Trump Is Right About Birth Citizenship

[piezoe]

Just to go on record here, I don't see how anyone can have confidence in how the Court would rule were they asked, today, to adjudicate the 14th Amendment citizenship section, i.e., the section that reads '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...' The Court might well fall back on stare decisis.

Anyone looking at the issue dispassionately, as say from the perspective of someone living on Mars, would have to rule that the 14th does not confer citizenship upon anyone born to parents illegally here. However, what about a child born to non-citizen, non-diplomat parents, but legally present in the United States? A child born to one parent, a citizen, the other here illegally? Or any of the other various permutations to be considered.

But those are minor issues compared to the reality the Court would face. There are children born to parents here illegally, and those children have lived all their lives in the U.S., graduated from U.S. schools and are culturally as "American" as any child born to U.S. citizens. There is strong majority sentiment in favor of letting them remain in the U.S. as long as they embark on a path to citizenship. [That's what the bipartisan Dream Act was about.]

Asking the court to adjudicate this issue is a dangerous path to go down, both for the Court and for U.S. Citizens. Would the court fall back on stare decisis or would they rule from the perspective of planet Mars. Who can know? The best and least dangerous solution, from a political perspective, is to let sleeping dogs lie, and for Congress to pass the Dream Act, finally!, and in the meantime tighten up he border. The Dream Act would certainly not be a prima facie violation of the 14th, and passing it would not be impossible were there a well functioning Congress. There isn't, and in any case no such legislation will be passed in the midst of a highly partisan, populist oriented election campaign.

If Mr. Trump persists, he'll get close to zero Latina and Latino votes. Is he serious? We will know soon enough. He better be very clear, because if he leaves any wiggle room at all in his position, it will only be interpreted one way by his opposition. He has painted himself into a corner, let's see if he can get out of the room without stepping in it.

 

[piezoe]

I am not surprised you have a leftist approach to interpretation of the constitution law.

However...

https://en.wikipedia.org/wiki/Originalism


Bret Boyce described the origins of the term originalist as follows: The term "originalism" has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding.[1] It is often asserted that originalism is synonymous with strict constructionism.[5][6][7][8]


Supreme Court Justice Antonin Scalia is a firm believer in originalism
Both theories are associated with textualist and formalist schools of thought, but there are pronounced differences between them. Justice Scalia differentiates the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means).[9] Scalia has averred that he is "not a strict constructionist, and no-one ought to be"; he goes further, calling strict constructionism "a degraded form of textualism that brings the whole philosophy into disrepute".[10]

Originalism is a theory of interpretation, not construction.[11] However, this distinction between "interpretation" and "construction" is controversial and is rejected by many nonoriginalists as artificial. As Scalia has said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably"; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—but the business of Judging is not simply to know what the text means (interpretation), but to take the law's necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist and a strict constructionist—but he is not one by virtue of being the other.

To put the difference more explicitly, both schools take the plain meaning of the text as their starting point, but have different approaches that can best be illustrated with a fictitious example.

Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be "subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad". A strict constructionist might interpret that clause to mean that the specific punishments mentioned above were unconstitutional, but that other forms of capital punishment were permissible. For a strict constructionist, the specific, strict reading of the text is the beginning and end of the inquiry.

For an originalist, however, the text is the beginning of the inquiry, and two originalists might reach very different results, not only from the strict constructionist, but from each other. "Originalists can reach different results in the same case" (see What originalism is not—originalism is not always an answer in and of itself, infra); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the only forms of capital punishment in use at that time, and the only forms of capital punishment that had ever been used at the time of ratification. An originalist might therefore conclude that capital punishment in general, including those methods for it invented since ratification, such as the electric chair, are not constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the authors intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution are constitutional.

Note that originalists would agree that, if the original meaning of the text could be ascertained, that meaning governs. Where they disagree, as in this example, is about exactly how to find that meaning. For example, any originalist or even a strict constructionist might apply the canon of construction expressio unius est exclusio alterius, which presumes that when an author includes one example he intends to exclude others. If that canon is appropriate in the example here, all originalist interpreters would likely reach the same result. Contrast this with a "living constitutional" interpretation, which might find that, although the text itself only prohibits certain methods, those methods are examples of particularly unpleasant methods of execution; therefore, the text invites modern readers to extend its principle to those forms of punishment we now find particularly unpleasant.

Thank you so much, Jem. I stand suitably corrected, and from now on remind me to refer to our friend Mr. Scalia, as a strict "originalist", which he pretends to be, but certainly isn't whenever it does not serve his purpose. Tee Hee..

I have clearly been guilty of confounding those two related, by different descriptors in my mind, and most likely because Scalia was misquoted by the press at some point. Scalia is one of my favorites because his are the only opinions I can read later than noon without dosing off. (He must have very clever clerks) He is also the most fun to criticize, and certainly gives us the greatest opportunities to do so. After the most recent O'Romney care fiasco, I wish I'd had the good sense to send him a grocery bag.

 

[fhl]

If Mr. Trump persists, he'll get close to zero Latina and Latino votes. Is he serious? We will know soon enough. He better be very clear, because if he leaves any wiggle room at all in his position, it will only be interpreted one way by his opposition. He has painted himself into a corner, let's see if he can get out of the room without stepping in it.

No. There is a fundamental principal that most every culture and ethnicity subscribes to. And that is..... close the door behind me.

Hispanics that are already citizens are not going to vote en mass against Trump. Only illegals will vote en mass against him....if the democrats have anything to say about voter id laws.

