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Former Trump Adviser Michael Anton: Constitution Does Not Require Birthright Citizenship

Former Trump Adviser Michael Anton: Constitution Does Not Require Birthright Citizenship

Anton, who also authored The Flight 93 Election article, argues: “The American people did not willingly, knowingly, or politically adopt birthright citizenship”

https://youtu.be/EOAkq6-xpg8

Michael Anton, a lecturer and research fellow at Hillsdale College and a former national security official in the Trump administration. Anton also was the pseudonymous author of The Flight 93 Election article that cause a stir prior to the 2016 election.

Earlier this month, Anton penned an op-ed in the Washington Post in which he argued that birthright citizenship was not a constitutional requirement.  The op-ed generated a great deal of discussion, prompting Anton to explain and defend his argument to critics on both the left and the right.

In his op-ed, Anton writes, Citizenship shouldn’t be a birthright:

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

. . . . Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.

That definition is the amendment’s very first sentence: “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 amendment clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart. No state has the power to deny citizenship, hence none may dispossess freed slaves.

Anton goes on to make a distinction between “subject to the jurisdiction” and “subject to American law.”

Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe.

Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.” That is true of any tourist who comes here.

The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don’t.

Anton offers the following solution:

The problem can be fixed easily. Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States, and thus not citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that’s unlikely.

It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens. Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?

The response was rapid and fiery, with Anton being called every name in the book: racist, xenophobic, bigoted, white nationalist, un-American, and etc.

The Washington Post, in a separate article, provides an overview of the criticism Anton faced from both the left and the right.  Much of this criticism is focused on the insertion of a bracketed “or” in a quote.

Here is the Editor’s Note on Anton’s WaPo op-ed:

Editor’s note: Michael Anton inserted the bracketed word “[or]” into a statement made by Michigan Sen. Jacob Howard during debate of the 14th Amendment on May 30, 1866, as recorded in the Congressional Globe. Anton wrote that Howard “clarified that the amendment explicitly excludes from citizenship ‘persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.’ ” Writers before Anton have made the same insertion, and Anton stands by his interpretation of Howard’s statement and maintains that the insertion of the word clarified rather than altered its meaning. You can read his full explanation in a blog post subsequently published by the Claremont Review of Books. Others believe the inserted word changes rather than clarifies the meaning of the quotation. Because the quotation can be read a different way, we should have asked Anton to publish it unaltered and then explain his interpretation rather than publishing it with the inserted word.

Vox has more:

It was not well received. At all. On the left, historians who study the 14th Amendment mocked his history at length on Twitter. On the right, the American Conservative — usually sympathetic to immigration restrictionism — ran an op-ed from a scholar at the Cato Institute, which does not share those views. And even the Federalist, known for the anti-anti-Trump tone of its writing, published a piece with the headline “Ending Birthright Citizenship Will Make Republicans Look Like the Party of Dred Scott.”

So why was Anton’s argument a bridge too far? Part of it was the radicalism of his proposal — asserting flatly that the president could end birthright citizenship with a wave of the pen and that “judges faithful to their oaths will have no choice but to agree with him.”

But part of it is because of the awkward position ending birthright citizenship holds on the restrictionist agenda. It’s always on the agenda — and many restrictionists see it as an important long-term solution to the ongoing problem of unauthorized immigration. But it’s never very close to the top, because it’s difficult as well as politically sensitive.

The blowback prompted Anton to write a response to his critics.

I expected the reaction to a recent op-ed I published calling for the end of birthright citizenship to be cantankerous. I even expected it to be hysterical—from the Left. I did not expect self-described “conservatives” to be just as hysterical as the Left, and to use precisely the same terms. “Nativist.” “Xenophobe.” “Bigot.” “Racist.” “White nationalist.” “White supremacist.”

One point I’ve been making for a while is that one faction of “conservatism”—let’s call it the anti-Trump wing, although the phenomenon long predates Trump—sounds and acts with every passing year more like a “conservative” subdivision of the Left. Like the Left, they don’t want to debate; they want to call those they disagree with evil. For what are those epithets supposed to mean, if not “evil”?

Whether or not to have birthright citizenship for the children of noncitizens is one such fundamentally political question. But like so many other political questions, this one is ruled out of bounds by scholars, lawyers, experts, pundits, and professional moralists.

The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.

