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#Post#: 8583--------------------------------------------------
The exciting debate about the 14th amendment
By: NealC Date: November 1, 2018, 5:54 am
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It is on issues like this where Trump shows his genius. Or if
he is not a genius, at least he is listening to the geniuses who
work for him. Which is refreshing.
Birthright citizenship, and the foolishness it has spawned
(anchor babies) needs to be stopped. Developed (and sane)
nations do not allow it. It only exists in this country because
of the murky construction of the first clause of the 14th
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".
"and subject to the jurisdiction thereof"
What does that mean? It has resulted in this modern time of
easy travel in pregnant women from all over the world hopping a
plane in their third trimester and overstaying a tourist visa,
or smuggling themselves in illegally and then giving birth to
new US citizens who themselves and their parents can no longer
be deported. Ridiculous.
Steve you can froth at the mouth, jump up and down and stamp
your feet all you like but you know the meaning of this clause
has never been tested. Perhaps your side should have allowed it
to be tested before the Supreme Court got so far out of your
control.
And here so vividly illustrated before your eyes is the true
legacy of the Trump presidency, a conservative court stacked
safely 5-4, and often 6-3. And poor Ruth Bader Ginsburg, the
champion of the left, so very old and frail. Good luck dragging
her @ss to 2020.
It only took us a few weeks to imitate our liberal forbearers
and look to do what we warned them at the time was so dangerous
to do. Legislate from the bench. But they just wouldn't listen
would they?
Just think of the bench legislation that can now be joyously
overturned, and perhaps new legislation begun! It is enough to
give a liberal nightmares.
I wont even start arguing the 14th Amendment yet. I am going to
pause and glory in gloating over this, and watch for your
frothing response as it all sinks in.
Perhaps they are having a sale on one way tickets to Germany?
#Post#: 8589--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: SHL Date: November 1, 2018, 1:03 pm
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Neal
Oh yeah, they do have sales on tickets to Germany all the time
and direct flights too from San Francisco, or at least to
Iceland, a normal country with normal people, so that`s good
because I don’t have to stop in another loony-town in the USA to
change planes. Thank god.
It is basic 1st year law school stuff to learn that any place in
the world acquires jurisdiction over you for any purpose if you
happen to be in that place. Pretty obvious. You don’t even have
to be formally admitted to the US by customs at the airport to
be subject to US law. I could (but won`t because it`s all in
German) link a story about a young German guy who was denied
entry to the US because a couple of a**hole customs guys at the
airport in Chicago who thought he might want to overstay his 3
month visitor`s visa ( automatically obtained online through the
ESTA system), (what are customs called now, the Department of
Homeland Security I suppose) all for the stupidest of reasons
(he had returned to Germany after arriving a week earlier to
attend his grandfather`s funeral and then returned thereafter,
even though he was well within the 3months) and he brought a
pillow his sister had given him, with the words printed on it,
„Don’t forget us.“ They thought he wanted to overstay his visa
and live here. No he didnt. He was detained overnight in a jail
cell with an Arab, Mexican, a Russian and some other dude with
an open toilet. And given a flimsy mattress to sleep on on the
floor. He had to turn over his belt because they said he might
hang himself (??????). (He said he wasn’t using that open toilet
to do number 2, but number 1 was okay, so he refused any food
they gave him.)
The next day they escorted him to a flight to München and a
different TSA officer was nice and said he had just run into a
couple of a-holes and was at the wrong place at the wrong time.
The German guy said he made the sign of the cross as they
arrived in München. I would have done the same. (Yes, we
Lutherans do that too.)
So, what`s so ambiguous about saying if you are in a place
you`re under its jurisdiction? If the US Supreme Court carves
out an exception in such a clear and simple reading of the 14th
Amendment, you really will have an activist court, only
blatantly so, this time working backward for right-wing causes.
It`s exactly the same judicial activism the right wingers have
been complaining about for years. Now they will just
hypocritically cheer it.
I don’t really care about US citizenship rules myself (I`d
gladly renounce my US citizenship if I had a good one to replace
it with- I don’t mean Nigeria obviously). So do the
Constititional amendment route. At least that would be
consistent with your ideology. Your issue reminds me of
Clinton`s famous „it depends on what the meaning of the word
„is“ is. That kind of thinking wouldn`t even allow you to be a
community teacher of English on Italki.
