Trump Announces His Plan to Change Constitution by Executive Order - End Birthright Citizenship

[Sabri]

What does that have to do with millions of people being in the country illegally?

Absolutely nothing!

 

[JSRG]

From the link:

Proponents of ending birthright citizenship argue that undocumented immigrants are not “subject to the jurisdiction” of the United States, and therefore their children cannot receive citizenship by virtue of simply being born here.

Not repealing anything. Thoughts?

First, for quick reference to people reading this who may not know it, here is the text of the 14th Amendment's Citizenship Clause: "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 "subject to the jurisdiction thereof" is the key point here.

Now, are undocumented immigrants subject to the jurisdiction of the United States? Well, if they were not, then they could not be arrested or prosecuted for crimes. That seems practically enough by itself to settle the issue, but if we look at the congressional debates about the 14th Amendment, this fact becomes even more obvious.

The specification of "subject to the jurisdiction of the United States" was done to rule out children of ambassadors or visiting sovereigns--due to diplomatic immunity, they are not subject to the jurisdiction of the United States (also Native Americans on tribal land, which I'll get to shortly). Indeed, this is flat-out stated by Senator Howard, who introduced it, in a piece of text unfortunately often misunderstood or taken out of context:

"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 by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Source: https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11 (middle of the center column, in case the link does not work this is page 2890 of the 1866 Congressional Globe)

The often misunderstood is the "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors". The argument goes that this shows the Fourteenth Amendment was not intended to grant citizenship to foreigners, as it is part of the list of those excluded, being foreigners and aliens and people who belong to the families of ambassadors. However, if that is the case, the sentence as written is ungrammatical, with no "and" in the list (the proper way to say it would be "foreigners, aliens, and belong to the families of ambassadors"), and the odd redundancy of "foreigners" and "aliens". The much more plausible interpretation is that the word "aliens" was meant to clarify the meaning of foreigners, and a better rendering would be "This will not, of course, include persons born in the United States who are foreigners--aliens--who belong to the families of ambassadors." This is backed up by the fact that shortly after this statement, Senator Cowan makes a big speech complaining about how he thinks it's a bad idea to make children of foreigners citizens, and then Senator Conness who argues it's not an issue. It is obvious that they interpret it very broadly to include children of foreigners, and senator Howard never disagrees with this interpretation. Thus it seems fairly clear that Howard's statement of "foreigners, aliens, who belong to families of ambassadors" meant "aliens" to be a clarifying term on his usage of "foreigners" (remember, back then the definition of alien in referring to someone not from Earth had not caught on yet), and the person who took down the dictation simply used inaccurate punctuation to express his intent.

Aside from ambassadors or foreign sovereigns, the other category that "subject to the jurisdiction thereof" was meant to exclude was Native Americans living on tribal land. Indeed, a big argument breaks out about whether they should add "excluding Indians not taxed" to the text of the citizenship clause, in order to make it clear that it does not apply to them. One of the main opponents to this was Senator Trumbull, and here's the most relevant excerpt from his speech which again demonstrates the question is whether laws apply to them:

If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is "subject to the jurisdiction of the United States." Would the Senator from Wisconsin think for a moment of bringing a bill into Congress to subject these wild Indians with whom we have no treaty to the laws and regulations of civilized life? Would he think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? Are they subject to our jurisdiction in any just sense? They are not subject to our jurisdiction. We do not exercise jurisdiction over them. It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.
Source: https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 (this is found in the mid left most column of the link, which in case the link stops working is from page 2893)

To argue that Trumbull was wrong on this is of little use. If he was wrong, then the other side of the debate would be right in their declaration that the 14th Amendment, as written, grants birthright citizenship to all Native Americans, meaning it has an even more broad meeting than Trumbull took it to be! For example, after Trumbull gives the above, Senator Reverdy Johnson speaks and says he wants "excluding Indians not taxed" added, arguing that the United States does legislate such things ("We punish murder committed within the territorial limits in which the tribes are found. I think we punish the crime of murder committed by one Indian upon another Indian. I think my friend from Illinois is wrong in supposing that that is not done." This is in the middle of the right-most column). Both of them agree that, if the government can arrest a Native American for killing another Native American (or committing other crimes against them), they are subject to the jurisdiction of the United States. Since any undocumented immigrant can be arrested for killing another so long as it occurs within the bounds of the United States, it seems clear that they would be subject to the jurisdiction of the United States in this sense.

