Home / General / From the Party of Lincoln to the Party of Calhoun, An Ongoing Series

From the Party of Lincoln to the Party of Calhoun, An Ongoing Series

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Roger-Taney-in-1858Mister, We Could Use A Chief Justice Like Roger Taney Again

Chalk up another crackpot position that’s gone utterly Republican mainstream:

On Sunday, business mogul Donald Trump came out in support of ending birthright citizenship — and on Monday, Wisconsin Gov. Scott Walker joined him.

Ohio Gov. John Kasich said recently that he didn’t think the party needed to go that far in trying to crack down on illegal immigration. But during his run for governor in 2010, according to the Columbus Dispatch, he reiterated his longtime support for ending birthright citizenship.

When Kentucky Sen. Rand Paul first ran for the Senate in 2010, he said he didn’t “think the 14th Amendment was meant to apply to illegal aliens.” He has since pushed for a constitutional amendment. New Jersey Gov. Chris Christie has said the issue needs to be re-examined as well.

Former Pennsylvania Sen. Rick Santorum has also stated his support for altering the 14th Amendment…

And on Monday night, Louisiana Gov. Bobby Jindal joined the debate, tweeting, “We need to end birthright citizenship for illegal immigrants.”

Even South Carolina Sen. Lindsey Graham, a longtime supporter of immigration reform, has called for a consideration of a change in the Constitution because he believes immigrants will simply “drop and leave” their kids in this country.

Taken together, that’s a solid chunk of the Republican field. And for a political party desperately trying to improve its standing with Hispanic and other minority voters, it could portend a damaging bend toward nativism.

If the Republican Party has ever accomplished something good, contemporary Republicans will do what they can to purge any trace of the preemptive heresy from the books.

Amanda Terkel has a good companion piece on the history of denying citizenship to various classes of people.

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  • It’s nice to know that they think I shouldn’t be considered an American citizen.

    • The Dark Avenger

      It’s an honor you share with Michelle Malkin.

      • Malaclypse

        Under The Donald’s “proposal”, people who love America – so, Bibby Jindal, but not Barack Obama – would be okay. So Malkin, a conservative who by definition loves America, is okay. The good doctor above, however, is a liberal, and hence actively destroying the American way of life. You just can’t compare the two situations at all.

        • witlesschum

          That’s a pretty good example of Trump’s sort of brutal, direct skill with a pander. I mean, that’s what a lot of people really want is a magic fence that keeps out the bad people they see on the local TV news, but allows in Juan from accounting who’s a good dude. Trump just gives them the fantasy.

  • My favorite part of this is Bobby Jindal supporting it even though neither of his parents were U.S. citizens when he was born.

    • which is what my comment above was about, in reference to my parents.

      • weirdnoise

        I suspect their answer to this is to say that only children of “illegal” immigrants should be denied citizenship — which is typical Republican visiting of the sins of the parents upon the child. It’s all part of the Republican trend to neofuedalism.

        • While they may say that, their actual proposals aren’t like that.

    • He earned his citizenship through his service in the Republican Party, obviously.

      • And of course through wishing he was white.

        • Murc

          … Erik, that’s super, crazy uncalled for. It’s borderline racist, in fact.

        • witlesschum

          Yeah, that’s bullshit. There’s no reason to think a horrible, moronic asshole, dominionist, elite fluffer and just general enemy of decency can’t be authentically Indian-American. Being people, they are as terrible as anyone else.

          Really, we’re fighting for an America where terrible assholes who want to serve their 1 percent loyally and happen to be racial minorities can excel in their hoped-for career path. It’s the right thing to do, but the bonus will be we can be rid of Harold Ford.

          • I dunno. His official portrait somehow doesn’t quite match his photographs.

            • Hogan
            • witlesschum

              That’s just a case of the artist capturing his essential lack of qualities and representing it as a washed out, colorless….

              Seriously, if that’s not two separate painters trying to make him look white, what the hell is it?

          • DrDick

            However, I think Erik is right here. If you listen to Jindal’s public statements, they seem to erase his ethnic background. While there is nothing wrong with that in itself, there is a profound disconnect between his background and his stated positions on race and immigration.

            • jim, some guy in iowa

              I think there has to be a *lot* of disconnect going on in Jindal’s mind in order for him to be a functioning republican. To me he looks like someone who, in order to express his political beliefs, has thrown in with people who frighten him at times. Kind of like the Log Cabin Republicans (are they still around?)

          • Thirtyish

            I agree with Erik, actually. It’s obvious that Jindal, among other things, is deeply ashamed of his Indian heritage.

            • timb

              For example, is his first name Bobby?

            • DrS

              I’m not sure that this is fair. You can only reach this conclusion by reading Jindal’s statements and he’s a known liar.

      • Craigo

        There’s a loophole for anyone who changes their name to match one of the Brady Bunch.

        • Lee Rudolph

          Or, at least, a glory hole.

    • Just_Dropping_By

      Except that Jindal specifically said in the excerpt above that he wanted it ended for “illegal immigrants.” I’m not aware of anyone claiming that Jindal’s parents entered the country illegally. (I would be opposed to repealing the birthright citizenship provision of the 14th Amendment because I think it’s actually a reason that the US has been a much more successful “melting pot” society than many others, but it’s not ridiculous to argue for more restrictive rules on conferring citizenship at birth — most countries in the world don’t have anywhere near as expansive a birthright citizenship concept as the US has.)

      • Bill Murray

        many illegal aliens enter the country legally then do not leave when their visa runs out

        • Just_Dropping_By

          Are you contending that Jindal’s parents overstayed their visas? Because otherwise the issue of people entering the country legally and then being converted to “illegal” status still doesn’t make him a hypocrite.

