Armed Polite Society
Main Forums => Politics => Topic started by: sumpnz on January 24, 2020, 02:27:12 AM
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https://hotair.com/archives/jazz-shaw/2020/01/23/come-birth-tourism-restrictions/
Seems to me the easiest and most Constitutionally defensible solution is to restrict birthright citizenship to children of citizens, permenant residents, and possibly immigrant visa holders. That would eliminate it for illegal immigrants, birth tourists, etc which is probably the vast majority of the problem.
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It is a problem that needs to be addressed. I'm not sure it can be fixed without a Constitutional amendment. The 14th Amendment says:
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.
On the one hand, it says all persons born in the United States shall be citizens. But it then talks about the state in which they reside, and a tourist is not a resident of any state. So you may be onto something.
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I suspect that given the current trend in American politics any attempt to deny citizenship to people born in the US of foreign parents here on tourist visa's would end up before the Supreme Court. That's probably appropriate as well, given this isn't exactly a traffic ticket.
Lawyers would probably talk themselves into knots about that very clause: "the State wherein they reside". What is residence? If the parents get an electric bill, does that count? People can reside in Hotel's for years, how long is a minimum time for residence? I'm sure there's a variety of other quibbles that could be made.
At very first glance, and being aware of the issues we face with Birth tourism, I tend to think if there's any question at all in how a law is written, the USSC should default to the position which gives the government less power and the individual more. Which in this case would be that anyone born here is residing here as of that instant, and a citizen. If it's really that much of an issue, change the amendment.
If you think about it on the 18 year timescale though, Russian and Chinese Birth tourism is a way in which they really could affect our elections, as opposed to "hacking" the DNC.
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I seem to recall the authors of the amendment being on record that that wasn't their intent.
It's been awhile since i looked into the issue so any links I kept are gone.
The "subject to the jurisdiction thereof" has a specific meaning also.
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I do worry about the effects of birth tourism, as much so as the effects of baby birthers sneaking in from the southern border popping out kids on US soil. I should read up on it more, but I'm really not sure what the benefits are to the birth tourism people. These are generally very wealthy people, so it doesn't seem they're doing it for "free stuff". Are there really solid reasons (nefarious or not) behind it, or is it some kind of international rich person's fad?
I don't like to see the system taken advantage of. I say this as a child born to non-citizen parents. I was born soon after my parents arrived on American soil. They became citizens as soon as they could, but not before I made my appearance.
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Get rid of 'free stuff' and most of the issues of immigration, border fences, and birthright citizenship become non-issues.
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These are generally very wealthy people, so it doesn't seem they're doing it for "free stuff". Are there really solid reasons (nefarious or not) behind it, or is it some kind of international rich person's fad?
Seems like it would make seeking education and work in the US much easier for the kid. Also gives them a ripcord to pull if things go sideways in their country.
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If you think about it on the 18 year timescale though, Russian and Chinese Birth tourism is a way in which they really could affect our elections, as opposed to "hacking" the DNC.
I don't know about that. Anyone have numbers?
While I do agree it's a problem, I have a hard time believing it's more than a drop in the bucket compared to citizen births.
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Seems like it would make seeking education and work in the US much easier for the kid. Also gives them a ripcord to pull if things go sideways in their country.
That's a good point. Before I left Santa Barbara, my condo complex, near UCSB, was getting bought up by Chinese and ME parents who were sending their kids to UCSB. They found buying a condo (vs renting) a good investment, so were basically buying their kids condos and Beemers to attend school. Given how may of them want to give their kids a US education, I can see that "plus" for the tourism.
If you think about it on the 18 year timescale though, Russian and Chinese Birth tourism is a way in which they really could affect our elections, as opposed to "hacking" the DNC.
[Dons tinfoil hat] Watching Fox Business this morning, they said China, Russia, and Turkey(?) were by far the greatest percentage of birther tourists. Again, tinfoil in place, China, for example is a very old country. Despite many "governments" over the last couple thousand years, I suspect that culturally, thinking in terms of twenty years ahead is the same as us, in our ~250 year old country, thinking two years ahead. I could easily seeing them looking at a 20-30 year plan to grow US citizen Chinese assets.
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I suspect that given the current trend in American politics any attempt to deny citizenship to people born in the US of foreign parents here on tourist visa's would end up before the Supreme Court. That's probably appropriate as well, given this isn't exactly a traffic ticket.
