Opinions on Text of the 14th Amendment Differ. One side has a point.
Ian Millhouser correctly denounces not only Trump’s assault on the 14th amendment but also reporters who print absolutely false assertions.
The issue is Trump’s clearly false claim that he can eliminate birthright citizenship by executive order.
In fact “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States … ” – US Constitution Amendment 14.
Millhouser’s post is too good to summarize, click the link.
Importantly he nails The New York Times tweeting the absolutely 100% false assertion that ” It is unclear whether he can do so unilaterally”.
He also catches CNN falsely saying it is “unclear” and NPR falsely claiming it”isn’t settled”.
The FBI has found no clear evidence that they are deliberately undermining the US Constitution and the very idea of Constitutions. In fact (as in the case of the dread New York Times headline) disgracefully printed 2 years + 1 day ago) they consider it safe to assert a negative. The principle that one can’t prove a negative is turned on its head. They assume it is safe to write and say “unclear” and to say “isn’t”.
I absouutely reject the claims that it is unclear whether the reporters who did this shouldn’t be roasted over a slow fire and that it isn’t settled whether the editors who allowed them too shouldn’t be skinned alive.
I just want to add a few comments.
First Millhouser doesn’t waste space noting that Donald Trump has no legislative authority whatsoever. He claims to be able to rewrite the Constitution by executive order. He can’t even rwrite the law. An executive order must be instructions as to how to faithfully execute the law written by Congress.
I think conservatives (if any read angrybearblog) may suspect me of hypocrisy since I never denounced Obama’s executive orders. They would be wrong. Obama (and his hardworking staff) always explained the basis in law and precedent for his orders. Even DAPA and DACA which seemed extreme even to sympathetic observers, were clearly authorized by the Immigrationa and Naturalization Act which grants the executive vast discretion and legally the same as an uncontroversial executive order signed by George H W Bush (not to mention that DACA was uncontroversial when issued). DAPA was blocked by an extremist judge not on the grounds that it went beyond the INA but on the grounds that it wasn’t preceded by a period of public comment as required by some other law (I think it’s called the administrative procedures act).
In contrast Bush’s absurd claim that he could create military commissions by executive order was rejected by a Conservative Supreme Court.
Another minor point — the “subject to the jurisdiction of ” phrase clearly was intended to say that Native Americans who live in territory not claimed by any great power or by the US Government are not US citizens. This is clear from the relevant context in the main body of the Constitution “excluding Indians not taxed” (search for the dread words “three fifths” and scroll left past a comma). The borders of the USA were not clearly defined when the 14th amendment was drafted. There were treaties with Mexico, Russia, and the British Empire which roughly defined approximately the current borders (except for Hawaii, Guam, Puerto Rico, the US Virgin Islands, American Samoa and what’s left of the Norther Marianas Islands after typhoon Yutu). There were also treaties with native American tribes which hadn’t yet been broken which defined a smaller but aggresively expanding country. The 14th amendment said that, for example, people born in Oklahoma are not necessarily US citizens (don’t worry doesn’t apply to the native born president eligible Senator Professor Elisabeth Warren because that treaty was broken sooner than she was born).
By the way, Don Jr, Erik, Ivanka and Barron don’t have to worry that their dad will deprive them of US citizenship. He is, to our everlasting shame, a US citizen who lived in the USA at least 6 years after turning 14, so they are native born US citizens just like Rafael “Ted” Cruz and just as Barack Obama would be even if he had been born in Mombassa.
Finally Millhouser undestated his case again when he wrote
the Fourteenth Amendment’s words are clear, and the Supreme Court settled any lingering doubts over their meaning in its 1898 opinion in Wong Kim Ark.
In fairness, Wong Kim Ark was not a unanimous opinion — it was a 6-2 decision handed down over a dissent from Chief Justice Melville Fuller. In his dissent, Fuller argued that the Fourteenth Amendment secretly contains a missing word. “Born in the United States, and subject to the jurisdiction thereof,” he claimed, means that a person was “born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is, as completely as citizens of the United States” (emphasis added). Thus, the child of non-citizens may not be “completely” subject to American jurisdiction because they also may also be “subject” to a “foreign power” — their parents country of origin.
