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Birthright citizenship - OptimisticOwl - 01-27-2025 09:15 AM
intent
The first time the nation’s highest court opined on the meaning of the Citizenship Clause — in the famous Slaughter-House cases of 1872 — it stated that the phrase "subject to the jurisdiction thereof" excluded "children of ministers, consuls, and citizens or subjects of foreign States born within the United States."
The Court confirmed this understanding in 1884 in Elk v. Wilkins, denying birthright citizenship to an American Indian because he "owed immediate allegiance to" his tribe and not the United States.
Most legal arguments for universal birthright citizenship ignore these early cases and point to the 1898 decision U.S. v. Wong Kim Ark. However, that decision simply held that U.S.-born children of lawful permanent residents are U.S. citizens.
RE: Birthright citizenship - Hambone10 - 01-27-2025 10:22 AM
recently heard it articulated by Vance... that this is not about a blanket removal of birthright citizenship (though I'm sure that won't stop some talking heads from claiming otherwise) but is instead designed to eliminate 'exceptions'... as in the diplomat's child... the illegal alien... the person who is here 'for a visit' and plans to return to their home country. .. consistent with your argument here
RE: Birthright citizenship - MOBalum - 01-27-2025 10:38 AM
Diplomats have immunity; they are not subject to the jurisdiction of US law. Neither were Native Americans at the time.
If illegal immigrants are not to be subject to the jurisdiction of US law, things will be very different.
RE: Birthright citizenship - OptimisticOwl - 01-27-2025 10:44 AM
(01-27-2025 10:22 AM)Hambone10 Wrote: recently heard it articulated by Vance... that this is not about a blanket removal of birthright citizenship (though I'm sure that won't stop some talking heads from claiming otherwise) but is instead designed to eliminate 'exceptions'... as in the diplomat's child... the illegal alien... the person who is here 'for a visit' and plans to return to their home country. .. consistent with your argument here
Not "my" argument, although I am in favor of eliminating automatic birthright citizenship, since it is being abused. I think it enough to have at least one American citizen parent, regardless of location of birth. Worked for Obama.
My mother was shopping in Mexico the day she went into labor. If the lines to cross back were as long then as they are now, I might have dual citizenship.
RE: Birthright citizenship - Hambone10 - 01-27-2025 11:14 AM
(01-27-2025 10:38 AM)MOBalum Wrote: Diplomats have immunity; they are not subject to the jurisdiction of US law. Neither were Native Americans at the time.
If illegal immigrants are not to be subject to the jurisdiction of US law, things will be very different.
Citizenship is not solely about being subject to our laws. There are also obligations that go along with it. Diplomats who break US laws CAN BE barred from remaining in the country. We can't prosecute them here perhaps, but we also don't have to allow them to remain here.... so they are STILL at least somewhat subject to at least some of our laws.
Entering the country illegally is a crime... we may not be able to incarcerate them here for that crime, but we CAN revoke any right they have to be here and return them to their country of origin.... as we can for diplomats.
This is part of the 'game' of ignoring the initial crime... Democrats have MADE illegal aliens 'subject to our jurisdiction' and thus they arguably qualify under the 14th... but as illegal inhabitants/invaders... they arguably would not.
RE: Birthright citizenship - Frizzy Owl - 01-27-2025 11:18 AM
(01-27-2025 11:14 AM)Hambone10 Wrote:(01-27-2025 10:38 AM)MOBalum Wrote: Diplomats have immunity; they are not subject to the jurisdiction of US law. Neither were Native Americans at the time.
If illegal immigrants are not to be subject to the jurisdiction of US law, things will be very different.
Citizenship is not solely about being subject to our laws. There are also obligations that go along with it. Diplomats who break US laws CAN BE barred from remaining in the country. We can't prosecute them here perhaps, but we also don't have to allow them to remain here.... so they are STILL at least somewhat subject to at least some of our laws.
Entering the country illegally is a crime... we may not be able to incarcerate them here for that crime, but we CAN revoke any right they have to be here and return them to their country of origin.... as we can for diplomats.
This is part of the 'game' of ignoring the initial crime... Democrats have MADE illegal aliens 'subject to our jurisdiction' and thus they arguably qualify under the 14th... but as illegal inhabitants/invaders... they would not.