He goes on to address concerns raised by his critics about his reading of the Howard quote.

Anton also appeared on Tucker Carlson to explain his position.

Here’s a partial transcript of this Tucker segment.

TUCKER CARLSON: Most of us grew up learning that the American Constitution guarantees birthright citizenship; in other words anybody born in this country even to parents who are here illegally or simply on vacation is a US citizen and due all the benefits of that for life. But is that really what the Constitution says?

Michael Anton does not believe it says that. He’s a lecturer at Hillsdale College and a former Trump advisor just wrote a piece in The Washington Post arguing that birthright citizenship is not a constitutional requirement Michael Anton joins us tonight. Michael, thanks all for coming on. I’m amazed that Post printed this piece. Good for them. You took a lot of heat for it; people were shocked by the idea that you would even question this but you made your case partly on legal grounds. Why does the Constitution not say what we’ve been taught it says?

MICHAEL ANTON: You have to read the whole 14th Amendment. There’s a clause in the middle that people ignore or they misinterpret — “subject to the jurisdiction thereof” — ‘thereof’ meaning of the United States. What they’re saying is, if you’re born on US soil subject to the jurisdiction of the United States, meaning you’re the child of citizens or the child of legal immigrants, then you are entitled to citizenship. If you’re here illegally, if you owe allegiance to a foreign nation, if you’re the citizen of a foreign country, that clause does not apply to you.

If you read the debate about the ratification of the 14th amendment, all the senators who are discussing what this is meant to do and what it means are very clear on this point; I tried to point that out. I expected the left would blow up and get angry which they did. What I didn’t expect, at least not to this extent, and what was very disappointing was how angry the so-called conservative intellectuals got with me, and they essentially said any opposition to birthright citizenship is racist and evil and un-American. . . .

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Comments

Another hand grenade.

A good one, too. My favorite type.

The Left will forget about the discussion during the debate over the amendment as they conveniently forget about The Federalist Papers and the Bill of Rights. For the Left, the Constitution has a built-in “amnesia clause” so they can forget the intent.

What is the difference between “subject to the jurisdiction” of the USA and “subject to the laws” of the USA?

    Tom Servo in reply to Ira. | July 29, 2018 at 6:19 pm

    Legally, there is none whatsoever, as per current Federal Code.

    And no Court in US history has ever found differently, either.

      plauer in reply to Tom Servo. | July 29, 2018 at 7:21 pm

      Not entirely true. People with work visas and others, even thoes who have permenent residency are not subject to military draft.

        Milhouse in reply to plauer. | July 29, 2018 at 8:19 pm

        That is not true. Whenever the US has had a draft, all residents, whether citizens or aliens, and whether here legally or not, were equally subject.

        The same applies to Selective Service registration today; if you live in the USA and are male between 18 and 25, you are legally required to register regardless of your citizenship or whether you’re here legally. People on work visas, of course, don’t live here, so they’re exempt; if they overstay their visas by more than 30 days they become (illegal) residents, and must register.

          V.Lombardi in reply to Milhouse. | July 30, 2018 at 6:29 am

          That is such a silly remark, easily verified to be untrue.

          Milhouse in reply to Milhouse. | July 30, 2018 at 3:15 pm

          No, V. Lombardi, you and plauer are the silly ones, condemned by your own words, because what I wrote is indeed easily verifiable as the exact truth. You arrogant POS didn’t even bother to verify it, did you? When you do so, I expect a full apology from you.

          Milwaukee in reply to Milhouse. | July 30, 2018 at 5:10 pm

          “…if they overstay their visas by more than 30 days they become (illegal) residents, and must register.

          Has anyone ever been charged, as being an illegal alien who has overstayed their visa and not registered for the draft?

          Does this apply to the DACA “children” Citizens, like the kid down the street, must register for the draft to get any Federal benefits, such as school loans. Are those who were brought here illegally by their felonious parents registering for the draft? Inquiring minds would like to know.

          Milhouse in reply to Milhouse. | July 30, 2018 at 7:34 pm

          I don’t think anyone, citizen or alien, legal or illegal, has ever been charged for not registering. But the duty to register exists, and it applies equally to all male US residents between 18 and 25, regardless of citizenship or legal status.