Lawyers would probably talk themselves into knots about that very clause: "the State wherein they reside". What is residence? If the parents get an electric bill, does that count? People can reside in Hotel's for years, how long is a minimum time for residence? I'm sure there's a variety of other quibbles that could be made.
I know I'm a simple-minded sort of chap but, IMHO, the notion of a "tourist" visa might be a good place to start when asking who is a resident and who isn't. The stickier wicket will be the illegal aliens, who ARE residents -- just not legally so.
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"All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States ..."
That "and" I think is key. Are aliens present illegally or on a non-immigrant visa "subject to the jurisdiction" of the USA? IANAL and all, but I think a good argument can be made that the answer is no.
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If you can be hauled before a court in the US to answer a claim or charge, you are subject to its jurisdiction.
The problem with trying to interpret out birthright citizenship is that the clause was specifically drafted to ensure children of people who arguably weren’t citizens (slaves) were in fact deemed to be citizens. That being the history and intent of the clause, it’s near impossible to twist the language to fit modern immigration issues.
New rules that don’t specifically make the children of non-citizens into citizens require new text.
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If you can be hauled before a court in the US to answer a claim or charge, you are subject to its jurisdiction.
The problem with trying to interpret out birthright citizenship is that the clause was specifically drafted to ensure children of people who arguably weren’t citizens (slaves) were in fact deemed to be citizens. That being the history and intent of the clause, it’s near impossible to twist the language to fit modern immigration issues.
New rules that don’t specifically make the children of non-citizens into citizens require new text.
Bull.
I got a speeding ticket in Iceland one time and that doesn't make me a citizen of Iceland, though I'm obligated to pay it.
Traffic camera, for the curious. for 3 MPH over. Not paying proper attention while driving in KMH vs MPH is expensive.
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It is a problem that needs to be addressed. I'm not sure it can be fixed without a Constitutional amendment. The 14th Amendment says:
On the one hand, it says all persons born in the United States shall be citizens. But it then talks about the state in which they reside, and a tourist is not a resident of any state. So you may be onto something.
A point of contention is what the authors meant by "subject to its jurisdiction" means. Despite Deselby's generic assertion, it seems authorities are divided on this point. An authoritative text I have has stated that one author of the 14th am. included a phrase specifically stating it did not apply to immigrants or visitors. This wording did not make it into the final draft....possibly because it was believed redundant considering a >possible < interpretation of "subject to its jurisdiction."
Complicating the matter is that there are atleast two prior court decisions stating that, indeed, if you are born in America, then you are a citizen. So, "stare decisis."
It isn't as easy to suss out true intents as one might think hope .... >:D
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A point of contention is what the authors meant by "subject to its jurisdiction" means. Despite Deselby's generic assertion, it seems authorities are divided on this point. An authoritative text I have has stated that one author of the 14th am. included a phrase specifically stating it did not apply to immigrants or visitors. This wording did not make it into the final draft....possibly because it was believed redundant considering a >possible < interpretation of "subject to its jurisdiction."
Complicating the matter is that there are atleast two prior court decisions stating that, indeed, if you are born in America, then you are a citizen. So, "stare decisis."
It isn't as easy to suss out true intents as one might think hope .... >:D
Sort of like the final wording of the Second Amendment.
As if we needed proof that if there's any way for future generations to misconstrue the intent of laws if the drafters leave out the parts they consider "redundant" -- they will always default to misinterpreting them.
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Always read a proposed law with the worst possible interpretation and intent in mind.
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Bull.
I got a speeding ticket in Iceland one time and that doesn't make me a citizen of Iceland, though I'm obligated to pay it.
Traffic camera, for the curious. for 3 MPH over. Not paying proper attention while driving in KMH vs MPH is expensive.
Is this for real? “Subject to the jurisdiction of” (which you were in Iceland) is part of the text of the US constitution that specified criteria for citizenship.
What possible relationship could this example have to Icelandic rules about citizenship? I can’t see how any of this is remotely relevant to what we are talking about.
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A point of contention is what the authors meant by "subject to its jurisdiction" means. Despite Deselby's generic assertion, it seems authorities are divided on this point. An authoritative text I have has stated that one author of the 14th am. included a phrase specifically stating it did not apply to immigrants or visitors. This wording did not make it into the final draft....possibly because it was believed redundant considering a >possible < interpretation of "subject to its jurisdiction."
Complicating the matter is that there are atleast two prior court decisions stating that, indeed, if you are born in America, then you are a citizen. So, "stare decisis."
It isn't as easy to suss out true intents as one might think hope .... >:D
The authorities are not divided on this. The relevant Supreme Court decision is clear on the question. There are no competing Supreme Court decisions.