Illegal immigrants have always been subject to our jurisdiction. What form of immunity to they enjoy? Where is it enumerated?
RE: Birthright citizenship - OptimisticOwl - 01-27-2025 11:31 AM
(01-27-2025 10:38 AM)MOBalum Wrote: Diplomats have immunity; they are not subject to the jurisdiction of US law. Neither were Native Americans at the time.
If illegal immigrants are not to be subject to the jurisdiction of US law, things will be very different.
So, if at one point AFTER the adoption of the 14th amendment, Native Americans were not citizens despite being born here, what does that say about birthright citizenship? That it is not a birthright?
I don't think being subject to our laws has any defining force on this question. Are not foreign terrorists and members of organized crime subject to our laws while on our soil?
RE: Birthright citizenship - Frizzy Owl - 01-27-2025 11:40 AM
(01-27-2025 11:31 AM)OptimisticOwl Wrote:They weren't born "here", they were born on reservations.(01-27-2025 10:38 AM)MOBalum Wrote: Diplomats have immunity; they are not subject to the jurisdiction of US law. Neither were Native Americans at the time.
If illegal immigrants are not to be subject to the jurisdiction of US law, things will be very different.
So, if at one point AFTER the adoption of the 14th amendment, Native Americans were not citizens despite being born here, what does that say about birthright citizenship? That it is not a birthright?
Quote:I don't think being subject to our laws has any defining force on this question.
Umm... it's the key definition in the amendment. If it had no defining force we wouldn't be having this conversation.
Quote:Are not foreign terrorists and members of organized crime subject to our laws while on our soil?Yes, of course.
RE: Birthright citizenship - OptimisticOwl - 01-27-2025 11:49 AM
(01-27-2025 11:40 AM)Frizzy Owl Wrote: They weren't born "here", they were born on reservations.
Wowza. Every single one of them? What happens to the ones born off the reservation?
I must admit, I am unclear on when, where and how tribal jurisdiction differs from state or federal jurisdiction. When I travel to Oklahoma to play at the Indian casinos there, the speed limits right up to the casino are enforced by Oklahoma State Troopers or local law enforcement. The drugs in the drug stores there are governed by the FDA. The medical doctors are licensed by the state. I have to pay OKLA state tax on winnings over certain amounts, and report them on my 1040. But if I get rowdy and thrown out of the casino, I am subject to a tribal court.
RE: Birthright citizenship - Hambone10 - 01-27-2025 11:55 AM
(01-27-2025 11:18 AM)Frizzy Owl Wrote:(01-27-2025 11:14 AM)Hambone10 Wrote:(01-27-2025 10:38 AM)MOBalum Wrote: Diplomats have immunity; they are not subject to the jurisdiction of US law. Neither were Native Americans at the time.
If illegal immigrants are not to be subject to the jurisdiction of US law, things will be very different.
Citizenship is not solely about being subject to our laws. There are also obligations that go along with it. Diplomats who break US laws CAN BE barred from remaining in the country. We can't prosecute them here perhaps, but we also don't have to allow them to remain here.... so they are STILL at least somewhat subject to at least some of our laws.
Entering the country illegally is a crime... we may not be able to incarcerate them here for that crime, but we CAN revoke any right they have to be here and return them to their country of origin.... as we can for diplomats.
This is part of the 'game' of ignoring the initial crime... Democrats have MADE illegal aliens 'subject to our jurisdiction' and thus they arguably qualify under the 14th... but as illegal inhabitants/invaders... they would not.
Illegal immigrants have always been subject to our jurisdiction. What form of immunity to they enjoy? Where is it enumerated?
It's not about immunity. It's about the idea that Democrats engage in that they are 'not criminals' just because they crossed the border illegally.
Remain in Mexico would keep people here illegally from being granted 'temporary status' in the country. They wouldn't be here to become 'subject to our jurisdiction'. If you catch them at or very near the border like we're supposed to, they really don't become subject to our jurisdiction, just our sovereignty and are simply returned back across the border.
The issue of course is that if they're already here illegally... or even temporarily... what do you do if they break a law and become incarcerated? NOW we have to feed and house them... and their children and spouses will argue that they need to stay to be near them etc... this is the very quagmire that has been created... intentionally IMO.