          Yes, it does apply to DACA people. And I assume they are registering at the same rate as anyone else. It’s impossible to know for sure, of course, because the selective service does not keep statistics on registrants’ citizenship or legal status, since these things are irrelevant for its purposes.

    artichoke in reply to Ira. | July 30, 2018 at 11:50 am

    The legislative history defines what the original intent of “subject to the jurisdiction” meant. Read the article.

    It used to be interpreted that way, then it was legislatively changed as I recall. So it could be legislatively un-changed. But that’s unlikely since it’s a hand-grenade, so Trump, who like Obama has “a phone and a pen”, could say he’ll enforce original intent and dare courts to overrule him.

    SCOTUS won’t.

      Milhouse in reply to artichoke. | July 30, 2018 at 3:17 pm

      First of all, the original intent of the drafters is irrelevant. What matters is the original meaning.

      And no, it was never interpreted that way, and there was never any legislative change. You have been lied to.

        Milwaukee in reply to Milhouse. | July 30, 2018 at 9:35 pm

        “First of all, the original intent of the drafters is irrelevant. What matters is the original meaning.”

        That is what we call a “knee slapper”. Milhouse, you made a funny, unexpectedly, I’m sure. Not your intention, but the original meaning is funny.

        When President Trump wants a travel ban on people from countries whose governments are shaky, and can not verify information, the courts look at his campaign statements and determine his intent was racist. A party in a state comes up with a redistricting plan, and the courts will strike it down, because the intent was racists. Whether or not the plan fails some predetermined criterion is irrelevant, because their intent was racist. But, when the framers of Obamacare say over and over this is not a tax, which was their intention, the Supreme Court can suddenly decide it is a tax. What you said should be true. However, it is not.

Christopher B | July 29, 2018 at 4:58 pm

It’s amazing to me that this is even subject to debate. If the 14th was intended to grant citizenship to anyone born physically in the US then it would have automatically and without further action made citizens of all the various Native American tribes. However, Congress felt it necessary to enact legislation granting citizenship to Native Americans. This clearly indicates that 14th amendment citizenship applied to former slaves only, as only they could derive citizenship by birth in the US and subject to its jurisdiction without requiring naturalization.

    Milhouse in reply to Christopher B. | July 29, 2018 at 5:46 pm

    You are wrong. Indians were not under US jurisdiction, i.e. not subject to US law. They were foreign nations with whom the US made treaties, exactly as it did with China or the UK. Indians could not be sued in US courts. This very question was heavily debated, and the amendment’s proponents explained that the “subject to their jurisdiction” clause was explicitly intended to exclude them, in addition to diplomats’ children. However it was intended to include the children of all immigrants who were subject to US jurisdiction, specifically including Chinese and Gypsies, even if the parents were not naturalized.

    maxmillion in reply to Christopher B. | July 29, 2018 at 5:53 pm

    Sorry! One of your down votes was by me, by accident– I agree with you. I clicked on the number 1, not the down thumb, trying to see who it is that is doing the down voting, and it registered another down vote.

Christopher B | July 29, 2018 at 5:06 pm

@Ira – everyone physically in territory (with a few exceptions) is subject to the laws of the government controlling that territory regardless of their immigration status. A citizen of another country can not commit a crime and escape punishment because they are not a citizen (unless they do it in one of the Left’s sanctuary areas). The authors of the 14th clearly expressed their opinion that ‘jurisfiction’ meant ‘holding no allegiance to another country’, the same position freed slaves were in when the 14th was adopted.

    Milhouse in reply to Christopher B. | July 29, 2018 at 5:54 pm

    No, Christopher B, both Howard and Trumbull explicitly said that so long as the children were subject to US jurisdiction they would be citizens, regardless of their parents’ citizenship, or of what allegiance foreign countries might claim from them. Those who selectively quote otherwise are being dishonest.

    In any case, the amendment’s drafters’ intent is irrelevant. No law depends on what its drafters think. It depends on what the words enacted actually mean, to a contemporary reader. And there’s no question that the words’ meaning to English-speakers of 1866-8 was that children born in the US to aliens would be citizens. Those words still meant the same thing in 1898 when Wong Kim Ark was decided.