#Post#: 8597--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: SHL Date: November 1, 2018, 7:46 pm
---------------------------------------------------------
Neal and Jerry,
You both agree that the 14th Amendment only grants citizenship
to people born in the US „and subject to the jurisdiction
thereof“. That’s what the 14th Amendments says. Right? Now, I
know it`s a bit of a difficult question to answer, but have you
ever wondered who possibly could be born in the US, but NOT be
subject to the jurisdiction of the US? It doesn’t seem to make
any sense, now does it? Doesn’t that sound odd to you guys? Hum.
If someone crawls over the border the US no doubt has
jurisdiction over them. That’s easy. They don’t even have to be
admitted by customs to be under US jurisdiction once they enter
US airspace. So, who could these people be this clause is
referring to?
Well, actually there is an answer to this question. There is
just ONE class of people who could be born here and not subject
to the jurisdiction of the US (don’t forget, jurisdiction means
the power of a court to make orders and or enter judgments
pertaining to someone, either civil or criminal).
Ah. The answer to this perplexing question: Those are people
with diplomatic immunity. Those are diplomats and their
families. They have, under international law, sovereign
diplomatic immunity. That means these people cannot be charged
with a crime they commit in the US. None. Zero. This is easy,
2nd year, maybe 3rd year law school stuff. Say a Saudi diplomat
or family member of a diplomat gets drunk and drives his car
into your living room. The guy`s arrested on felony drunk
driving charges. On the first day of court, at the arraignment,
the defense makes a motion to dismiss, flashes the defendant`s
Saudi Diplomatic Passport at the Judge and the Judge promptly
announces „Case Dismissed.“
That`s the way it works guys. That’s sovereign diplomatic
immunity. International law. Now, a DA`s office might complain
to the US State Department and say „we want this guy expelled
from the US because we don`t want him getting drunk and driving
his car into people`s living rooms“, and then the Department of
State can expel the person. However, that’s all they can do.
Diplomats and their families are not subject to the jurisdiction
of the US even while in the US. Why? Easy. It´s a good rule of
international law, because we don’t want one of our diplomats in
Saudi Arabia getting his head chopped off for drinking a beer,
now do we?. Makes good sense, doesn’t it?
Now, embassies don’t have hospitals built in them, so say the
Ambassador to Chile`s wife is pregnant and is taken to a
Washington, DC hospital to have a baby. We don’t want the baby
getting citizenship by birth because that person is the child of
a foreign diplomatic family. That wouldn’t make any sense. So,
the child, being the Ambassador`s child is not subject to the
jurisdiction of the US. Hence, the child doesn’t get US birth
citizenship.
That`s why that clause is in there. I very much doubt if this
case were tested in court it would even be appealed. If you
review the legislative history of the 14th Amendment, I would
bet it explains this little clause that you guys are all hung up
on. And I doubt the US Supreme Court would even grant certiorari
even if the case did get to an appeal, because it`s so easy of
an issue.
I think you`re stuck with the constitutional amendment process
guys.
#Post#: 8599--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: NealC Date: November 1, 2018, 9:36 pm
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Perhaps you can be on the team of crackerjack lawyers that get
to present arguments to the Supreme Court!
It is nice to see you have gotten past your first bullsh*t
argument, your rather pathetic failings that the clause was just
meaningless filler. You have realized that argument would not
pass muster with the Supremes, very good. There are no filler
clauses in the US Constitution, the authors were better than
that. They knew they were writing for posterity.
You moved forward a bit with your first argument on this thread,
that your very presence puts you under the jurisdiction of the
laws of where you are at. In a very real sense you are correct
here. But there is a sense where it cannot be the whole
argument, and you know it. You show that knowledge in your new
argument.
You understand that if mere presence in the United States means
under jurisdiction, and you know the clause is not filler you
are then left with a big fat question. Under your way of
thinking, just then who is present and NOT under jurisdiction?
Who are the magical exceptions to the rule? There must be some,
or we wouldn't have this clause.
I have to say it is a lawyer's mind that brought you to the
inevitable question, bravo. And you answered it with such
aplomb. Why, it is diplomats, and the diplomatic community that
are present but not under jurisdiction. Perfect! Everyone
accepts that!
I just don't think that is going to satisfy the Supreme Court.
An entire clause that refers only to the diplomatic community,
and yet that does not mention them.