          • Woodrowfan

            I think it’s more a case of the crowd he’s hanging out with. The idea of ending Birthright Citizenship came out of the Birther Movement, some of whom also argue that Gov. Bobby can’t be president because his parents were not born in the US. And some of the anti-14th group wants to limit, or even end, all immigration–at least from non-whites.

          • Bill Murray

            I never claimed Jindal was anything. I claimed that many people become illegal aliens by overstaying their legal entry status. It looks like 1/3 to 1/2 of illegals enter that way (http://www.politifact.com/new-jersey/statements/2012/sep/23/rob-andrews/rep-rob-andrews-claims-most-illegal-immigrants-fir/)

            I doubt Jindal’s parents had overstayed their Visa during the six months between their coming to America and Bobby’s birth. However, Bobby is a citizen by birth, which he now wants to end, so he wants to remove benefits that he himself received and is still using which seems pretty hypocritical to me.

            • Bill Murray

              My edit time ran out

              I think the way this would be adopted is no citizenship for non-permanent visa holders (tourists, students), expired visa holders and those here without a US visa

            • Just_Dropping_By

              Jindal’s specific statement quoted in the blockquote posted by Lemieux was that he wanted to end birthright citizenship for “illegal immigrants.” If his parents fit no definition of “illegal immigrants,” it’s not hypocrisy.

              • xq

                It wouldn’t be hypocrisy in any case. It’s not hypocrisy to oppose policies you benefited from but had no control over.

                • DrS

                  Not strictly hypocrisy, but certainly the actions of a real asshole. It’s still “but when I did it, it was different cause reasons”

      • ajp

        Not that I am opposed to birthright citizenship (my father is an immigrant, and my mother’s father was and I have never been a pull the ladder up behind me kind of guy) but I don’t know that repealing birthright citizenship would require a constitutional amendment as many people are saying. I don’t think it was always clearcut based on the text of the amendment.

        All we’d have to do is get the Supreme Court to re-interpret the citizenship clause and reverse United States v. Wong Kim Ark. Yeah, I know, easier said than done.

        But think about it-even though that case hasn’t been seriously contested in over a century, is there any doubt in your mind that if the Republican Party established repealing birthright citizenship as part of their mainstream platform (i.e. not just the rantings of one fringe candidate) and conservative “scholars” wrote about it and some sort of test case came before the Supreme Court…you think the Republican justices wouldn’t toe the party line on it? Maybe Roberts might not go for the bullshit, like he didn’t with King v. Burwell, but I’m not so sure. There are some legal scholars apparently who already disagree that birthright citizenship applies to the children of undocumented immigrants. If the Republican Party pushed really hard on this, I’m afraid the Court could go along with them and they could do a lot of damage.

        • DrDick

          I don’t know that repealing birthright citizenship would require a constitutional amendment as many people are saying.

          The Fourteenth Amendment explicitly states:

          “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.”

          So yes, it would require a constitutional amendment.

          • dilan

            Correct.

            In some sense, ANYTHING only requires a Supreme Court decision. I mean, the Eleventh Amendment says what it says, but….

            But that’s an argument that shouldn’t be taken too far. Even the Eleventh Amendment caselaw I hate comes out of some historical tradition. So it isn’t literally true that the Supreme Court can do anything. There are constraints, and the historical tradition supporting Wong Kim Ark is very strong, whereas the argument against it would require that one argue that illegal immigrants aren’t even subject to federal jurisdiction. When you actually think about the implications of that position, it’s ridiculous. (“Subject to the jurisdiction” was really about the children of ambassadors born at the embassy, and the like.)

            BTW, I suspect Scalia rejects Wong Kim Ark. He hints at it in his (otherwise good) Hamdi dissent, where he refers to Hamdi as a “presumed American citizen”.

            • ajp

              I agree with you on Scalia, I think it’s hard to get a read on the other Republican appointees. But, I don’t necessarily want to underestimate how fringe legal theories can go from fringe to respectable nearly overnight (see, e.g. Sebelius).

              I mean look, we can at least agree that the issue can potentially get to the Supreme Court, right? Is this not in part the tactic Republicans are using w/r/t abortion? Pass laws that pretty blatantly push the limits of Casey in the dual hope of 1) curtailing abortion access and 2) hoping for a court challenge that will go their way?

              I can at least see a law repealing birthright citizenship for the children of illegal immigrants being passed by a Republican Congress and being signed by a President Walker/Trump. I can see scholars being recruited to make the position more respectable. I can see a Paul Clement type arguing the case if the Supreme Court takes it.

              • Hogan

                Or perhaps the actual Solicitor General.

                • ajp

                  That’s right, it would be the government defending the law, so Solicitor General. Good grief, can you imagine the Solicitor General and AG that a President Cruz or Walker would nominate/appoint?

              • timb

                Who has standing in today’s world to get to Court

        • Scott Lemieux

          don’t know that repealing birthright citizenship would require a constitutional amendment as many people are saying.

          It very clearly would. The text is not at all ambiguous on this point.

          • ajp

            The text is not at all ambiguous on this point.

            *You* say the text is not ambiguous. I don’t think it’s ambiguous either. But who has the final say on what that means? The Supreme Court.

            I didn’t think it was possible to overestimate the Supreme Court’s potential for chicanery.

            But anyway, I should have pointed out that I am talking about the children of illegal immigrants. I don’t see why it is unpossible for Republican partisans on the Supreme Court to repeal Wong Kim Ark and Plyler v. Doe. It seems to be gaining renewed traction in the Republican Party, I don’t see how it’s unpossible that Congress passes a law to this effect, and a Paul Clement type, backed by some Randy Barnett types, argues successfully that Wong Kim Ark doesn’t apply to children of parents who entered illegally. Do we really want to underestimate the depravity of the Republican Party and the Republicans on the Supreme Court?