      Tom Servo in reply to Milhouse. | July 29, 2018 at 6:07 pm

      Something that always really irks me is that whenever this topic comes up on some blog, the fact that “subject to the jurisdiction thereof” is firmly defined in the current US code is almost never brought up. Now, the Federal Code is created by Congress, and can be changed by Congress, but UNTILL it is, then in any court of law there is absolutely no question at all about what this phrase means. It has been strictly, legally, and officially defined in 31 CFR 515.329 and 31 CFR 515.330

      Currently, any person who is physically located in the United States is legally defined as being subject to the jurisdiction of the United States, regardless of their citizenship. Ambassadors and their staffs aren’t considered to be in the United States because their Ambassadorial residences are subject to the legal fiction that they are actually small parcels of their home country, surrounded by US soil.

        Milhouse in reply to Tom Servo. | July 29, 2018 at 6:57 pm

        But they’re not subject to US jurisdiction even when they’re outside their little enclaves. They can walk into the Oval Office, which is certainly in the United States, and still not be subject to US jurisdiction.

        Also, for the purpose of this amendment I’m pretty sure foreign embassies are considered US territory, just as US embassies in foreign countries are not. In other words, if a foreigner gives birth at a US embassy the child is not a 14th-amendment citizen, while if a US citizen gives birth at a foreign embassy in Washington the child is a 14th-amendment citizen (as opposed to a citizen by the grace of Congress, which can change its mind).

          ronk in reply to Milhouse. | July 30, 2018 at 11:31 pm

          “Also, for the purpose of this amendment I’m pretty sure foreign embassies are considered US territory, just as US embassies in foreign countries are not. In other words, if a foreigner gives birth at a US embassy the child is not a 14th-amendment citizen, while if a US citizen gives birth at a foreign embassy in Washington the child is a 14th-amendment citizen (as opposed to a citizen by the grace of Congress, which can change its mind).”

          so wrong, embassies are considered the country to which they belong, when Iran took over the US embassy in Tehran, they essentially invaded the US, US laws do not apply to the embassy grounds. children born they are not US citizens they are the citizens of the country the embassy belongs to.

          Milhouse in reply to Milhouse. | July 31, 2018 at 12:05 am

          ronk, And your basis for those confident assertions is?

          Because the fact is that you are wrong. Embassies, consulates, and other diplomatic spaces remain the territory of the host state. Whoever told you otherwise was wrong. Children born to alien parents in US embassies overseas are not thereby US citizens. And children born (to non-diplomat aliens) in foreign embassies here are. Oh, and US-registered ships and planes are not US territory either; children born there to aliens are not US citizens.

        jeastman in reply to Tom Servo. | July 30, 2018 at 11:04 am

        You claim that “subject to the jurisdiction” is clearly defined in the US Code, but your citations are to the Code of Federal Regulations, not the US Code. That regulation is based on a provision in the U.S. Code, which is the law actually passed by Congress. It says: “As used in this chapter, the term “United States person” means any United States citizen or alien admitted for permanent residence in the United States, and any corporation, partnership, or other organization organized under the laws of the United States.” 22 USC 6010. And the chapter deals with Cuba, not more broadly. Using this particular CFR provision for the broad claim you make is simply dishonest.

      V.Lombardi in reply to Milhouse. | July 30, 2018 at 6:38 am

      This is another silly argument. You refuted nothing the poster wrote. Intent is relevant in judicial review. The drafters stated explicit intent.

        Milhouse in reply to V.Lombardi. | July 30, 2018 at 3:25 pm

        The drafters’ intent is irrelevant. Laws, and certainly constitutional provisions, are interpreted according to their public meaning at the time of enactment, not according to the drafters’ intent.

        Which makes no difference here, since the drafters explicitly said that the native born children of Chinese aliens would be citizens.

      Close The Fed in reply to Milhouse. | July 30, 2018 at 10:55 am

      This assertion conflicts with rules of statutory interpretation. There is a long list of rules for this, one of which is, what did the legislature enacting it intend.

      Somebody missed that day in law school.

        Milhouse in reply to Close The Fed. | July 30, 2018 at 3:27 pm

        On the contrary, I was awake when taught that transcripts of legislative debate are not admissible in court, because they reflect only the views of those speaking. And that drafters’ intent is completely irrelevant, since they are not legislators. And that the constitution in particular is to be interpreted strictly by its objective public meaning, regardless of what anybody intended.

      Milwaukee in reply to Milhouse. | July 30, 2018 at 9:44 pm

      Your position is consistent with the way the laws have been interpreted.

