case stirred and still stirs is exemplified and analyzed in the material collected in S. Kutler, The Dred Scott Decision: Law Or Politics? (1967). See also Don E. Fehrenbacher, The Dred Scott Case: Its Significance In American Law And Politics (1978); M. Graber, Dred Scott And The Problem Of Constitutional Evil (2006); Earl M. Maltz, Dred Scott And The Politics Of Slavery (2007); Symposium, 150th Anniversary of the Dred Scott Decision, 82 CHI.-KENT L. REV. 1–455 (2007).

3 60 U.S. (19 How.) at 406, 418.

4 60 U.S. (19 How.) at 404–06, 417–18, 419–20 (1857).

5 The proposed amendment as it passed the House contained no such provision, and it was decided in the Senate to include language like that finally adopted. CONG. GLOBE, 39th Cong., 1st Sess. 2560, 2768–69, 2869 (1866). The sponsor of the language said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States.” Id. at 2890. The legislative history is discussed at some length in Afroyim v. Rusk, 387 U.S. 253, 282–86 (1967) (Justice Harlan dissenting).

6 “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right[s] . . . .” Ch. 31, 14 Stat. 27.

7 United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).

8 “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.”

9 United States v. Wong Kim Ark, 169 U.S. 649 (1898).

10 169 U.S. at 682 (these are recognized exceptions to the common-law rule of acquired citizenship by birth).

11 169 U.S. at 680–82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).

12 United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928)...

CenterPuke88 said...

...13 Insurance Co. v. New Orleans, 13 Fed. Cas. 67 (C.C.D. La. 1870). Not being citizens of the United States, corporations accordingly have been declared unable to claim the protection of that clause of the Fourteenth Amendment that secures the privileges and immunities of citizens of the United States against abridgment by state legislation. Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869). This conclusion was in harmony with the earlier holding in Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in Article IV, § 2. See also Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. v. Burley Growers’ Coop. Marketing Ass’n,, 276 U.S. 71, 89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).

14 387 U.S. 253 (1967). Though the Court had previously upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which the Court, by a five-to-four decision, upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress’s power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in acts of that citizen which might embarrass relations with a foreign nation. Id. at 60–62. Three of the dissenters denied that Congress had any power to denaturalize. See discussion of “Expatriation” under Article I, supra. In the years before Afroyim, a series of decisions had curbed congressional power.

15 Afroyim v. Rusk, 387 U.S. 253, 262–63 (1967). The Court went on to say, “It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted.” Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268.

16 Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision, with Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting.

B said...

I didn't say it was MY argument, only that that is the argument used .

I do think that if we had more secure borders we could solve most of the issues without screwing with the Constitution and laws derived therefrom.

If we had a border wall and other securing features then the issue would go away fairly rapidly, wouldn't it?

dinthebeast said...

"If we had a border wall and other securing features then the issue would go away fairly rapidly, wouldn't it?"

No, it would not. Like abortion, illegal immigration is only contentious because of its usefulness in winning elections. No-one with any sense cares about it in any other context.
You could post machine gun nests every hundred yards and a napalm moat and 1) people would still get in because there are airplanes, and 2) the Republicans would still find a way to scare the dimwitted into voting for them with it, so GOP immigration policy would still be functioning to the specifications of its design.
Kind of like the way actual border crossing has declined to less than a fifth of what it was in 2000, less than a quarter of what it was in 2006, and less than half of what it was in 2008, and somehow it is a crisis that we all need to be very afraid of.
Read that "Gosh, these mid-terms might take away the congressional majority that I'm using to avoid accountability for all of the sketchy stuff I did trying to get elected, time to turn up the fire under my voters to eleven."

-Doug in Oakland

Comrade Misfit said...

The “subject to the jurisdiction of the laws” exempts the children of foreign diplomats. If any other foreign national is in this country, they are subject to our laws.

This is Trump trying to get the focus back on him, by hook or by crook.

CenterPuke88 said...

Agreed, Doug. Border security is simply a red herring to disguise Donnie’s dog whistle. The border security is ultimately an economics issue, supply and demand. The U.S. needs cheap labor for agriculture and service businesses and can’t find enough legal residents to do it. The answer is either higher compensation, a legal guest worker program, or illegals, and we have voted with out wallets while businesses have calculated the opportunity costs as too low to worry about demanding a guest worker program.

What is even blinder is Donnie’s pulling foreign aid to Central America. A properly focused aid program to try to help raise the standard of living and criminal justice in these nations would help reduce the humanitarian flow (something that Donnie ignores, choosing to believe the flow is about only money or crime) and, as a bonus, provide a marketplace to our businesses. If you have a few rundown houses in the neighborhood, it reduces your property value, but if they get fixed up, guess what? We’ve never properly aimed our foreign aid in Central America on these long term goals and never spent enough aid either.

dinthebeast said...

And how was it again that Central America got so destabilized, anyway?

-Doug in Oakland

MarkS said...

Should have a pool on how many days after Nov. 6th this story lasts.

Comrade Misfit said...

Mark,

Trump is flinging poo against the wall to see what sticks.