            • Scott Lemieux

              Sure, the Supreme Court could declare that a 25-year-old could run for president if it wants, although it’s unlikely. But the text on this point would still be unambiguous.

              • ajp

                Yea but would a 25 year old running for President have the support of much of the Republican Party and hack legal “scholars”?

                • DrDick

                  Depends on whether his last name was Bush.

          • timb

            Levin’s argument was that Section 1 gives Congress “plenary” power for determining naturalization, so Congress can establish limits on the 14th. I thought that was pretty crazy, but I still think saying Brown v Bd of Ed means we should have segregated schools is crazy. Or, no Congress you cannot guarantee the right to vote without addressing the Chief Justice’s jihad against the VRA

            • dilan

              People should be careful with this “Supreme Court can do anything they want” stuff.

              Bush v. Gore and Halbig were one-offs. But when you are talking about constitutional interpretation, you can’t just walk into court, even as a conservative activist, and get 4 votes. They care about precedent, they care about not screwing up constitutional law, etc. Which means that where conservatives have had success, it has been through building a scholarly consensus (at least among conservatives, but also sometimes liberals as well) for their ideas and then presenting them to the Court in increments, just as Marshall did with desegregation. For instance, DC v. Heller was a very narrow case that got the right a Second Amendment victory, but they built the groundwork for that over a long period of time.

              So I don’t think conservatives can just walk into court and get Wong Kim Ark overturned.

        • Just_Dropping_By

          The Supreme Court could indeed theoretically do that by reversing Wong Kim Ark and holding that people whose parents are not US citizens, or otherwise legally in the country at the time of their birth, are not subject to the “jurisdiction” of the United States. The problem with this approach is that it would simultaneously give illegal immigrants diplomatic immunity. I’ve never gotten a response from any advocates of such a “nativist” reading of the 14th Amendment as to how they avoid that problem. (Although it would be pretty hilarious as an unintended side effect.)

          • ajp

            Diplomatic immunity? That’s just words on paper. 1) I wouldn’t underestimate the powers of chicanery Scalia et al possess and 2) a Republican administration flouting such an implication.

          • rea

            Well, if they are not under the jurisdiction of the US, by what right do we deport them?

      • timb

        Ladies and gentlemen, for better of worse, this was the thesis of last evening’s Mark Levin show, which spent 2 hours on how birthright citizenship is wrong and no one else (besides Canada) does it.

        • DrS

          So much for the vaunted ideals of american exceptionalism.

        • Nick056

          Worth pointing out that even though Britain abolished strict birthright citizenship in 1981, this path to citizenship seems relevant:

          A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [F9, (1A)] or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.

          So a UK-born child who resides in Britain for 10 years is entitled to citizenship regardless of whether the parents were citizens or “settled” (i.e. regardless of their immigration status). I don’t see any of the GOP candidates suggesting such an automatic entitlement based on place of birth alone, largely because it would be the exception that swallows the elephant. They want to go quite a bit farther than the UK did and be the only country that outright abolishes jus soli.

    • Malaclypse

      It’ just like abortion – Jindal’s citizenship is deserved, not like those people’s.

      • Hogan

        You laugh, but:

        Even if he was born in Hawaii, that does not make him a natural born citizen. It’s a very strict term. I won’t say very strict — there’s a real meaning to the term, it’s not that it’s perfectly defined but the understanding is well understood. The understanding is that you be born of American parents with unquestioned loyalty to the United States.

        So the question comes up about Bobby Jindal’s parents. Both of them were in the United States on student visas. To me the real question is does the candidate have any divided allegiance. So if Jindal’s parents remained steadfastly identifying as Indians and he steadfastly identified as an Indian, even though he was born in the United States and was a citizen, he would not be eligible. Legitimately, he would not be eligible to be President. But given the fact that he changed his name after a character in “The Brady Bunch” — as American as it gets — I don’t think there’s any question in any of those candidates that there’s any dual allegiance. That’s what the law was designed to prevent, was people with dual allegiance.

        If he were not born in the United States — this isn’t even questionable, this is the law — neither his mother nor his father would’ve been able to confer citizenship. The law is very clear on that. His mother would have missed the eligibility by months, but she still would not have been eligible just by her age. And his father by dint of the fact that he was a citizen of a foreign country with no intent of ever becoming American.

        In the question of divided allegiances, he’s the first President in the history of the United States whose parents spent virtually their entire adult lives outside of the United States. They were, certainly his father and to a lesser degree his mother, hostile to the United States. If the case came down to allegiance, there would be some question. But in the case of Jindal, Rubio and Cruz I don’t think there’s any question that any of their parents have allegiance other than to the United States.

        • Malaclypse

          Yep, I had read that.

          I give it twelve years [*] until the Republican Party platform calls for “loyalty tests” [**] to keep, not get, citizenship.

          * Six years until the Texas Republican platform starts the idea.

          ** Sample question: “Reagan: (a) Greatest President ever, (b) Greatest American ever, (c) I’m a disloyal Communist.”

          • MAJeff

            Loyalty oaths are still in place. Pierce had something yesterday about Nebraska, I believe, and I recall having to sign one when I got my job at the University of North Dakota (that was apparently challenged in 2014, well after I left).

        • Clinton will have to change her disloyal New Zealandish name to Marsha.

          • timb

            Heck, she’ll be 20 years according to Limbaugh and Andrew McCarthy

        • creature

          I read that interview- it would be hilarious, if this guy wasn’t so serious. I wouldn’t doubt that the wacko, off the chart, bizarro world Republikkkan ‘base’ wouldn’t get behind this. They might lament ‘Carlos in accounting’ getting shipped back to Mexico, but, he’s ‘not really an Amurken!’, so it’s all good! Any channel that can serve the hate is going to get turned into a superhighway.

        • rea

          he’s the first President in the history of the United States whose parents spent virtually their entire adult lives outside of the United States.