      This does pose problems for us, and the US. There are some who come here for the sole purpose of giving birth here so their child has US citizenship. Witness a while back, a hotel in San Francisco, which catered to wealthy, pregnant, Chinese nationals. They came here, stayed in the hotel until they had their child and then returned home. Somebody was making a nice profit on that.

      The alternative is something like what France has. Being born in country doesn’t award citizenship. They have some of Algerian heritage, who are 2nd, 3rd, and 4th generation born in France, without being citizens. That makes assimilation even more difficult. If a person is going to be a citizen, there are huge advantages to the country if they assimilate into mainstream culture. My observation is that has not worked out well for either those of Algerian descent, or French society at large.

        Milhouse in reply to Milwaukee. | July 31, 2018 at 12:07 am

        If you wish to propose a constitutional amendment, go right ahead. But the current constitution clearly does allow that, and that was the explicit intention of the people who proposed it and who ratified it.

Article I Section 8 Clause 4: “[The Congress shall have Power] To establish an uniform Rule of Naturalization,…”

By implication, right from the beginning in 1789, there’s a distinction between “Naturalization” and other ways of being a citizen, probably consistent with the citizenship mentioned in Article II, Section 1, Clause 5: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;”

No need to even go to the 14th Amendment.

    Tom Servo in reply to maxmillion. | July 29, 2018 at 5:57 pm

    There are only two ways to become a citizen – either naturalization, or by being a citizen from the moment of birth. There is no 3rd way, either in law or in custom, and the belief that such a thing exists is one of the more bizarre things floating around the internet these days.

    There is no such thing as a person who is a citizen from the moment of their birth who is not a natural born citizen. The USA does not have multiple, parallel levels of citizenship, it never has.

    Milhouse in reply to maxmillion. | July 29, 2018 at 5:58 pm

    “Naturalization” means “being made natural”, as opposed to already being natural, i.e. by birth. This gives Congress the power to make rules for how someone not a citizen can become one. It does not give Congress power over the citizenship of those who already have it by birth.

    No need to even go to the 14th Amendment.

    You’re not making any sense. The 14th amendment overrides the original text, to whatever extent it contradicts it.

I don’t think Anton is racist or white supremacist or anything like that, but what he is, is dishonest. There is no justification for inserting that “or” into Jacob Howard’s clear statement that anyone but the child of a foreign ambassador would be covered. Nor is it honest to hide the fact that Lyman Trumbull explicitly said the native-born children of Chinese aliens would be citizens, exactly the same as the native-born children of German aliens. Chinese citizens in the US, of course, did owe allegiance to the Chinese emperor, and yet he insisted their children would be US citizens.

Nor is it honest to hide that he also explained why Indians were not under US jurisdiction, and therefore those born in the US were not citizens — because the US treats them as foreign nations, making treaties with them, and because they could not be sued in US courts. If Congress were to renounce US jurisdiction from illegal aliens, as Anton proposes, this would automatically mean they would be exempt from US law, and could commit any crime or tort they liked with impunity. Any attempt to declare that they were not subject to US jurisdiction but were still required to obey the law and subject to arrest, trial, and/or lawsuits, would contradict itself, because that is US jurisdiction.

Also dishonest is his assertion that Wong Kim Ark applies only to the children of legal residents. There is no possible basis for such a distinction, since legal aliens are no more and no less under US jurisdiction than illegal ones.

Whether citizenship should be a birthright is indeed a political question which it is legitimate to debate, but only in the same sense as whether to ban guns or “hate speech”, or whether to reintroduce slavery. All these changes would require amending the constitution, so the debate has to be in the context of proposing such amendments; it is illegitimate to discuss them within the context of the current constitution.

I noticed one of the linked articles was by one Mark Pulliam, who comes out with the ignorant claim that “only citizens can be drafted into the armed forces of the United States”. This is not and has never been true. Whenever the US has had a draft it has included aliens; today male alien residents between 18 and 25, including those residing here illegally, are required to register for selective service. The Selective Service system keeps no records of whether a registered person is a citizen or an alien, nor whether their residence is legal or illegal; these questions are irrelevant for its purposes, it has no use for the information, so it has no authority to collect it.

    Tom Servo in reply to Milhouse. | July 29, 2018 at 5:52 pm

    I agree with all of your points here, especially about the “Indians” (native americans). Well into the 20th century, our government put a great deal of effort into maintaining the legal fiction that they were members of independent, sovereign governments.