The intent of the clause was to ensure people born in the US were citizens, even if their parents were not (it was a direct response to the dredd Scott decision.
The history of the amendment is why it gets interpreted this way, and why it can’t be interpreted away. It does what it was intended to do - confer citizenship on people born in the US even when their parents may not have been citizens.
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Sorry, DeSelby, the authorities are divided on this, because .... they ARE divided.
It happens when authorities DISAGREE with each other. It happens.
Take the 2nd amendment. To me, it's intent is 100% clear. But experts -- er, "experts" have disagreed.
I've seen it happen. It's happened on the 14th, too, like it or not. It's what "subject to its jurisdiction" meant at the time .... versus two court decisions. And with regard to that quoted phrase, what the authors intended, versus court decisions.
I'm not saying you're wrong .... I don't have a dog in the fight, just an ant.
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Always read a proposed law with the worst possible interpretation and intent in mind.
Excellent advice.
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The authorities are not divided on this. The relevant Supreme Court decision is clear on the question. There are no competing Supreme Court decisions.
The intent of the clause was to ensure people born in the US were citizens, even if their parents were not (it was a direct response to the dredd Scott decision.
The history of the amendment is why it gets interpreted this way, and why it can’t be interpreted away. It does what it was intended to do - confer citizenship on people born in the US even when their parents may not have been citizens.
It's not as clear as your rhetoric insinuates.
https://www.heritage.org/the-constitution/report/birthright-citizenship-and-the-constitution
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At the time the 14th Amendment was written, there was no such thing as illegal immigration, so if it would have been intended to apply to the children of illegal immigrants is hard to figure out. There are good arguments to made either way.
"subject to the jurisdiction of" was meant to exclude people like American Indians, which were considered to be citizens of their respective tribes, not the USA.
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At the time the 14th Amendment was written, there was no such thing as illegal immigration, so if it would have been intended to apply to the children of illegal immigrants is hard to figure out. There are good arguments to made either way.
"subject to the jurisdiction of" was meant to exclude people like American Indians, which were considered to be citizens of their respective tribes, not the USA.
Try squaring the circle of the plethora of US "citizens" with dual citizenship.
Congress needs to clarify by ending both birthright and dual citizenship.
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It's not as clear as your rhetoric insinuates.
https://www.heritage.org/the-constitution/report/birthright-citizenship-and-the-constitution
This illustrates my point. In defence of saying it’s not clear, you cite a soft sciences professor from one of the most politically charged think tanks in the country. Not a Supreme Court decision, not a Supreme Court judge, not even a quote from a politician who drafted the amendment or debated it.
“Authority” surely means something other than what’s at that link.
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At the time the 14th Amendment was written, there was no such thing as illegal immigration, so if it would have been intended to apply to the children of illegal immigrants is hard to figure out. There are good arguments to made either way.
"subject to the jurisdiction of" was meant to exclude people like American Indians, which were considered to be citizens of their respective tribes, not the USA.
You seriously think no one arrived illegally by boat or land at that time?????
Either way, Indians were in fact legally treated as sovereigns in many respects, just like diplomats. Hence the jurisdictional clause. At those times the USA recognised tribes as foreign nations, which they still consider themselves to be in some parts.
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Sorry, DeSelby, the authorities are divided on this, because .... they ARE divided.
It happens when authorities DISAGREE with each other. It happens.
Take the 2nd amendment. To me, it's intent is 100% clear. But experts -- er, "experts" have disagreed.
I've seen it happen. It's happened on the 14th, too, like it or not. It's what "subject to its jurisdiction" meant at the time .... versus two court decisions. And with regard to that quoted phrase, what the authors intended, versus court decisions.
I'm not saying you're wrong .... I don't have a dog in the fight, just an ant.
I would like to see one of these divided authorities
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I would like to see one of these divided authorities
So I just googled "14th amendment doesn't apply to illegals" and got:
https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment By a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies
https://thehill.com/homenews/administration/414064-kobach-many-people-under-misimpression-14th-amendment-commands by the Kansas Secretary of State
https://www.usnews.com/opinion/articles/2010/08/30/14th-amendment-doesnt-make-illegal-aliens-children-citizens by the director of the B. Kenneth Simon Center for American Studies at the conservative Heritage Foundation *second one from the Heritage foundation, I know.
There's more, and I am not going to bother to dig too deeply, but there are at least a few people, with actual college issued credentials on the subject, that argue it doesn't apply to anchor babies.