          Well, if you don’t count Washington . . .

    • dp

      But he’s distinguishing “illegal” immigrants, so that everyone who is born here would have to prove the citizenship status and/or immigration status of his parents in order to prove citizenship.

      Sounds workable!

      • JL

        And it’s pretty common for people’s immigration status to change at least once. Would the kids have to prove that their parents had documentation at the time of birth? At the time of conception? At the time of application for citizenship? What if one of the parents is unknown?

        • NBarnes

          If a child is found as a baby on the sidewalk outside of an ER and their parents never determined, is that child, under Trump or Jindal’s proposed Constitutional order, a US citizen? If yes, what happens if that child, when grown and married themselves, discovers that their parents were never in the country legally? If the then-child is stripped of their US citizenship upon such a discovery, what happens if that child had, in the meantime, been elected to the office of the Presidency of the United States of America, which requires the occupant to be a natural-born citizen of the United States?

          • Just_Dropping_By

            Given that there are numerous countries without automatic birthright citizenship for children of foreign nationals, I’m pretty sure that there’s a non-trivial body of statutory or case law out there relating to citizenship for “foundlings” that could be used as a model. I mean, seriously, you can support keeping the birthright citizenship provision of the 14th Amendment unchanged without having to pretend that repealing it would lead to complete anarchy. You’re operating at about the same intellectual level as rightwingers who claim that repealing the Second Amendment would remove the sole obstacle to the US becoming a totalitarian state.

            • NBarnes

              I’m not entirely convinced that the people advancing these theories have earned the benefit of my assumption that they know what they’re talking about. That repealing the 14th amendment without having some theory as to what might replace it would lead to anarchy probably hasn’t risen very far on their ‘think about this’ lists.

          • witlesschum

            You thrown the baby in a pond.

            What? That’s the whole plan.

            • Malaclypse

              Don’t be silly.

              You hold a brown paper bag next to the baby.

              • witlesschum

                But there’s still a pond?

                • Malaclypse

                  Bill, below, understands. Also, for those who will need the pond, there will also be burlap sacks.

                • witlesschum

                  Liberals and their complicated bureaucracies.

              • Bill Murray

                and if it is lighter in color than the bag, no pond for that baby.

          • UserGoogol

            Strictly speaking, if a newborn baby is found on the sidewalk outside an ER, you don’t really know where it was born, (even the ER is the most plausible explanation) so such a situation could emerge under the status quo.

          • Ahuitzotl

            clearly his whole Presidency and all his acts would then be revoked, and McCain would be declared President ex officio the runner up would be declared President

            • rea

              McCain? The Panamanian?

              • Manny Kant

                And Romney’s dad was born in Mexico.

                • Lee Rudolph

                  Whereas to all appearances Mitt was (fairly poorly) constructed, not born at all.

    • timb

      pull the ladder up after you get in the tree house, baby

    • efgoldman

      My favorite part of this is Bobby Jindal supporting it even though neither of his parents were U.S. citizens when he was born.

      FYIGM!

  • Nick056

    I’ve been seeing a few things today suggesting that the text of the 14th amendment could support “ending birthright citizenship” for children of illegal aliens. To the contrary:

    “In appellants’ view, persons who have entered the United States illegally are not ‘within the jurisdiction’ of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase ‘within its jurisdiction … the protections of the Fourteenth Amendment extend to anyone … who is subject to the laws of a State ….” Plyer v. Doe, 457 U.S. 202, 211-215 (1981).

    FN 64

    At the risk of sounding like Loomis, these people are evil sociopaths. God willing, Clinton will be elected and they will self-deport.

    • I’m amused that people would have to apologize for calling these people what they actually are.

    • Craigo

      “Subject to the jurisdiction thereof” isn’t exactly clear, but case law has basically pointed to three definitions: diplomats, invading armies, and American Indians.

      Of course, Trump would probably just say that Mexico has invaded…

    • Nick056

      And it should also be stressed that the 14th amendment is not the genesis of jus soli. From the CRS paper I cited above:

      In 1844, in a probate case in New York State, Assistant Vice-Chancellor Lewis Sandford authored a detailed and scholarly opinion, later cited and relied upon by numerous federal courts and legal treatises, on the legal history of natural born citizenship status in the United States. The opinion in Lynch v. Clarke found that one of the litigants, Julia Lynch, who was born in New York to alien parents who were merely on a “temporary sojourn” in this country, was a natural born U.S. citizen who had the legal capacity to inherit:

      My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country […] It is indisputable that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States […] It may then be safely assumed, that at the Declaration of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native.

      This entire discussion is amazing. Not only do we have a clear 117-year-old SCOTUS decision based on the 14th amendment, we have the principle of jus soli “long anterior to the first settlement of the United States.” Seriously, what is wrong with people? It’s an excellent reminder how much 1,000 years of traditional common law definition actually means to these people as soon as it’s not about gay bashing, however.

      • Malaclypse

        It’s an excellent reminder how much 1,000 years of traditional common law definition actually means to these people as soon as it’s not about gay bashing, however.

        It’s also a reminder that, whatever they are, modern Republicans are not, by any reasonable definition, “conservative.”

        • DrDick

          No conservative ever has been. The only thing they have ever wanted to conserve is elite privilege (for varying definitions of “elite”).

          • GFW

            I thought that was the (political) definition of “conservative”. Those who want to preserve the existing social order. Something about “standing athwart history yelling ‘Stop'” comes to mind.

            • Hogan

              More like standing athwart history yelling “Go back! Farther! Farther! Keep going! No, farther!”

      • rea

        It’s an excellent reminder how much 1,000 years of traditional common law definition actually means to these people as soon as it’s not about gay bashing, however.