    I used to believe that this could only be changed by amending the constitution, but after study I have come around to the belief that this can indeed by altered by an act of Congress, just as the Native Americans were given voting rights by an act of Congress. (Congress also gave all Puerto Ricans automatic citizenship, in 1917) But the idea that Trump could change this with an Executive Order is both foolish and dangerous; that’s what Anton has been pushing.

    V.Lombardi in reply to Milhouse. | July 30, 2018 at 6:38 am

    You wrote much sophistry for a simple issue.

      Milhouse in reply to V.Lombardi. | July 30, 2018 at 3:28 pm

      You’re the sophist, and the fool. Have you looked up yet whether aliens are subject to the draft? I’m expecting an apology when you do.

        CaptTee in reply to Milhouse. | July 30, 2018 at 10:15 pm

        I had a co-worker who immigrated from Germany as a child and as he was about graduate from college he applied to join the Army as an officer. It was then he found out that he didn’t automatically become a citizen when his parents became citizens. His application was rejected because he was an alien. When he graduated, his student deferment from the draft expired and he was drafted. After returning from Vietnam, be became a citizen.

Amending our constitution is extremely dangerous as there are very few writers who can successfully navigate the artificial shoals of our courts.

    Milhouse in reply to MSO. | July 29, 2018 at 6:52 pm

    What’s that got to do with it? The courts don’t get to rule on amendments. Any amendment passed by 2/3 of each house of congress, and that the secretary of state certifies has been ratified by 38 state legislatures is by definition part of the constitution, and overrides anything previously in the constitution, and of course any statute or treaty, that contradicts it.

      MSO in reply to Milhouse. | July 30, 2018 at 7:27 am

      An amendment that was intended to ensure full citizenship to former slaves accidentally grants citizenship to the children of illegal aliens.

        Milhouse in reply to MSO. | July 30, 2018 at 3:29 pm

        a) it was no accident, but the explicit intention. b) even if it had been an accident, it would have had nothing to do with the vagaries of courts, but with the explicit meaning of the words enacted.

    tom_swift in reply to MSO. | July 29, 2018 at 6:59 pm

    can successfully navigate the artificial shoals of our courts.

    I presume this refers to the emanations of penumbras which the courts will be able to find in any but the most carefully crafted texts.

stevewhitemd | July 29, 2018 at 7:44 pm

Unfortunately I can’t read the WaPo article as I’m not a subscriber. Can someone tell me whether Mr. Anton addresses the USSC Wong Kim Ark decision? If he can’t get around that then the rest of his piece is wishful thinking.

    Milhouse in reply to stevewhitemd. | July 29, 2018 at 8:25 pm

    Yes, he claims (ridiculously) that it applies only to the children of legal immigrants, not those of illegal ones. He doesn’t explain what possible difference that could make, since even by his spurious interpretation of “jurisdiction”, it applies equally to legal and illegal aliens. He claims (wrongly) that anyone owing allegiance to a foreign country is not under US jurisdiction for the purposes of the 14th amendment; but both legal and illegal aliens owe exactly the same allegiance to their country of citizenship, and so do their US-born children, so how could Wong Kim Ark possibly have distinguished them?

      jeastman in reply to Milhouse. | July 30, 2018 at 11:26 am

      Milhouse claims that Anton’s position on Wong Kim Ark is ridiculous, because the law either applies to all immigrants (legal and illegal) or to none. But the authors of the citizenship clause explicitly drew a distinction between full and complete jurisdiction (owing allegiance) and partial/territorial jurisdiction (merely being subject to the laws while physically present in the U.S.). Not a hard concept to understand, but if you want a more complete explanation, see https://amgreatness.com/2018/07/26/dred-scott-seriously/. Wong Kim Ark’s parents were legally domiciled in the U.S., not just visiting. They had exercised their natural right to expatriate from their native country (even if China refused to recognize that). And in doing so, and with our permission, had taken up a new domicile in the US, manifesting as much allegiance to their new country as we allowed at the time.

        Milhouse in reply to jeastman. | July 30, 2018 at 3:55 pm

        But the authors of the citizenship clause explicitly drew a distinction between full and complete jurisdiction (owing allegiance) and partial/territorial jurisdiction (merely being subject to the laws while physically present in the U.S.).