I am sure that will be part of the defense, but I don't think
you win on the basis of these arguments. It is also going to be
fun to watch liberal lawyers be forced to reach for
justification to 'author's intent'. Oh how rich the irony!
I will lay dollars to doughnuts on two things:
1. If Trump does launch this executive order, it will be
challenged very quickly.
2. If it is challenged the administration requests the Supreme
Court intervene and fast track it.
It's gonna be a fun Summer :-)
#Post#: 8601--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: SHL Date: November 1, 2018, 10:13 pm
---------------------------------------------------------
[quote author=NealC link=topic=568.msg8599#msg8599
date=1541126168]
Perhaps you can be on the team of crackerjack lawyers that get
to present arguments to the Supreme Court!
It is nice to see you have gotten past your first bullsh*t
argument, your rather pathetic failings that the clause was just
meaningless filler. You have realized that argument would not
pass muster with the Supremes, very good. There are no filler
clauses in the US Constitution, the authors were better than
that. They knew they were writing for posterity.
You moved forward a bit with your first argument on this thread,
that your very presence puts you under the jurisdiction of the
laws of where you are at. In a very real sense you are correct
here. But there is a sense where it cannot be the whole
argument, and you know it. You show that knowledge in your new
argument.
You understand that if mere presence in the United States means
under jurisdiction, and you know the clause is not filler you
are then left with a big fat question. Under your way of
thinking, just then who is present and NOT under jurisdiction?
Who are the magical exceptions to the rule? There must be some,
or we wouldn't have this clause.
I have to say it is a lawyer's mind that brought you to the
inevitable question, bravo. And you answered it with such
aplomb. Why, it is diplomats, and the diplomatic community that
are present but not under jurisdiction. Perfect! Everyone
accepts that!
I just don't think that is going to satisfy the Supreme Court.
An entire clause that refers only to the diplomatic community,
and yet that does not mention them.
I am sure that will be part of the defense, but I don't think
you win on the basis of these arguments. It is also going to be
fun to watch liberal lawyers be forced to reach for
justification to 'author's intent'. Oh how rich the irony!
I will lay dollars to doughnuts on two things:
1. If Trump does launch this executive order, it will be
challenged very quickly.
2. If it is challenged the administration requests the Supreme
Court intervene and fast track it.
It's gonna be a fun Summer :-)
[/quote]
Well, Neal, I knew my International Law class from 1988 would
come in handy someday. That day has arrived! (And I can`t even
believe that was an elective class too because it`s not tested
on the Bar Exam.) Oh, and I got the AmJur Award in that class
also, which means I got the highest grade in the class. I got a
couple of other Amjur awards for 2 or 3 other classes too, but I
forgot which they were. I do recall getting one in Evidence, the
other Constitutional Law Seminar and I`m pretty sure there was
one other, but I can`t remember which one it was. Sorry, I`m
suffering a little brain fog at the moment. I did graduate Cum
Laude, so that was good. Oh well, that was 30 years ago.
Yeah, it took a little delay for my brain to kick in on this one
because I have to deal with all this family law BS all day,
which pollutes my mind with all these goofy people. But, I do
like to eat and maintain my internet service, so I`m a bit
stuck. Need the income.
But, it is a great question. Who else could this clause possibly
refer to, if not the children of diplomats? I can`t think of any
other class of people? If you`ve got some theories, let´s hear
em. But, there’s nothing else out that that works as far as I
can tell.
So, if this ever goes to court, reviewing the legislative
history of the Amendment will be done, definitely, because this
exception clause appears (outside of my explanation) so bizarre.
#Post#: 8602--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: SHL Date: November 1, 2018, 10:39 pm
---------------------------------------------------------
Just to finish a thought, it is mind-boggling to try and imagine
how a person can be born in a country and at the same time that
country not have jurisdiction over that person? Like what? Other
than the children of diplomats, I can`t imagine anyone else this
could possibly refer to. But, it does make sense that we
wouldn’t want the children of diplomats to acquire citizenship
by birth in the US because their presence in the country is for
a specific and special international purpose. That sort of makes
sense. And, it`s also something I doubt any diplomat would
expect anyway, that his children born here would be
automatically US citizens. That even sounds a bit goofy.
I mentioned elsewhere that Manuel Noriega was essentially
kidnapped from Panama and brought to the US to stand trial. All
the diplomatic immunity arguments were made in his case and
failed. And, he was a Head of State of a foreign country. He was
not even in the US. Of course, you could argue he wasn’t part of
a diplomatic mission, and maybe that was part of it. I don’t
know.