RE: Birthright citizenship - Frizzy Owl - 01-27-2025 11:58 AM
(01-27-2025 11:49 AM)OptimisticOwl Wrote:(01-27-2025 11:40 AM)Frizzy Owl Wrote: They weren't born "here", they were born on reservations.
Wowza. Every single one of them? What happens to the ones born off the reservation?
I must admit, I am unclear on when, where and how tribal jurisdiction differs from state or federal jurisdiction. When I travel to Oklahoma to play at the Indian casinos there, the speed limits right up to the casino are enforced by Oklahoma State Troopers or local law enforcement. The drugs in the drug stores there are governed by the FDA. The medical doctors are licensed by the state. I have to pay OKLA state tax on winnings over certain amounts, and report them on my 1040. But if I get rowdy and thrown out of the casino, I am subject to a tribal court.
It is a complex subject, and I don't claim to know under what circumstances in the mid-19th century an American Indian would or would not be considered a US citizen. But clearly there were exceptions, and they were particular to Native Americans and not persons in general, which is the point. The argument that specific exceptions negate the general rule is extremely weak. "All X except for X=A,B,or C" cannot logically be used to imply that every X=A,B,C.
RE: Birthright citizenship - OptimisticOwl - 01-27-2025 12:34 PM
(01-27-2025 11:58 AM)Frizzy Owl Wrote:(01-27-2025 11:49 AM)OptimisticOwl Wrote:(01-27-2025 11:40 AM)Frizzy Owl Wrote: They weren't born "here", they were born on reservations.
Wowza. Every single one of them? What happens to the ones born off the reservation?
I must admit, I am unclear on when, where and how tribal jurisdiction differs from state or federal jurisdiction. When I travel to Oklahoma to play at the Indian casinos there, the speed limits right up to the casino are enforced by Oklahoma State Troopers or local law enforcement. The drugs in the drug stores there are governed by the FDA. The medical doctors are licensed by the state. I have to pay OKLA state tax on winnings over certain amounts, and report them on my 1040. But if I get rowdy and thrown out of the casino, I am subject to a tribal court.
It is a complex subject, and I don't claim to know under what circumstances in the mid-19th century an American Indian would or would not be considered a US citizen. But clearly there were exceptions, and they were particular to Native Americans and not persons in general, which is the point. The argument that specific exceptions negate the general rule is extremely weak. "All X except for X=A,B,or C" cannot logically be used to imply that every X=A,B,C.
I think the fact that there were exceptions noted to birthright citizenship, adjudicated after the passage of the 14th amendment, indicates that intent was to provide citizenship for freed slaves and their descendants and nothing more. If the wording does not adequately convey that intention, that is what is known as a "loophole". I think it is time to close that loophole, especially since it is being abused by noncitizens.
RE: Birthright citizenship - InterestedX - 01-27-2025 12:38 PM
Now do the 2nd Amendment!
RE: Birthright citizenship - Hambone10 - 01-27-2025 12:39 PM
(01-27-2025 12:38 PM)InterestedX Wrote: Now do the 2nd Amendment!
Perhaps you start??
RE: Birthright citizenship - Frizzy Owl - 01-27-2025 12:40 PM
(01-27-2025 11:55 AM)Hambone10 Wrote: The issue of course is that if they're already here illegally... or even temporarily... what do you do if they break a law and become incarcerated? NOW we have to feed and house them... and their children and spouses will argue that they need to stay to be near them etc... this is the very quagmire that has been created... intentionally IMO.
This situation wasn't "created," it's inherent.
If someone commits a crime serious enough to warrant imprisonment while on US soil, what do you suggest other than incarceration?
Their spouses and (foreign-born) children don't have to be allowed to stay, that's a policy decision.
RE: Birthright citizenship - Frizzy Owl - 01-27-2025 12:47 PM
(01-27-2025 12:34 PM)OptimisticOwl Wrote:(01-27-2025 11:58 AM)Frizzy Owl Wrote:(01-27-2025 11:49 AM)OptimisticOwl Wrote:(01-27-2025 11:40 AM)Frizzy Owl Wrote: They weren't born "here", they were born on reservations.