So based on all of this, it seems obvious that "subject to the jurisdiction of the United States" simply means that one is subject to the laws of the United States. Native Americans were not, as crimes committed by one against another on tribal land were not handled by the United States (subsequent legislation has made the issue more confusing, but I am talking about the 1860's). Similarly, ambassadors and sovereigns are not either, due to diplomatic immunity.

Furthermore, we must consider the Supreme Court case United States v. Wong Kim Ark, in which it said that children of immigrants have birthright citizenship. That is currently binding precedent. Now, some try to dismiss it either by saying it was wrongly decided, or by arguing that Wong Kim Ark applied only to children of legal immigrants, or immigrants who were permanent residents. However, if one reads the decision, its rationale would seem to apply just as well as children of illegal immigrants. Even if Wong Kim Ark was wrong, until such time as the Supreme Court says it's wrong or differentiates illegal and legal immigration in regards to the Citizenship Clause, it's binding.

But if one wishes a more scholarly source, here is a law review article by James Ho which argues forcefully that the 14th Amendment grants birthright citizenship on all children of immigrants, legal or illegal:

https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf

James Ho is not some kind of liberal activist. He's been noted to be a fairly conservative judge on on the Court of Appeals (he was put there, ironically, by Donald Trump, though the above article was written a while before then). One thus cannot claim him of having some kind of liberal bias here.

Sorry for rambling on a bit there, but since I did a bunch of research on this subject back when Trump was talking about changing it during his first term (only for him to within a few weeks apparently lose all interest in the subject and never brought it up again until now), and I thought it would be useful to share.

So tl;dr version: "Subject to the jurisdiction" of the United States means, both in terms of common sense and in terms of what the people who were in congress at the time thought (both those who were for and against its wording!), that laws such as criminal laws apply to you. Since they clearly do for illegal immigrants, they are subject to the jurisdiction and eligible for birthright citizenship. Whether that is a good or bad idea is arguable, but pretty blatantly what the Constitution says in the original understanding.

 

[ViaCrucis]

If you get your head out of you know where, you will see the difference between legal and illegal. Trump's proposal is directed at those in the country illegally. It doesn't have anything to do with legal immigrants. So unless Trump's ancestors or my ancestors were illegal aliens, you're making a false equivalency.

According to the 14th Amendment, anyone born here is a citizen, they can't be an illegal immigrant if they are legally citizens. This isn't a false equivalency. If being born in the US doesn't grant citizenship, then who gets to decide who is and isn't a citizen? What right does ANYONE have to claim to be a citizen of the United States outside of the protections afforded in the 14th Amendment?

Do YOU want presidents to be able to make fiat whims about things as important as this? Do YOU want presidents to have this kind of ad hoc power over the Constitution?

Fortunately, it is almost certainly just more empty Trump bluster.

The implications however, should Trump be re-elected, and should Trump successfully be able to do something like that, it sets a precedent that effectively grants a sitting president total power and authority over the Constitution. At that point, we don't have a chief executive, we have an autocrat. At that point, American democracy ceases to exist, the Republic is dead.

It's not only a terrible idea in itself, it's literally shooting democracy in the head and burying it in the forest.

-CryptoLutheran

 

[ozso]

According to the 14th Amendment, anyone born here is a citizen, they can't be an illegal immigrant if they are legally citizens. This isn't a false equivalency. If being born in the US doesn't grant citizenship, then who gets to decide who is and isn't a citizen? What right does ANYONE have to claim to be a citizen of the United States outside of the protections afforded in the 14th Amendment?

Do YOU want presidents to be able to make fiat whims about things as important as this? Do YOU want presidents to have this kind of ad hoc power over the Constitution?

Fortunately, it is almost certainly just more empty Trump bluster.

The implications however, should Trump be re-elected, and should Trump successfully be able to do something like that, it sets a precedent that effectively grants a sitting president total power and authority over the Constitution. At that point, we don't have a chief executive, we have an autocrat. At that point, American democracy ceases to exist, the Republic is dead.

It's not only a terrible idea in itself, it's literally shooting democracy in the head and burying it in the forest.

-CryptoLutheran

My point was simply that there's a difference between the offspring of legal citizens and the offspring of illegal aliens. It doesn't make much sense to me that people who don't want to become legal citizens themselves would want their kids to automatically become legal citizens simply because they born here at the time. My sister was a Vietnam missionary, so my nephew ended up being born in Cambodia. Does that make him a Cambodian?