The implications of this dissent are simply breathtaking. Had it become the law — and just in case this point is unclear, a dissenting opinion is, by definition, not the law — Fuller’s dissent would establish that any child of non-citizens, even the child of two lawful permanent residents, would not be a citizen.
In fact, the dissent would imply that Don Jr, Erik, Ivanka, Barron and my daughters are not US citizens because their mothers weren’t at the times of their birth. If any taint of foreigness were poison, than one foreign citizen parent would be enough for exclusion.
But, fortunately, Fuller completely invalid assertion of “completely” was absurd and outvoted 6 to 2.
Trump said an Act of Congress can undo this 14th Amendment provision. Our link shows Trump is lying about this too:
‘Wong Kim Ark involved a man born to Chinese nationals within the United States. At the time, the United States had a treaty with China which provided that “nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.” Federal naturalization law permitted “free white persons” and “persons of African descent” to become citizens, but contained no such provision allowing people of Chinese descent to obtain citizenship. Sixteen years before Wong Kim Ark was decided, moreover, Congress passed a law providing that “hereafter no state court or court of the United States shall admit Chinese to citizenship.”
Congress, in other words, made it quite clear that it did not “consent” to any effort to extend citizenship to people of Chinese descent — indeed, it did so with far more clarity than modern immigration law provides regarding the children of undocumented immigrants. But Wong Kim Ark held that these anti-Chinese laws did not matter. Children of Chinese parents born in the United States are American citizens.’
The “subject to the jurisdiction thereof” clause had a clear and well established meaning going back to medieval English law. Not only was it intended to fudge the Native American issue, but under ancient English law that EXACT PHRASING referred to two classes of people: (1) those caught behind enemy lines (think 100 Years War in the 14th century) and (2) children of diplomats born overseas. Trump is an idiot.
Also see Akhil Reed Amir (con law at Yale): “America’s Constitution: A Biography” (2006), pages 380-383.
I am sure that Ian Millhiser is very sure of his interpretation of the 14th Amendment to the US constitution. The New York Times, NPR, and CNN are not so sure. I note that these liberal media outlets do not usually side with President Trump.
If the US Supreme Court was the sole arbiter of the meaning of the US constitution then I would agree. But in extraordinary cases the court has been ignored by Presidents.
In 1832 President Andrew Jackson ignored a then sitting US Supreme Court’s ruling. “In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: “John Marshall has made his decision; now let him enforce it!” This derives from Jackson’s comments on the case in a letter to John Coffee, “…the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate”.[4]”
See: https://en.wikipedia.org/wiki/Worcester_v._Georgia
And in 1861 President Abraham Lincoln chose to ignore a writ by Chief Justice Taney. “Ex parte Merryman (1861) was actually not a Supreme Court case, although it was heard by then-Chief Justice Roger Taney (see circuit riding). Taney protested Lincoln’s secret notice granting military personnel the power to suspend the writ of habeas corpus. This case is an example of a U.S. President ignoring a court’s ruling on the grounds of necessity.”
See: https://en.wikipedia.org/wiki/Supreme_Court_cases_of_the_American_Civil_War
Actually a case can be made that President Lincoln just interpreted the constitution to mean that in the case of a rebellion, he could suspend habeas corpus in any state, not just in those states in rebellion. Nonetheless he ignored Chief Justice Taney’s writ.
The 14th Amendment to the US constitution was adopted on 9 July 1968. Its purpose was to make it clear that the recently freed slaves were US citizens, that they were to be counted for the purposes of setting the number of representatives, to deny the rights of citizenship to anyone who had served in the rebellion of the confederate states, and t0 renounce any obligation for the debts of the confederate states.
See: https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
The US Supreme Court has interpreted in other ways, but those precedents are not binding on the currently sitting US Supreme Court. They can accept those as precedent or ignore them, just as they have done in recent cases on other issues.
Is it extraordinary for parents to slip into this country illegally and then demand that their children be classified as citizens, thus accelerating their own path to citizenship? Or are they subverting our law?
The United States has a well defined system of legal immigration which works very well. Foreigners should be REQUIRED to use that system.