        See also, “personhood begins at conception”

      • Bruce Vail

        What is “wrong with people” that they are not familiar with with a 1844 court decision and the important concept of how English common law should be observed in a country that threw out English governance in a revolution more than 200 years ago?

        Hard to know where to begin….

        • witlesschum

          People should be familiar with the fact that it’s been this way the entire history of the United States. And if they want to change that, they should have some good and persuasive reasons to hand.

          • Malaclypse

            Seriously. This is a Schoolhouse Rock level of political literacy.

        • NBarnes

          They’re the folks going over the 14th amendment with a magnifying glass, trying to find a reading that supports in their ex ante preferred policy. At that point, pointing out that they appear to have no idea what it is they are talking about seems germane.

          • DrDick

            That has always been the conservative approach to constitutional law.

        • Nick056

          I see you got a lot of pushback down thread and may have done some rethinking since this morning, but, yes, I do think people who want to change a long-settled rule of citizenship should undertake to learn about its origins and its purpose. And I think that there is something deeply wrong with not really understanding why the US has — and has always had — citizenship by birthplace if you’re adamant about abolishing it.

          It’s not about being familiar with a particular 1844 decision, as much as it is understanding what Lynch established through careful scrutiny: many of our legal traditions, including our laws of citizenship, derive from British custom, which held for hundreds of years prior to the formation of the US that children of aliens are in fact citizens. The 14A affirms this principle. The most notable exponent of a more restrictive theory of citizenship was Roger Taney’s racism in Dred Scott, which the 14A put to rest. The first real test of citizenship laws after the 14A related to anti-Chinese racism, and the SCOTUS put that to rest in Wong Kim Ark. In 1981, the Supreme Court revisited a tangential issue arising out of funds for Texas schooling and reaffirmed its precedents. People should understand all this if they want to do away with birthright citizenship,

        • rea

          how English common law should be observed in a country that threw out English governance in a revolution more than 200 years ago?

          Poe’s law? Or complete ignorance of the history of American jurisprudence?

    • Ahuitzotl

      Wait … they arent in the jurisdiction even if they’re in the State. So illegal immigrants can break American laws without fear of prosecution, because they’re not in the jurisdiction of the state?

      That would mean illegal immigrants aren’t violating any american laws by being in America, if I’m following this right?

      • Scott Lemieux

        Exactly. Trying to read the 14th Amendment as not requiring birthright citizenship is just transparently absurd.

        • Bill Murray

          It’s like every Constitutional argument by the Republicans boils down to the Moops invaded Spain

      • David Hunt

        That’s because you’re misreading the obviously correct interpretation. Anything that makes things easier for immigrants or their children is wrong and anything that makes things worse for them is correct. Once Republican arguments are viewed through this axiom, then it all becomes entirely consistent.

        More seriously, what Lemieux said above me.

        p.s. I’ve been trying to log onto the site for an hour. This is very atypical as I usually have no problem. Is anyone else having increased difficulties?

  • Derelict

    Sadly, there is a very large swath of Americans who really, really hate immigrants and believe we need to seal the borders, stop ALL immigration, and round up and deport every non-citizen. I hear this kind of talk even from people who are liberal on every other issue.

    Republicans play to this nativism, and the profound ignorance of the average voter intensifies it. When I ask people why they’re so anti-immigrant, what I mostly hear is a combination of:

    1.) Immigrants are violent criminals
    2.) Immigrants are taking all our jobs
    3.) Immigrants come here to get on welfare
    4.) We can’t support all the people who are here now.

    While I doubt the Constitution will ever be altered to accommodate this nonsense, I do see the states passing ever more draconian laws that ostensibly focus on the illegals, but effectively make the lives of poor people in general much more miserable.

    • Kurzleg

      #2 has always been a comfort to the GOP and its fellow travelers because it allows them to shift the blame for economic hard times from the real culprits to the “other”. Never mind whether or not there’s any substance to the claim. It simply reinforces their own biases.

  • rea

    Once thing Taney was not, was a Calhounian. Taney was Jackson’s man, and Jackson would cheerfully have hanged Calhoun.

    • Joe_JP

      The term can be used loosely.

      And, by the end, Taney made comments suggesting he thought the rebellion was just to protect the rights of the South.

      • rea

        And, by the end, Taney made comments suggesting he thought the rebellion was just to protect the rights of the South.

        I wonder what comments you mean. He stood by the Union in 1861. He disagreed with Lincoln over suspension of habeus corpus, but probably most of us lefties today would think he had the better of the argument.

        • Manny Kant

          Wikipedia mostly suggests that Taney was very ill and poor for the last three years of his life.

    • NBarnes

      If you were to put Jackson and Calhoun in a pit, each stripped to the waist and armed with daggers, then were to put a gun to my head and ask which I preferred stab the other to deah, I am honestly not sure which I would choose. In an ideal world, the pit would also have live vipers, and I could dissemble in the hopes of both being dead before my interrogator tired of my delays

      • Joe_JP

        Jackson was less treason curious. That alone gives him an edge for me. Calhoun seems more the dangerous ideologue.

        • NBarnes

          Yeah, but Jackson personally and by direct order killed more people. Calhoun advocated dangerous ideologies; Jackson enacted grossly murderous policies.

          Lift off and nuke the site from orbit. It’s the only way to be sure.

          • Joe_JP

            eh. Calhounism led to the Civil War that killed hundreds of thousands.

            The “direct orders” and “enacted” apparently applies to Native Americans. Calhoun supported removal too and was an important voice in the government at the time.

            Calhoun’s dangerous ideologue / support of treason still to me makes him worse.

            • NBarnes

              Well, at this point we’re at why there’s a gun to my head making me choose. It’s not like there’s a ‘wrong’ answer.