I haven’t read any appellate decision on his conviction and I’m
not even sure there was one published. It’s possible, I just
don’t know. If there were such a published opinion, that case
would be a research starting point on international law and the
law of diplomatic immunity, because that was all part of the
defense.
Now, Neal don’t say it but I bet you`re thinking „That SHL used
to be a pretty smart guy, and he did well in law school, so what
happened to his brain??“ :)
#Post#: 8604--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: NealC Date: November 1, 2018, 10:52 pm
---------------------------------------------------------
I think the argument is going to go something like this:
You're not going to find the answer to who fits the clause in
the 14th Amendment itself. The clause simply recognizes that
such a class of people (may?) exist. The purpose of the 14th
Amendment is the establishment of the rights of slaves,
elevating them from property to citizens, and gaining for them
the full and irrevocable rights of citizenship. The 14th
Amendment was NOT written to describe the naturalization of
foreign aliens. That is an unintended consequence.
The clause recognizes that there might be a class of non
citizens who are not under jurisdiction, and that class would be
defined by the citizenship and naturalization laws addressed in
article one, section 8. In other words defined by legislation
in the Congress and the permitted executive actions of the
President. Recognizing THAT would pave the way to comprehensive
immigration reform.
This is what energizes Trump's base. We have known for a long
time birthright citizenship is wrong headed, but we have had our
hands tied by this erroneous view of the 14th Amendment, and the
plain FEAR of our leaders to address it. Now it is getting
addressed. No fear! How liberating.
Dare I whisper it?
Ok I will dare it. Abortion is not a Federal matter.
There, I said it.
Hee hee :-)
#Post#: 8606--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: SHL Date: November 2, 2018, 12:12 am
---------------------------------------------------------
[quote author=NealC link=topic=568.msg8604#msg8604
date=1541130736]
I think the argument is going to go something like this:
You're not going to find the answer to who fits the clause in
the 14th Amendment itself. The clause simply recognizes that
such a class of people (may?) exist. The purpose of the 14th
Amendment is the establishment of the rights of slaves,
elevating them from property to citizens, and gaining for them
the full and irrevocable rights of citizenship. The 14th
Amendment was NOT written to describe the naturalization of
foreign aliens. That is an unintended consequence.
The clause recognizes that there might be a class of non
citizens who are not under jurisdiction, and that class would be
defined by the citizenship and naturalization laws addressed in
article one, section 8. In other words defined by legislation
in the Congress and the permitted executive actions of the
President. Recognizing THAT would pave the way to comprehensive
immigration reform.
This is what energizes Trump's base. We have known for a long
time birthright citizenship is wrong headed, but we have had our
hands tied by this erroneous view of the 14th Amendment, and the
plain FEAR of our leaders to address it. Now it is getting
addressed. No fear! How liberating.
Dare I whisper it?
Ok I will dare it. Abortion is not a Federal matter.
There, I said it.
Hee hee :-)
[/quote]
Neal,
Your argument is terribly convoluted and contradicts a good
number of basic laws on personal jurisdiction that have already
been well-established in civil and criminal law. Are you saying
Congress can define who it does not have jurisdiction over, so
as to avoid a finding of citizenship by birth? Hum. But, to do
that would require the repeal of good deal of contrary law. US
law on personal jurisdiction has historically been expanding,
not contracting. At the moment, the US asserts personal
jurisdiction over people anywhere in the world who do just about
anything that has any connection to or affects the US in any way
whatsoever (the sending of things to the US, messages, you name
it). Where the limits are are hard to say.
It`s true that the 14th Amendment was a post-Civil War amendment
to grant citizenship rights to former slaves. Yeah, that part is
easy. But, it`s the exception clause that gets strange. Who are
these people over whom the US has no jurisdiction but were born
here? Another thought I had were Native American Indians on
their tribes. That’s a maybe. I was just kicking that idea
around as a possibility in addition to the children of
diplomats. Then I looked at Wikipedia.
Wikipedia supports my interpretation well, but is slightly
different:
„During the original congressional debates over the amendment
Senator Jacob M. Howard of Michigan- the author of the
Citizenship Clause- described the clause as having the same
content, despite different wording, as the earlier Civil Rights
Act of 1866, namely, that it excludes Native Americans who
maintain their tribal ties and ´persons born in the United
States who are foreigners, aliens, who belong to the families of
ambassadors or foreign ministers. ´" According to Glenn W.