JimH,
The issue of citizenship for the children of “illegal immigrants” was specifically addressed in the 14th Amendment debates. Recall that the importation of slavery after 1808 was expressly prohibited by the Constitution; nevertheless, slaves continued to be smuggled into this country illegally. So they were illegal immigrants. Those slaves illegally brought into this country had children. The 14th Amendment was supposed to ensure that the children of those “illegal immigrants” were granted citizenship status. This issue was part of the 14th Amendment debates.
2slugbaits
Shipmasters probably did continue to import a small number of slaves to America after 1807 . But they broke the law, not the slaves which they had transported.
By 9 July 1868 the 14th Amendment to the US constitution did not have to concern itself with a slave’s date of entry into the country. They were already free.
I believe that your argument is smoke and mirrors. But you certainly get points for style.
JimH,
You’re misunderstanding. The 14th Amendment debates were about the children of slaves who were illegally in this country. And there were quite a few illegally smuggled into the country after 1808. This is relevant regarding Trump’s claim that children of undocumented immigrants should not be granted citizenship because their parents are here illegally. It’s a direct analogy. Not only do I get points for style, but I’ve actually read a fair amount on the subject long before this current dust up. The contemporaneous debates on the 14th Amendment are easily accessible.
2slugbaits
Educate me. Give me your best link.
The debates are here:
Thank you
2slugbaits,
You wrote: “The issue of citizenship for the children of “illegal immigrants” was specifically addressed in the 14th Amendment debates.”
I challenged you to educate me by providing your best link supporting your claim.
You have provided a link to the debates of the 14th Amendment.
I find no discussion of the children illegal immigrants in those debates. Which is what I expected since all the slaves had already been freed by the 13th Amendment.
Too bad, that would have made for interesting reading. Nonsensical but interesting anyway.
JimH
If you read through the debates that fast, you are a faster reader than I. I admit I ponder and reread lines to grasp their full meaning and context. I want to own them as mine before I commit to them. Anyhoo; here are the cliff notes which appear to make sense to me. It is no substitute for reading the full text. It should answer your questions. https://www.nationalreview.com/2015/08/birthright-citizenship-fourteenth-amendment-constitution-supreme-court/
Run,
He doesn’t want his questions answered. He still cannot figure out that because the slaves were freed before the 14th Amendment does not mean all the slaves were US citizens. And that’s because he does not want to figure it out.
Run75441,
This was the response from 2slugbaits which provoked my challenge to 2slugbaits.
“The issue of citizenship for the children of “illegal immigrants” was specifically addressed in the 14th Amendment debates. Recall that the importation of slavery after 1808 was expressly prohibited by the Constitution; nevertheless, slaves continued to be smuggled into this country illegally. So they were illegal immigrants. Those slaves illegally brought into this country had children. The 14th Amendment was supposed to ensure that the children of those “illegal immigrants” were granted citizenship status. This issue was part of the 14th Amendment debates.”
And later this:
“You’re misunderstanding. The 14th Amendment debates were about the children of slaves who were illegally in this country. And there were quite a few illegally smuggled into the country after 1808. This is relevant regarding Trump’s claim that children of undocumented immigrants should not be granted citizenship because their parents are here illegally. It’s a direct analogy. Not only do I get points for style, but I’ve actually read a fair amount on the subject long before this current dust up. The contemporaneous debates on the 14th Amendment are easily accessible.”
Notice that he made the claim that the congressional debates over the 14th Amendment to the US constitution included a discussion of slaves imported after 1808.
I like historical references, and I congratulated him or her on style. A clarification of what the congressmen thought at the time would be informative. I had never heard such a claim and I asked him for his best link. He provided a link to the debates on the 14th Amendment.
I skimmed over the debates and then did various searches. (1808, 1807, slaves, imported, brought, immigrants, children, illegal and others.) NONE of those searches returned anything remotely resembling what 2slugbaits claimed.
My inquiry to 2slugbaits was NOT about the current political discussions. All of them are tainted by party politics. (Whether conservative or liberal) I was somewhat surprised that some of the liberal media outlets found that the answer was not clear. But that was a curioscity, nothing else.
My inquiry to 2slugbaits DID concern his conflation of the rights of slaves imported after 1808 with the 14th Amendment debates. I still have not seen any confirmation of that!
The article that you link to, does not cite anything from the debates about slaves arriving after 1808 either.
I would be glad too read a confirmation from those debates if you can cite page and paragraph. Good luck with that.