          • Woodrowfan

            Slightly OT for this subthread, but some rightie just suggested the “Trail of Tears” as a model for deporting “illegals.” I am still looking to see if I can find the article again…

        • DrDick

          He did, however, directly defy an explicit SCOTUS ruling, which would potentially qualify as actual treason as overturning the Constitution.

          • Manny Kant

            So did Lincoln, no? (or a circuit court ruling, in any event)

        • timb

          Had he lived into the 1850’s, he wouldn’t have been. People became more radicalized and Jackson already was a white supremacist

          • Manny Kant

            So was Andrew Johnson, who viewed himself very much as Jackson’s political heir and stayed loyal to the Union.

    • Scott Lemieux

      Once thing Taney was not, was a Calhounian.

      Nullification is not the only issue in the world. Dred Scott has a lot of Calhoun in it.

    • timb

      Cause he personally hated him. I’m not sure Calhoun and Jackson’s political philosophy was that different, only that Jackson hated Calhoun AND Calhoun threatened to disobey him. In Jackson’s world, that was a capital crime

  • King Goat

    “If the Republican Party has ever accomplished something good, contemporary Republicans will do what they can to purge any trace of the preemptive heresy from the books.”

    Next up, perhaps 13th Amendment. I can see the GOPolitician now: “It’s federal intervention in state and private affairs and also it’s paternalistic, *giving* slaves freedom keeps them from the satisfaction of *earning* the same.”

    • Bill Murray

      Nat Turner almost earned his living freedom and did earn his freedom by death

  • Todd

    Just a long con to make Jeb appear more reasonable/moderate?

  • Bruce Vail

    I don’t think this a crackpot position at all. If not administered in a discriminatory or arbitrary way, it seems fair and reasonable.

    It’s logical to me that the citizenship rights of the baby are inherited from the parents (I have three nephews, all with dual US-German citizenship, with their citizenship rights derived from the US mother and German father). If two French citizens are on vacation in the US, and the baby is born in a US hospital, the child is a French citizen, no? What right does the baby (or the baby’s parents) have to claim US citizenship (for the baby).

    I don’t think a case like Jindal’s is hard at all. If the parents are Indian citizens at the time of his birth, then he is Indian. He can be naturalized in exactly the same way the parents are naturalized. What’s the big deal?

    This borders on being a non-issue anyway. I mean, how many people are we really talking about here? Any sort of credible data on ‘anchor babies’ seems to be missing form this discussion.

    I’ve learned a lot about the Civil War from reading LGM and its absolutely clear the 14th Amendment was about the citizenship rights of freed slaves, not about immigration policy going forward.

    • Murc

      I don’t think this a crackpot position at all. If not administered in a discriminatory or arbitrary way, it seems fair and reasonable.

      The track record of nations that both don’t have jus soli citizenship and have large immigrant populations suggests that this will not happen.

      If two French citizens are on vacation in the US, and the baby is born in a US hospital, the child is a French citizen, no? What right does the baby (or the baby’s parents) have to claim US citizenship (for the baby

      … it’s in the fucking Constitution? THAT’S by what right?

      I’ve learned a lot about the Civil War from reading LGM and its absolutely clear the 14th Amendment was about the citizenship rights of freed slaves, not about immigration policy going forward

      .

      Then they should have written it with narrower language. I could give a fuck what was intended. What did they actually write down.

      Why do you think people who are born here and raised here should be forced to become naturalized? That’s a long, costly process. I am an American citizen through no other reason than a happy accident of birth. What cause do I have to deny other people who have had similar happy accidents their citizenship?

      • I’m inclined to agree.

        Do we really need to rule out the corner case of French people vacationing in FL ending up with a duel citizen baby? I mean, *why*?

        Conversely, I would much rather rule out the possibility of people living in the US for generations and still not being citizens. Or even, decades, actually. We have two French citizens living here for decades on Green cards…why *shouldn’t* we just grant their born here children US citizenship? Indeed, I’d make it easier for the parents of citizens to naturalise.

        Knowing lots of first generation immigrants e.g., studying or on H1Bs (then green cards), I’m always really happy that their born-here children are automagically citizens. It’s bonding!

        • sibusisodan

          vacationing in FL ending up with a duel citizen baby

          I know it’s Florida, but duels with babies?

          • Nappies at 20 paces.

            But you’re right. My mistake. Only German tourists have baby duels in FL.

            • sibusisodan

              There’s some kind of pun to be made here between schmisse and scheisse, but I am not clever enough, alas.

      • Bruce Vail

        The arbitrary nature of the ‘happy accident’ is sort of the point here, isn’t it?

        Seems to me citizenship rights of the baby should be derived from the citizenship rights of the parents, not on an accident of geography.

        Am I missing something about the Constitution here? Is there some part of the document other than the 14th Amendment that confers citizenship on the babies of foreign nationals?

        And please don’t site the Constitution as some sacred text anyway. Many, many LGMers have some part of the existing Constitution that they would like to see changed immediately, and some (like me) think the whole thing was pretty rotten to begin with.

        • matt w

          Is there some part of the document other than the 14th Amendment

          Dude. The 14th Amendment is part of the document.

          I don’t know what your problem is but get your shit right. This citizenship of the blood you are advocating is seriously racist. What’s the appeal?

          • Bruce Vail

            As I mentioned earlier, it’s very clear the 14th Amendment was about the citizenship of the freed slaves, not about setting immigration policy for the future.

            Of course it is part of the document, but there is a good case to be made that using the 14th as a basis for immigration policy is a misapplication of the amendment.

            This is all sort of secondary anyway. The law, or the Constitution, or both, would have to be changed to eliminate birthright citizenship. Any such elimination should be argued on its public policy merits, not an court precedent or Constitutional theorizing.

            • Murc

              Of course it is part of the document, but there is a good case to be made that using the 14th as a basis for immigration policy is a misapplication of the amendment.