        No, they did not; their example of who would be covered was the child of Chinese parents, and their example of who would not was a Navajo.

        Wong Kim Ark’s parents were legally domiciled in the U.S., not just visiting. They had exercised their natural right to expatriate from their native country (even if China refused to recognize that). And in doing so, and with our permission, had taken up a new domicile in the US, manifesting as much allegiance to their new country as we allowed at the time.

        Irrelevant. They still owed exactly the same allegiance to the Chinese emperor.

        You can’t possibly be suggesting that our permission or lack thereof for them to settle here could affect their debt of allegiance to the emperor. How could we possibly absolve them of that? What did it have to do with us? Whatever effect you think their leaving China had, must apply equally to every immigrant, legal or not, since it’s not a matter for US law; our laws can only affect our jurisdiction, not any other country’s.

      artichoke in reply to Milhouse. | July 30, 2018 at 2:01 pm

      “both legal and illegal aliens owe exactly the same allegiance to their country of citizenship”

      Milhouse, you’re exactly right. But then neither is covered by the 14th and so we can choose to make their offspring citizens or not. I think we should choose not to make offspring of illegals citizens, and we might consider making the offspring of legal permanent resident aliens citizens, but I definitely would exclude people here on temporary visas including working visas.

        Milhouse in reply to artichoke. | July 30, 2018 at 3:42 pm

        No, artichoke, you’re not paying attention. Wong Kim Ark says we cannot choose; the native-born child of Chinese nationals is automatically a US citizen regardless of what we want. Now this Anton clown’s way around this is to pretend it would apply only if the parents were here legally; but as you just admitted that distinction is impossible, because the parents’ allegiance to China would be the same whether they were here legally or not.

Finally, someone dearest to state the obvious.

No part of the constitution was intended as a national suicide pact.

PersonofInterests | July 30, 2018 at 11:13 am

America needs to review these “Urban Legends” and folklore like “Birthright Citizenship” and put the debate before We the People; put it on the ballot as a referendum, a Constitional Amendment, or other. And most definitely, get our so called elected “Representatives” on record so we know who to remove from office because of their tyranny displeases us.

    artichoke in reply to PersonofInterests. | July 30, 2018 at 2:04 pm

    I’d rather see Trump handle it behind the scenes without all the mess and divisiveness of a “national debate” supervised by leftist federal judges in every tricky way they can think of.

    Also, I wish people would stop using “We” as a direct object. I’d say “Us the People”, as the writers would have if they were not in the nominative case.

    Constitutional amendments never go on a ballot, you idiot. They are none of the business of your “we the people”. The constitution does not recognize referendums for any purpose. Amending the constitution is the business of 2/3 of each house of congress and 3/4 of state legislatures, and nobody else.

      CaptTee in reply to Milhouse. | July 30, 2018 at 10:22 pm

      He probably got the idea that Federal Constitutional Amendments go on the ballots, because he has seen so many State Constitutional Amendments on ballots.

      We have a lot of Amendments in Florida that do not belong in the State Constitution. That is because people got tired of laws not getting passed. Sadly, most Amendments passed, until someone slipped one in raising “passing” from 50% to 60%. Fortunately, that one passed! Now they don’t all pass.

You can’t draft tourists arriving on a foreign country’s passport, because they are citizens of another country and not “subject to the jurisdiction” of the United States, just as Americans traveling aboard have to obey other countries’ laws, but are not “subject to the jurisdiction” of the other countries.

    Milhouse in reply to CaptTee. | July 31, 2018 at 12:12 am

    Wrong. Subject to the jurisdiction means having to obey the laws. Everyone in the US except diplomats are equally subject to US jurisdiction. The moment a non-diplomat American sets foot in another country he is subject to its jurisdiction.

    Tourists are not subject to the draft because they don’t live here, but aliens who do live here, legally or illegally, are subject to the draft.

    And there’s no legal reason Congress couldn’t decide to draft tourists too; it would dry up the tourist trade, but that’s not a legal reason.

simple: non citizens birthing in America have non citizens offspring. They are subject to another legal jurisdiction (state or nation), just pregnant invaders in America. No way citizens, nor their offspring.

Believe otherwise, you are doomed to the true foolishness that President Trump preaches against–USA immigration laws are the laughing stock of the world–pure stupidity.

Congress must fix and fund a massive wall. Shut down the government, with no back pay.