Aside from that, basically the way the way 14th amendment is being interpreted, someone who was born in a taxi that was ten feet from crossing the border back into Canada is an American citizen. Did the writers of the 14th amendment really have that in mind?

 

[JSRG]

My point was simply that there's a difference between the offspring of legal citizens and the offspring of illegal aliens.

There certainly is a difference. However, that difference is immaterial to the question of whether they have birthright citizenship.

It doesn't make much sense to me that people who don't want to become legal citizens themselves would want their kids to automatically become legal citizens simply because they born here at the time. My sister was a Vietnam missionary, so my nephew ended up being born in Cambodia. Does that make him a Cambodian?

Whether it "makes sense" or not does not change whether it's what the Constitution says and was the clear intent. There's a lot of things that many people would claim do not "make sense" in the Constitution, but that does not change the fact they're there.

I don't know for sure what the laws in Cambodia concerning birthright citizenship are, but whether or not they would acquire Cambodian citizenship is irrelevant in regards to the laws (or rather Constitution) of the United States.

Aside from that, basically the way the way 14th amendment is being interpreted, someone who was born in a taxi that was ten feet from crossing the border back into Canada is an American citizen. Did the writers of the 14th amendment really have that in mind?

Did they have such a thing specifically in mind? Probably not. But it is a natural consequence of the things they did have in mind.

Perhaps, if they had advance knowledge of the various changes that would happen in the world and the United States later on, they would have done things differently. But they didn't, so we have, for better or for worse, what they did do in the 14th Amendment, at least until there's enough of a movement to amend it to restrict birthright citizenship.

 

[keith99]

My point was simply that there's a difference between the offspring of legal citizens and the offspring of illegal aliens. It doesn't make much sense to me that people who don't want to become legal citizens themselves would want their kids to automatically become legal citizens simply because they born here at the time. My sister was a Vietnam missionary, so my nephew ended up being born in Cambodia. Does that make him a Cambodian?

Aside from that, basically the way the way 14th amendment is being interpreted, someone who was born in a taxi that was ten feet from crossing the border back into Canada is an American citizen. Did the writers of the 14th amendment really have that in mind?

Probably, or more to the point they were well aware of the sort of thing Trump is saying he would do and felt the case you bring up was trivial in comparison.

This is an attempt to prevent the wrong kind of people from becoming citizens and voting. Wrong defined by ethnic background, just as was the case with Southern states trying to keep freed slaves from being citizens and voting.

BTW the 14th amendment is also quite clear on EVERYONE being entitled to equal protection under the law. That right is NOT limited to citizens!

Section 1.

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.

 

[ozso]

Probably, or more to the point they were well aware of the sort of thing Trump is saying he would do and felt the case you bring up was trivial in comparison.

This is an attempt to prevent the wrong kind of people from becoming citizens and voting. Wrong defined by ethnic background, just as was the case with Southern states trying to keep freed slaves from being citizens and voting.

BTW the 14th amendment is also quite clear on EVERYONE being entitled to equal protection under the law. That right is NOT limited to citizens!

The real issue is illegal alien anchor babies. I haven't heard the same kind of complaints about all the immigrants from India and Asia in the US.
How is protection under the law supposed to be interpreted? Does it mean if you beat up someone who's in the country illegally, you'll be charged with assault? If so I'd say that's inarguable.

 

[ozso]

There certainly is a difference. However, that difference is immaterial to the question of whether they have birthright citizenship.



Whether it "makes sense" or not does not change whether it's what the Constitution says and was the clear intent. There's a lot of things that many people would claim do not "make sense" in the Constitution, but that does not change the fact they're there.

I don't know for sure what the laws in Cambodia concerning birthright citizenship are, but whether or not they would acquire Cambodian citizenship is irrelevant in regards to the laws (or rather Constitution) of the United States.


Did they have such a thing specifically in mind? Probably not. But it is a natural consequence of the things they did have in mind.

Perhaps, if they had advance knowledge of the various changes that would happen in the world and the United States later on, they would have done things differently. But they didn't, so we have, for better or for worse, what they did do in the 14th Amendment, at least until there's enough of a movement to amend it to restrict birthright citizenship.

Amendments have been ratified before as far as I know. And I doubt any amendment was designed to facilitate illegal activity.

 

[JSRG]

Amendments have been ratified before as far as I know.

Well, yes, of course amendments have been ratified, we have over 20 of them. My point is that birthright citizenship is the law of the land until such time as you can amend the constitution to change it, which would take a very strong movement; the difficulty to amend the Constitution means you normally need overwhelming support to change it.