LaFantasie of Western Kentucky University, „`A good number of
his fellow senators supported his view of the citizenship
clause.´Others also agreed that the children of ambassadors and
foreign ministers were to be excluded.“ See, I didn`t get my
AmJur award for nothing! :) And that was off the top of my head
too.
Well, read the Wikipedia article on it and see what you think.
It is true that a debate exists over this, and arguments have
gone both ways, with some so-called scholars arguing that the
children of illegal immigrants aren’t covered by the amendment
(the „tourism citizenship“ idea.) At the moment, there is no
definitive decision on it, but the weight of authority appears
to favor granting citizenship by birth to even children of
illegal immigrants.
Actually, since Roe v. Wade, abortion became a federal matter,
but that was only since 1973. Have you ever read Roe v. Wade? I
have. A couple of times actually. It`s a bit long-winded with 2
dissenting votes, one of which was William Rehnquist, of course
(he was the ultra-conservative on the court at the time) and I
think White was the other. Admittedly, it was a somewhat strange
decision, starting out admitting how controversial the subject
was, and so on, and then going through a long line of cases
dating back through the 60s on contraceptive rights and personal
rights of autonomy in childbearing. Then, as I recall, without
looking at it again, it dives into liberty rights the authors
describe as arising from the „penumbras“ of the due process
clauses of the 14th and 5th Amendments (just going from memory
here) , rights sort of existing in the shadows so to speak of
the due process language (I know it sounds a little weird) and
they wind up defining 3 tri-mesters of a pregnancy and saying
the States cannot do much during the first on abortion issues, a
little more during the 2nd tri-mester with the most restriction
allowed during the 3rd tri-mester. As I recall the court tossed
in a bit of an exception to even 3rd tri-mester abortions where
the mother`s health was at stake. Mental or physical. That led
to many many other lower court interpretations giving states
less regulatory powers even in the 3rd tri-mester (this must be
boring the h*ll out of the other board members. Sorry.)
Anyway, that`s a whole other discussion, but the whole case was
built on other cases involving contraception rights and so on.
Yeah, it is a bit unusual of a case.
But the US Supreme Court has been acting as, what they`ve called
for a long time, a „Super-Legislature“ and it`s likely going to
stay that way. Now the Republicans want to use it to their own
advantage for the same purpose. That’s total hypocrisy
#Post#: 8610--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: NealC Date: November 2, 2018, 6:00 am
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"Namely, that it excludes Native Americans who maintain their
tribal ties and persons born in the United States who are
foreigners, aliens, who belong to the families of ambassadors or
foreign ministers"
Right, that is where the original intent lies - people who are
born in the US who are foreigners and aliens by definition -
because of their ancestry. Perhaps back then it was only
children of ambassadors but in the interim Congress has acted to
curtail free immigration, which is their right under article
one, section 8.
I think that will be a compelling argument. And you will notice
the big difference between this ruling and "legislation from the
bench". A positive ruling on my argument SENDS THE DECISION
BACK TO THE REPRESENTATIVES OF THE PEOPLE, the Congress for
Legislation. Which is where it belongs.
Roe is an incredibly odd ruling with our Justices dividing
pregnancy into trimesters with different rules. Why trimesters,
is it because 9 is only divisible by 3? Where the hell does the
Constitution give them the right to give such a ruling? And it
is embarrassing and stupid for them to give us some
quasi-medical foolishness they made up out of whole cloth. And
Roe is only the most obvious example of legislation from the
bench. I am interested in seeing every instance of Judicial
Legislation challenged.
The guiding principle of the court should be to protect the
rights of citizens, and to protect the sovereignty of the States
to make the laws that are not enumerated in the Constitution as
Federal Matters. And then to leave Federal Matters in the hands
of the Congress. That is why I want Roe overturned.
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people."
#Post#: 8618--------------------------------------------------
Re: The exciting debate about the 14th amendment
By: Truman Overby Date: November 2, 2018, 7:41 am
---------------------------------------------------------
Steve -- Your president and vice president will be in Indiana
today. I plan on attending this magnificent and historic event.
Should I convey your best wishes to these two fine gentlemen?
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