Wowza. Every single one of them? What happens to the ones born off the reservation?
I must admit, I am unclear on when, where and how tribal jurisdiction differs from state or federal jurisdiction. When I travel to Oklahoma to play at the Indian casinos there, the speed limits right up to the casino are enforced by Oklahoma State Troopers or local law enforcement. The drugs in the drug stores there are governed by the FDA. The medical doctors are licensed by the state. I have to pay OKLA state tax on winnings over certain amounts, and report them on my 1040. But if I get rowdy and thrown out of the casino, I am subject to a tribal court.
It is a complex subject, and I don't claim to know under what circumstances in the mid-19th century an American Indian would or would not be considered a US citizen. But clearly there were exceptions, and they were particular to Native Americans and not persons in general, which is the point. The argument that specific exceptions negate the general rule is extremely weak. "All X except for X=A,B,or C" cannot logically be used to imply that every X=A,B,C.
I think the fact that there were exceptions noted to birthright citizenship, adjudicated after the passage of the 14th amendment, indicates that intent was to provide citizenship for freed slaves and their descendants and nothing more. If the wording does not adequately convey that intention, that is what is known as a "loophole". I think it is time to close that loophole, especially since it is being abused by noncitizens.
What you think has NEVER been how the 14th Amendment was actually applied, before or after adjudication. Exceptions have always been understood and put into practice.
RE: Birthright citizenship - Hambone10 - 01-27-2025 01:41 PM
(01-27-2025 12:40 PM)Frizzy Owl Wrote: This situation wasn't "created," it's inherent.
Thr granting of temporary LEGAL status is what is 'created'. Previously, people who are here illegally were here illegally... period. Yes, THAT part is inherent in any worthwhile nation... but breaking laws should NEVER impart an 'advantage'. If anything, you make it a disqualifier and thus pre-emptively discourage it.
Quote:If someone commits a crime serious enough to warrant imprisonment while on US soil, what do you suggest other than incarceration?
If we have proper reciprocal arrangements with other nations, I'd be fine with them being incarcerated 'there'. Plenty of crimes warrant SOME imprisonment, that I'd be fine with simply sending them back home. If you ask 20 people where they'd draw the line you'll probably get 30 lines... but I think we could find SOME level where people would be okay. The issue for me is more what happens with their families. Given the conversation between Holman and AOC, it seems that there are at least SOME on the left who would argue that these people should somehow be given a pass on at least some crimes to keep their families together. I think the compromise would be that for less serious crimes, we will LET them stay together... in their home country.
Quote:Their spouses and (foreign-born) children don't have to be allowed to stay, that's a policy decision.
the fact that this is a policy decision (which I agree with you about) is the very problem. It shouldn't be a policy decision to enforce (or not) our borders.
(01-27-2025 12:47 PM)Frizzy Owl Wrote: What you think has NEVER been how the 14th Amendment was actually applied, before or after adjudication. Exceptions have always been understood and put into practice.
Do you not think it is a 'twisting' of the law and historical practice to literally 'catch' someone illegally entering the country and rather than turning them away, we grant them temporary legal status in the country?? This is only somewhat different from 'catching' them months or years later... and doing the same thing.
RE: Birthright citizenship - Frizzy Owl - 01-27-2025 01:48 PM
(01-27-2025 01:41 PM)Hambone10 Wrote:(01-27-2025 12:40 PM)Frizzy Owl Wrote: This situation wasn't "created," it's inherent.
Thr granting of temporary LEGAL status is what is 'created'. Previously, people who are here illegally were here illegally... period.
Quote:If someone commits a crime serious enough to warrant imprisonment while on US soil, what do you suggest other than incarceration?
If we have proper reciprocal arrangements with other nations, I'd be fine with them being incarcerated 'there'. Plenty of crimes warrant SOME imprisonment, that I'd be fine with simply sending them back home. If you ask 20 people where they'd draw the line you'll probably get 30 lines... but I think we could find SOME level where people would be okay. The issue for me is more what happens with their families. Given the conversation between Holman and AOC, it seems that there are at least SOME on the left who would argue that these people should somehow be given a pass on at least some crimes to keep their families together. I think the compromise would be that for less serious crimes, we will LET them stay together... in their home country.