 

[der_kommissar]

If Mr. Trump persists, he'll get close to zero Latina and Latino votes. Is he serious? We will know soon enough. He better be very clear, because if he leaves any wiggle room at all in his position, it will only be interpreted one way by his opposition. He has painted himself into a corner, let's see if he can get out of the room without stepping in it.

You do realize that those Hispanic immigrants who went thru the legal channels for citizenship are not on board with mass amnesty? The ambiguities of the citizenship process and all of the politico false promises has made this far more complex than you grasp. By taking a very clear position, he can guarantee some Latino support as opposed to all of the other GOP candidates that throw around a few soundbites and then forget the entire issue once elected. Let's also be clear that neither side of the aisle "owns" this issue...

 

[jem]

so far on this subject we are seeing a lot of words, but no substance.
I am glad you take more pride your agw analysis. Maybe you should read Scalia before noon but after your first cup of coffee and then compare him to say... anyone else on this court save maybe Kennedy.

If you are looking for thoughtful content from the left... it will probably take you a couple minutes.

Thank you so much, Jem. I stand suitably corrected, and from now on remind me to refer to our friend Mr. Scalia, as a strict "originalist", which he pretends to be, but certainly isn't whenever it does not serve his purpose. Tee Hee..

I have clearly been guilty of confounding those two related, by different descriptors in my mind, and most likely because Scalia was misquoted by the press at some point. Scalia is one of my favorites because his are the only opinions I can read later than noon without dosing off. (He must have very clever clerks) He is also the most fun to criticize, and certainly gives us the greatest opportunities to do so. After the most recent O'Romney care fiasco, I wish I'd had the good sense to send him a grocery bag.

 

[stu]

Illegals are not "under the jurisdiction" of the country any more than soldiers in an invading army are.

It's the parents who are the illegals. The child is not illegal for being born on US soil and is under the "jurisdiction thereof". They are born in US territory within which, US legal power can be exercised upon them, just like every other new born.

Furthermore, all children at birth are not soldiers and do not owe allegiance to anyone else. So that's no reason to deny citizenship. The only exception as far as I can see are those born on territory within the US declared foreign by the US, such as Embassies.

 

[stu]

Just to go on record here, I don't see how anyone can have confidence in how the Court would rule were they asked, today, to adjudicate the 14th Amendment citizenship section, i.e., the section that reads '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...' The Court might well fall back on stare decisis.

Anyone looking at the issue dispassionately, as say from the perspective of someone living on Mars, would have to rule that the 14th does not confer citizenship upon anyone born to parents illegally here. However, what about a child born to non-citizen, non-diplomat parents, but legally present in the United States? A child born to one parent, a citizen, the other here illegally? Or any of the other various permutations to be considered.

But those are minor issues compared to the reality the Court would face. There are children born to parents here illegally, and those children have lived all their lives in the U.S., graduated from U.S. schools and are culturally as "American" as any child born to U.S. citizens. There is strong majority sentiment in favor of letting them remain in the U.S. as long as they embark on a path to citizenship. [That's what the bipartisan Dream Act was about.]

Asking the court to adjudicate this issue is a dangerous path to go down, both for the Court and for U.S. Citizens. Would the court fall back on stare decisis or would they rule from the perspective of planet Mars. Who can know? The best and least dangerous solution, from a political perspective, is to let sleeping dogs lie, and for Congress to pass the Dream Act, finally!, and in the meantime tighten up he border. The Dream Act would certainly not be a prima facie violation of the 14th, and passing it would not be impossible were there a well functioning Congress. There isn't, and in any case no such legislation will be passed in the midst of a highly partisan, populist oriented election campaign.

If Mr. Trump persists, he'll get close to zero Latina and Latino votes. Is he serious? We will know soon enough. He better be very clear, because if he leaves any wiggle room at all in his position, it will only be interpreted one way by his opposition. He has painted himself into a corner, let's see if he can get out of the room without stepping in it.

V Good points piezo and well put.
But the 14th clearly says "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...''

The 14th does not say... "All persons born to parents residing legally ....'

All the Court need do surely, is follow the 14th.

Anyone looking at the issue dispassionately, as say from the perspective of someone living on Mars, would have to rule that the 14th does not confer citizenship upon anyone born to parents illegally here.

Yes it does confer citizenship to anyone born here, whether to parents here legally or illegally and does so unambiguously.

"All persons..." piezo! Although he doesn't speak it, Jem requires.. "the language as written".

 

[piezoe]

You're right, of course, about what it says. And GWB is right of course about the citizenship clause being insane. And I'm right about the risks of challenging the 14th in Court. We can be certain of one thing, and that is how you would rule were you on the Court.

 

[Arnie]

V Good points piezo and well put.
But the 14th clearly says "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...''

The 14th does not say... "All persons born to parents residing legally ....'

All the Court need do surely, is follow the 14th.



Yes it does confer citizenship to anyone born here, whether to parents here legally or illegally and does so unambiguously.

"All persons..." piezo! Although he doesn't speak it, Jem requires.. "the language as written".

You are simply wrong...

http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/

http://www.14thamendment.us/articles/anchor_babies_unconstitutionality.html

 

[loyek590]

You're right, of course, about what it says. And GWB is right of course about the citizenship clause being insane. And I'm right about the risks of challenging the 14th in Court. We can be certain of one thing, and that is how you would rule were you on the Court.

what was it the old guy in Fiddler on the Roof said? "You're both right!"