And I doubt any amendment was designed to facilitate illegal activity.

I'm not sure how that's relevant; something can have unintended consequences. The 18th Amendment (prohibition) was obviously not designed to facilitate illegal activity, but its ban on alcohol caused organized crime to flourish in the United States to an extent I do not think was ever seen before or has ever been seen since the 21st Amendment repealed it.

 

[ozso]

Well, yes, of course amendments have been ratified, we have over 20 of them. My point is that birthright citizenship is the law of the land until such time as you can amend the constitution to change it, which would take a very strong movement; the difficulty to amend the Constitution means you normally need overwhelming support to change it.


I'm not sure how that's relevant; something can have unintended consequences. The 18th Amendment (prohibition) was obviously not designed to facilitate illegal activity, but its ban on alcohol caused organized crime to flourish in the United States to an extent I do not think was ever seen before or has ever been seen since the 21st Amendment repealed it.

People weren't coming into the US illegally to expoit the 18th amendment.

As a side note I'll say Trump is just making an empty campaign promise in my opinion. I think if he could, he probably would, but I don't think he can. However if he becomes president, that's a good indication that the majority of American voters are in favor of ratifying the 14th Amendment.

 

[Desk trauma]

As a side note I'll say Trump is just making an empty campaign promise in my opinion. I think if he could, he probably would, but I don't think he can. However if he becomes president, that's a good indication that the majority of American voters are in favor of ratifying the 14th Amendment.

The 14th amendment was already ratified on July 9 1868.

 

[ozso]

The 14th amendment was already ratified on July 9 1868.

Perhaps it's time for another update.

 

[Desk trauma]

Perhaps it's time for another update.

Good luck. Thus far the former president has never won a major of the vote.

 

[ozso]

Good luck. Thus far the former president has never won a major of the vote.

Americans might be a lot more fed up when the time comes.

 

[Desk trauma]

Americans might be a lot more fed up when the time comes.

Hey, maybe third times a charm on winning the popular vote.

 

[ViaCrucis]

My point was simply that there's a difference between the offspring of legal citizens and the offspring of illegal aliens. It doesn't make much sense to me that people who don't want to become legal citizens themselves would want their kids to automatically become legal citizens simply because they born here at the time. My sister was a Vietnam missionary, so my nephew ended up being born in Cambodia. Does that make him a Cambodian?

It does if that's how Cambodian law works.

Aside from that, basically the way the way 14th amendment is being interpreted, someone who was born in a taxi that was ten feet from crossing the border back into Canada is an American citizen. Did the writers of the 14th amendment really have that in mind?

Yes, actually. The goal was to ensure citizenship to anyone born here or naturalized here, regardless of a person's origins, race, or religion. Citizenship cannot be denied simply on the basis of where a person's parents are from. Where the 14th Amendment doesn't apply, and was intended to not apply, is for foreign nationals visiting in a diplomatic capacity. Whether a person enters into the country legally or illegally, if a child is born here, that child is an American. The alternative is to pick and choose who gets to be a citizen, and thus create discrimination based on the whims of law-makers.

-CryptoLutheran

 

[ozso]

It does if that's how Cambodian law works.



Yes, actually. The goal was to ensure citizenship to anyone born here or naturalized here, regardless of a person's origins, race, or religion. Citizenship cannot be denied simply on the basis of where a person's parents are from. Where the 14th Amendment doesn't apply, and was intended to not apply, is for foreign nationals visiting in a diplomatic capacity. Whether a person enters into the country legally or illegally, if a child is born here, that child is an American. The alternative is to pick and choose who gets to be a citizen, and thus create discrimination based on the whims of law-makers.

-CryptoLutheran

A child born to those in the US legally isn't ambiguous.

As for my analogy, what if Canadians who unintentionally have a child while technically in America, don't want their child to be an American? There's lots of people who don't like America and Americans after all.

 

[ozso]

Hey, maybe third times a charm on winning the popular vote.

Between Trump and Biden the next time around, it wouldn't surprise me any.

 

[keith99]

A child born to those in the US legally isn't ambiguous.

As for my analogy, what if Canadians who unintentionally have a child while technically in America, don't want their child to be an American? There's lots of people who don't like America and Americans after all.

Uh, one can renounce citizenship. You do not present an issue here.

 

[ozso]

Uh, one can renounce citizenship. You do not present an issue here.

Ah, so it's flexible rather than absolute.