              There is not. You are wrong.

            • Joe_JP

              As noted by others, the Chinese, an ongoing immigration matter, was in the mind of people. A growing number of Chinese was entering the country & if their children were not American citizens by birth in the U.S., it would have been a big deal.

              Immigration was basic to the U.S. We are a nation of immigrants and the citizenship of immigrants was a major deal here. Also, it wasn’t just about slavery. Dred Scott v. Sandford held that blacks, not only newly freed slaves, were not part of the “people” of the U.S., raising questions about their ability to be American citizens. Including blacks born free.

              The 14A sets forth the far from necessary — see other nations* — principle that citizenship is tied to place. It’s a general theme. An undocumented person sets on our soil, they have rights that they didn’t have some place else. They are “persons” under the Due Process Clause. We don’t have rights merely because our parents had them. If a person is “born” here, they are citizens, minus special cases like ambassadors.

              As you say, we should not just appeal to the Constitution here as a Holy Writ. But, like freedom of speech etc., I think the principles here are worth upholding. This includes avoiding a mass underclass who were born here but whose parents were American citizens at birth. The simple rule in place has various charms.

              The whole “it’s just about slavery” makes the 14A too small (same sex marriage? it’s about slavery!) and as applied here, especially given the racist overtones of the movement is particularly misguided.

              * Similarly, two senators a state, various ways we run trials, the concept of the presidency etc. are not necessary for freedom to reign. In some cases, it is something we might want to think about changing.

              • It’s about slavery and corporations, especially corporations. Point to where the 14th even mentions messicans?

                • Not only are corporations people, my friends–they’re Americans!

              • Nick056

                The 14A sets forth the far from necessary — see other nations* — principle that citizenship is tied to place.

                It’s worth considering that countries without as strong of a jus soli tradition are embracing jus soli more in an attempt to liberalize immigration and citizenship policies. Take Germany:

                A child born in Germany on or after 01.01.2000 to non-German parents may acquire German citizenship under certain conditions:

                At least one of the foreign parents must have had his legal domicile in Germany for at least eight years and – for children born on or after 28.08.2007 – the parent must also hold indefinite leave to remain in Germany. Children born to foreign parents in Germany before 01.01.2000 did not acquire German citizenship and cannot retroactively apply for citizenship under the above regulation.

                This more exclusive policy would not be right for the U.S., but I mention it to show that even places with affinity for citizenship by parentage are tending to expand their commitment to claims of citizenship through birthplace. If America did away with birthright citizenship, we would move in a contrary direction from the countries we would supposedly be emulating.

            • Manny Kant

              Yes, it was about the citizenship of freed slaves, in the sense that the baby of a visiting French couple would already have been considered a citizen under common law. The 14th Amendment codified that, and everyone at the time would have recognized that. As others have pointed out, it’s not like jus soli was a new thing in 1866.

            • NBarnes

              As I mentioned earlier, it’s very clear the 14th Amendment was about the citizenship of the freed slaves, not about setting immigration policy for the future.

              If you’d clicked through to the links, you’d look a lot less stupid right now.

            • Mark Field

              If you take the position that the 14th A was only about the freed slaves, then the text couldn’t be used to protect the rights of women or ethnic minorities other than blacks. Is that the interpretation you want to adopt?

        • witlesschum

          Where or whether we are born is arbitrary by definition, as we had no choice in the matter.

          Seems to me that there’s no particular reason to use citizenship rights of the parents over geography, especially given the current facts of our fucked immigration system and the lack of negative consequences to using geography. It’s more in keeping with the American ideal chiseled on that big green lady to say “Sure, French tourist baby, c’mon in.”

        • Murc

          Seems to me citizenship rights of the baby should be derived from the citizenship rights of the parents, not on an accident of geography.

          What’s wrong with both?

          Am I missing something about the Constitution here? Is there some part of the document other than the 14th Amendment that confers citizenship on the babies of foreign nationals?

          Not that I’m aware of, but why does there need to be? the 14th Amendment is just as much a part of the document as any other part is.

          And please don’t site the Constitution as some sacred text anyway. Many, many LGMers have some part of the existing Constitution that they would like to see changed immediately, and some (like me) think the whole thing was pretty rotten to begin with.

          I answered what was asked. You asked by what right; my response was “by right of law.” It is entirely reasonable to move on from there to “well, that’s dumb and it should be changed” but if that was the point you wanted to make you should have started there to begin with.

        • Ahuitzotl

          Seems to me citizenship rights of the baby should be derived from the citizenship rights of the parents, not on an accident of geography.

          Why?

          • Bruce Vail

            Because the parents are the creators and the guardians of the infant. In our society, they are charged with care and feeding of the infant. Therefore it is their responsibility to secure the citizenship rights of the child.

            • witlesschum

              But why?

            • weirdnoise

              The parents, the creators and guardians, are here with their child, so they are “in our society.” Seems at least as reasonable a criterion as ancestry.

            • CJColucci

              Whatever the citizenship of the baby, it’s still the parents’ baby. If the parents are going back to France, they can take the US citizen baby with them. I wouldn’t want to opine on French citizenship law, but I’d imagine the kid would be considered a French citizen once the parents moved back with the kid.

        • djw

          Is there some part of the document other than the 14th Amendment

          Other than that, Mrs. Lincoln….

          But yes, as others have pointed out jus soli has a long tradition in common law and decisions about citizenship in the United States, as does jus temporis.

      • timb

        Ted Cruz was born in Canada and the Canadians don’t seem any worse for wear from his American mother non-citizen’s birth of a child on their soil.

        • David Hunt

          They’re only none the worse for wear because Cruz inflicted himself on us instead of them. I am viscerally aware of this as the man “represents” me in the Senate.

    • witlesschum

      Well, one reason the 14th Amendment was mainly about freed slaves was that it was that birthright citizenship was already considered settled law.