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Nobody argues the original purpose or original intent of the amendment was to circumvent the naturalization process of becoming a US citizen.
It wasn't even addressed when being debated iirc.
At best it was poorly thought out and birthright citizenship was an unintended consequence.
Children of a foreign national are obviously subjects of whatever nation their parents are citizens.
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You seriously think no one arrived illegally by boat or land at that time?????
Yes. There was zero restrictions on immigration in the USA at that time:
https://en.wikipedia.org/wiki/List_of_United_States_immigration_laws
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I don’t particularly have an issue with birthright citizenship. I’ve always sort of viewed it like the lottery, if you are lucky enough to be born here you can be a citizen. Obviously it is being abused in this day and age. Whether people that come here specifically to have a kid or those that immigrate illegally and then have kids and use those kids to get benefits and stay here.
To me it seems there is an easy solution. When you are 18 you can come back and be a citizen, until then you are a ward of your parents and you have to go where they live and if it isn’t legally in the US then you all have to go. Then when the child is an adult they can make a decision to legally be a US citizen or not.
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So I just googled "14th amendment doesn't apply to illegals" and got:
https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment By a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies
https://thehill.com/homenews/administration/414064-kobach-many-people-under-misimpression-14th-amendment-commands by the Kansas Secretary of State
https://www.usnews.com/opinion/articles/2010/08/30/14th-amendment-doesnt-make-illegal-aliens-children-citizens by the director of the B. Kenneth Simon Center for American Studies at the conservative Heritage Foundation *second one from the Heritage foundation, I know.
There's more, and I am not going to bother to dig too deeply, but there are at least a few people, with actual college issued credentials on the subject, that argue it doesn't apply to anchor babies.
Yeah - notice what they have in common? None is an authoritative source on the law or the framing of the constitution.
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Nobody argues the original purpose or original intent of the amendment was to circumvent the naturalization process of becoming a US citizen.
It wasn't even addressed when being debated iirc.
At best it was poorly thought out and birthright citizenship was an unintended consequence.
Children of a foreign national are obviously subjects of whatever nation their parents are citizens.
Well what do you think the intent was? Slaves were brought to the US as chattel, not citizens. If the amendment wasn’t intended to make the children of those for legal purposes non-citizens into citizens then what did it do?
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Attacking the source of the information is fallacious. It doesn't address the issue. Stay on point and lose with dignity.
Your rhetoric is weak and unpersuasive.
From one of the above links. Easily sourced information. The author of the provision himself excludes foreigners.
Many today assume the second half of the citizenship clause ("subject to the jurisdiction thereof") merely refers to the day-to-day laws to which we are all subject. But the original understanding referred to political allegiance. Being subject to U.S. jurisdiction meant, as then-Chairman of the Senate Judiciary Committee Lyman Trumbull stated, "not owing allegiance to anybody else [but] subject to the complete jurisdiction of the United States." The author of the provision, Sen. Jacob Merritt Howard of Michigan, pointed out that the jurisdiction language "will not, of course, include foreigners."
Birthright citizenship is a sham.
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Attacking the source of the information is fallacious. It doesn't address the issue. Stay on point and lose with dignity.
Your rhetoric is weak and unpersuasive.
From one of the above links. Easily sourced information. The author of the provision himself excludes foreigners.
Birthright citizenship is a sham.
You should read the actual records of the debate rather than a heritage foundation op ed: http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=13 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=13)
The people debating the amendment clearly understood that it applied to children of immigrants - some opposed, some supported. But to say they never considered it had this effect is false.
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You should read the actual records of the debate rather than a heritage foundation op ed: http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=13 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=13)
The people debating the amendment clearly understood that it applied to children of immigrants - some opposed, some supported. But to say they never considered it had this effect is false.
I don't think anyone doubts the bolded part.
There seems to be more question if it applied, for example, to a pair of English nobles here on vacation who happened to have a kid. (tourist) Or a group of female Mexicans running with some bandits in Texas that had a kid on a raid across the border (illegal).
As you pointed out that folks would come here and live permanently and have families while not being immigrants recognized by the State and Local govs, was not really a thing to the drafters of the 14th amendment, hence the division among authorities about how it applies to that situation.