    Milhouse in reply to Candid. | July 31, 2018 at 12:47 pm

    You have no idea what you are talking about, and should shut up. You have no idea what the word “jurisdiction” means.

    And you prattle about our founders’ values while ignoring that citizenship by soil rather than blood was one of those core values that they thought important.

      jeastman in reply to Milhouse. | July 31, 2018 at 7:04 pm

      Actually, Milhouse, it is you who doesn’t seem to understand the issue. The common law on “citizenship by soil,” as you call it (the actual phrase is jus soli) had two components — those born on the King’s soil were the King’s subjects, and the subjects owed the King perpetual allegiance. The Declaration of Independence fundamentally rejects the second component–indeed, it is the most eloquent rejection of that aspect of jus soli ever penned in human history. And by grounding governments on consent, it goes a long way toward rejecting the first as well.

      You also seem to have a hard time understanding the basic argument about “subject to the jurisdiction.” The phrase has two meanings–subject to the complete, allegiance-owing jurisdiction; and subject to the partial, territorial jurisdiction. The issue, then, is which of those meanings was intended by the authors of the 14th Amendment and understood by those who ratified it. The evidence is pretty compelling that it was the former. Senator Howard was asked point blank a question about that, and he said, the full and complete jurisdiction. And the ratification debates are full of evidence that those who ratified the 14th Amendment understood that they were codifying the 1866 Civil Rights Act, which by its terms (“not subject to any foreign power”) embraced the former definition as well.

        Milhouse in reply to jeastman. | August 1, 2018 at 4:03 am

        Jeastman, I understand your false assertions just fine; you don’t seem to understand that they are false. The founders took citizenship by soil absolutely for granted. That they believed it was possible to renounce one’s allegiance, however obtained, for sufficient cause doesn’t change that.

        Subject to the jurisdiction has only one meaning; if someone has to obey the laws, and can be hauled into court if they don’t, then they are under the full and complete jurisdiction. Senator Trumbull explicitly said this would cover the US-born children of Chinese aliens, and that the term only excluded those who were not subject to US laws, i.e. diplomats and Indians. His specific example to show that Indians were not subject to US jurisdiction was that they could not be sued in US courts.

I gave you one example of the founders’ rejection of jus soli, which you now concede was true, and yet you assert my claim was a “false” assertion.
You also claim, falsely, that “subject to the jurisdiction has only one meaning.” In support of that proposition, you’ve altered what you claim Trumbull “explicitly said,” ignored his other statements more directly on point, and don’t address at all what Howard said. But happily, there is a record of what was said, and the other readers can judge for themselves which of us has made “false assertions.”

When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, Senator Lyman Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” juris­diction, “[n]ot owing allegiance to anybody else.” Congressional Globe, 39th Cong., 1st Sess., 2893 (May 30, 1866). And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now”[5] (i.e., under the 1866 Act). They well understood the difference between partial, territorial jurisdiction and “full and complete jurisdiction.” The two are not the same.

As for the response (it was by Senator Conness, not Trumbull) on the Chinese and Gypsie question, Cowan did not use the phrase “Chinese aliens,” as you claim. He said “Chinese immigrant”. And he specifically acknowledged that they were different than temporary visitors (“sojourners”). Here’s what he said, acknowledging the double meaning of “subject to the jurisdiction” that you say doesn’t exist: “Have they any more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws….but he is not a citizen in the ordinary acceptation of the word.”

Your substitution of the word “alien” for “immigrant” is misleading, and significant, because “immigrant” indicates that the person was here lawfully and had taken up an allegiance to his new country. “Alien,” on the other hand, placed them in the category of a mere “sojourner,” a temporary visitor who was still entitled to the protection of, and bound to comply with, our laws while physically present in the territory of the U.S., but not owing allegiance.

Conness’s response was to the question about the children of Chinese “immigrants,” not “aliens.” And to that question, he said the children would be citizens no matter the parentage because, no matter the country of origin, the children of anyone subject to the complete jurisdiction of the U.S. would be citizens. Children of diplomats not covered; children of “Indians” not covered because they were subject only to the partial jurisdiction of the U.S.; children of temporary sojourners not covered, because they were likewise subject only to the partial jurisdiction of the U.S., owing allegiance to a foreign power (to use the language of the 1866 Act, which the 14th Amendment was intended to codify.

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