Quote:Their spouses and (foreign-born) children don't have to be allowed to stay, that's a policy decision.
the fact that this is a policy decision (which I agree with you about) is the very problem. It shouldn't be a policy decision to enforce (or not) our borders.
(01-27-2025 12:47 PM)Frizzy Owl Wrote: What you think has NEVER been how the 14th Amendment was actually applied, before or after adjudication. Exceptions have always been understood and put into practice.
Do you not think it is a 'twisting' of the law and historical practice to literally 'catch' someone illegally entering the country and rather than turning them away, we grant them temporary legal status in the country?? This is only somewhat different from 'catching' them months or years later... and doing the same thing.
I'm not in favor of granting temporary legal status except in the specific cases of refugees, etc. The temporary legal status thing began with Democrats stretching the definition of "refugee" past the breaking point.
But that's really beside the point, isn't it? End the practice of temporary legal status, and turn people back at the border, and there will still be people managing to get in illegally, and some will have children.
You're conflating an argument against allowing illegal immigrants in on temporary status, with an argument for a new interpretation of the 14th amendment with respect to persons born on US soil. These are two separate issues, unless you are arguing that sheer numbers make it necessary to view things differently, but then you are joining the "living document" crowd in their relativism.
RE: Birthright citizenship - OptimisticOwl - 01-27-2025 02:54 PM
(01-27-2025 12:47 PM)Frizzy Owl Wrote:(01-27-2025 12:34 PM)OptimisticOwl Wrote:(01-27-2025 11:58 AM)Frizzy Owl Wrote:(01-27-2025 11:49 AM)OptimisticOwl Wrote:(01-27-2025 11:40 AM)Frizzy Owl Wrote: They weren't born "here", they were born on reservations.
Wowza. Every single one of them? What happens to the ones born off the reservation?
I must admit, I am unclear on when, where and how tribal jurisdiction differs from state or federal jurisdiction. When I travel to Oklahoma to play at the Indian casinos there, the speed limits right up to the casino are enforced by Oklahoma State Troopers or local law enforcement. The drugs in the drug stores there are governed by the FDA. The medical doctors are licensed by the state. I have to pay OKLA state tax on winnings over certain amounts, and report them on my 1040. But if I get rowdy and thrown out of the casino, I am subject to a tribal court.
It is a complex subject, and I don't claim to know under what circumstances in the mid-19th century an American Indian would or would not be considered a US citizen. But clearly there were exceptions, and they were particular to Native Americans and not persons in general, which is the point. The argument that specific exceptions negate the general rule is extremely weak. "All X except for X=A,B,or C" cannot logically be used to imply that every X=A,B,C.
I think the fact that there were exceptions noted to birthright citizenship, adjudicated after the passage of the 14th amendment, indicates that intent was to provide citizenship for freed slaves and their descendants and nothing more. If the wording does not adequately convey that intention, that is what is known as a "loophole". I think it is time to close that loophole, especially since it is being abused by noncitizens.
What you think has NEVER been how the 14th Amendment was actually applied, before or after adjudication. Exceptions have always been understood and put into practice.
Repeating what was quoted from the link:
he first time the nation’s highest court opined on the meaning of the Citizenship Clause — in the famous Slaughter-House cases of 1872 — it stated that the phrase "subject to the jurisdiction thereof" excluded "children of ministers, consuls, and citizens or subjects of foreign States born within the United States."
The Court confirmed this understanding in 1884 in Elk v. Wilkins, denying birthright citizenship to an American Indian because he "owed immediate allegiance to" his tribe and not the United States.
Do these not imply a different view of the 14th in 1872 and 1884 than now?
RE: Birthright citizenship - OptimisticOwl - 01-27-2025 02:59 PM
(01-27-2025 01:48 PM)Frizzy Owl Wrote: there will still be people managing to get in illegally, and some will have children.
...and IMO, those children should not become tools to ratify their parents transgressions, which is the function of an "anchor baby".
I have thought this problem needed addressing long before Trump came down the escalator. The best way would be to amend the Constitution so that it is clear that mere birth here does not convey citizenship, but the other way, getting an interpretation from the Supreme Court, works also, and has been used in countless cases, including some on this very topic.