Personally I think it means what it says (much like the other amendments) and anchor babies are citizens. The fact that a new(ish) situation has evolved that the writers of the amendment didn't foresee doesn't mean we can ignore the pretty plain language. The issue with immigration and anchor babies is manufactured by us anyway. The answer is not to try to parse language on the amendment, but not to keep extra illegals here for the sake of one citizen. The minor citizen can stay, and be a ward of the state, or they can go with their parents and attempt to establish their identification and get a passport when they are 18. Then they can come and go as they please. The idea that parents and grandparents automatically get a pass to stay is the issue, not the citizenship of the anchor babies.
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dogmush saw right through the deceitful conflating of immigrants with those visiting and those in the country illegally.
Edited to add, arguing that a nation has no choice in who they allow to become citizens is goofy.
Granting citizenship to the children of people who are here illegally is goofy as well as allowing birth tourism being goofy.
It makes a mockery of national sovereignty.
Another nation could just flood our country with their citizens in order to hopefully influence policy later down the line. And we can do nothing about that?
It's a very incoherent position.
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You should read the actual records of the debate rather than a heritage foundation op ed: http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=13 (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=13)
The people debating the amendment clearly understood that it applied to children of immigrants - some opposed, some supported. But to say they never considered it had this effect is false.
The children of legal immigrants... which is what all of them were at the time.
Would they have applied this to hypothetical illegal immigrants? We don't know.
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I don't think anyone doubts the bolded part.
There seems to be more question if it applied, for example, to a pair of English nobles here on vacation who happened to have a kid. (tourist) Or a group of female Mexicans running with some bandits in Texas that had a kid on a raid across the border (illegal).
As you pointed out that folks would come here and live permanently and have families while not being immigrants recognized by the State and Local govs, was not really a thing to the drafters of the 14th amendment, hence the division among authorities about how it applies to that situation.
Personally I think it means what it says (much like the other amendments) and anchor babies are citizens. The fact that a new(ish) situation has evolved that the writers of the amendment didn't foresee doesn't mean we can ignore the pretty plain language. The issue with immigration and anchor babies is manufactured by us anyway. The answer is not to try to parse language on the amendment, but not to keep extra illegals here for the sake of one citizen. The minor citizen can stay, and be a ward of the state, or they can go with their parents and attempt to establish their identification and get a passport when they are 18. Then they can come and go as they please. The idea that parents and grandparents automatically get a pass to stay is the issue, not the citizenship of the anchor babies.
This seems sensible. It’s best not to just ignore the constitution because there is a problem.
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The children of legal immigrants... which is what all of them were at the time.
Would they have applied this to hypothetical illegal immigrants? We don't know.
You should review the debate record. They were talking at length about people born to parents who violated state based restrictions on immigration. This is specifically discussed in the debate about the text (in part at the page I linked).
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You should review the debate record. They were talking at length about people born to parents who violated state based restrictions on immigration. This is specifically discussed in the debate about the text (in part at the page I linked).
Yes, and the discussion shows that it was not the intent when they drafted it to allow children of illegals, (or "Indians") to be citizens, and they worried that the language might eventually be interpreted to do that. But they allowed the language to be adopted as we have it, and the result is just what they feared -- the law is being applied based on what it says rather than on what they meant to say. (What a novel concept -- enforce a law based on what it says.)
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The issue really needs to be clarified by legislation and the courts.
We're applying a law to a situation it wasn't written to address with the unintended and absurd consequences one would expect from such folly.
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The issue really needs to be clarified by legislation and the courts.
We're applying a law to a situation it wasn't written to address with the unintended and absurd consequences one would expect from such folly.
It realy needs to be addressed by revising the law, but it's probably too late. The Democrats would never allow that to happen ... it would cut off their voter factory.
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It realy needs to be addressed by revising the law, but it's probably too late. The Democrats would never allow that to happen ... it would cut off their voter factory.
You don't need to be a citizen to vote for Democrats.
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You don't need to be a citizen to vote for Democrats.
Or even alive.
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Or even alive.
Good point.
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You should review the debate record. They were talking at length about people born to parents who violated state based restrictions on immigration. This is specifically discussed in the debate about the text (in part at the page I linked).
Ok, I did review the the documents you indicated. Here it is the part regarding state level immigration restrictions:
(https://i.ibb.co/gdGmt8K/Capture.jpg) (https://imgbb.com/)
They said that state level immigration restrictions, were "quite properly" struck down as unconstitutional.
They were not talking about children of illegal immigrants, which did not exist at the time. They were talking about children of legal immigrants (Chinese, in this case).
Would they have said children of illegal immigrants would be citizens, or, like the Indians not be citizens (because they were subject to the jurisdiction of their parents country)? We don't know. They did not address that issue at all.