      This is a great example of why constitutional originalism in all its forms is pernicious nonsense. The 14th Amendment can be plausibly interpreted to guarantee birthright citizenship and and society’s better off with it interpreted that way. There’s no reason to change the interpretation other than to please racist crackpots who won’t be pleased anyway. Nothing to worry about can happen because your hypothetical French lady who just through an accident of birth has dual citizenship.

      The idea that people can, if they want, move here an become Americans is one of the few things about us that really is exceptional and I see no reason to fuck with that even a little.

      • Scott Lemieux

        This is a great example of why constitutional originalism in all its forms is pernicious nonsense. The 14th Amendment can be plausibly interpreted to guarantee birthright citizenship

        This is too weak. The 14th Amendment can be plausibly interpreted as granting same-sex couples equal access to marriage, no more and no less. It specifically and unambiguously gives birthright citizenship rights.

        • djw

          It’s worth noting that Bruce Vail is trying to invent a new version of originalism far sillier than the ones we’ve got–forget what amendments say, forget all evidence of the intent of the framers regarding the amendment’s scope, and focus only on the specific political controversy or crisis that provided the impetus for constitutional change and pretend the amendment only applies to that.

          Using Bruce’s novel new theory of constitutional interpretation, my law stripping the voting rights of 18-20 year old civilians should present no 26th Amendment issues, since that amendment was “about” the legitimacy crisis of drafting and sending to war those with no representation rights.

          • Scott Lemieux

            Although, in fairness, this silly form of originalism was pretty much what Miller did in the Slaughterhouse cases.

          • Joe_JP

            The idea that the 14A was “about” freedom of slaves also skips over various “specific” controversies of special concern such as the freedom of speech of white abolitionists. The 14A was “about” something broader.

            • djw

              Yes, it should be noted that his goofy constitutional theory can’t even deliver the result it was invented to deliver.

            • witlesschum

              It seems like the amount of state repression of white people in the name of slavery that went on is underrated. In some ways that’s a good thing and understandable, but I do think many, many people don’t understand how much better applying the Bill of Rights to the states made the country.

        • witlesschum

          Indeed, too weak.

    • matt w

      Murc has covered the rest of it, though with fewer swear words than I would have included, but:

      This borders on being a non-issue anyway. I mean, how many people are we really talking about here? Any sort of credible data on ‘anchor babies’ seems to be missing form this discussion.

      As of 2014, 16 fucking million children born in the US had at least one immigrant parent. That’s not counting all the older people who were born in the US to immigrant parents. Some of those had one citizen parent, but it’s safe to assume that millions had parents neither of whom were citizens.

      I’ve learned a lot about the Civil War from reading LGM and its absolutely clear the 14th Amendment was about the citizenship rights of freed slaves, not about immigration policy going forward.

      Well, if you’d clicked the fucking links, you’d have discovered that while the 14 Amendment was being discussed one Senator said “Does this cover children of Chinese immigrants in California?” and another responded “Yes this covers children of Chinese immigrants in California.” So it’s absolutely fucking clear that it was intended to apply to children of immigrants.

      • witlesschum

        Well, if you’d clicked the fucking links, you’d have discovered that while the 14 Amendment was being discussed one Senator said “Does this cover children of Chinese immigrants in California?” and another responded “Yes this covers children of Chinese immigrants in California.” So it’s absolutely fucking clear that it was intended to apply to children of immigrants.

        Ah, I also did not click the fucking links and happy to learn this.

      • Bruce Vail

        You’re very excitable.

        Obviously your 16 fucking million babies is a phony number and a phony idea. I never suggested that anybody have their citizenship taken away retroactively, and I doubt even Trump or his moronic followers would support that.

        The Chinese immigrants anecdote also phony. The 14th was about the freed slaves, and the fact that one senator wanted to ask about the Chinese is evidence that the 14th wasn’t as clear as it should be. And who can believe the 14th would have been proposed or passed if it was really about the Chinese?

        • somethingblue

          I doubt even Trump or his moronic followers would support that.

          You’re quite the optimist.

        • witlesschum

          So if people support a law which will do two things because they like the first thing, the second thing is not really a part of the law that counts.

          DEAR MR> PRESIDENT, THE 14TH AMENDMENT DOES TOO MANY THINGS THESE DAYS. PLEASE ELIMINATE THREE…

          • Bruce Vail

            I wish you’d get off this hobbyhorse, chum.

            A change in birthright citizenship rights would require a change to the law, or the Constitution, or both. These can be accomplished through the normal processes of legislation and amendment. Hopefully there would be an intelligent discussion of the public policy issues involved before any of these steps are taken.

            I recognize fully that Trump’s proposal is merely intended to appeal to potential voters who hate the Mexicans.

            Maybe we can just agree that Trump is a particularly slimy sort of faux politician and save a calm debate on rational changes to immigration policy for another day.

            • witlesschum

              I don’t believe I’m the one riding a broomstick and making my own galloping sounds, Vail.

              I don’t see you actually offering any sort of public policy reasons why we should change the law, the constitution or our minds. You said something like, I think it makes more sense in one place and in another said it should follow the parents because they take care of the child.

              But those are just vague and unpersuasive reasons to change anything, in my opinion. No discussion of human rights or harms or costs or benefits or even efficiency.

              I haven’t said I think you’re Donald Trump on the issue and I don’t, I do think you’re being a silly rules lawyer about it.

              • Bruce Vail

                Yes, thanks for making your points without screaming at me.

                By hobbyhorse I meant only the argument that existing law supports birthright citizenship, so therefore should be unassailable. It has always seemed to be there is a lot of bad law that is supported by the Constitution, and that both can and should be reconsidered from time to time.

                Discussion today here is causing me to rethink a number of my assumptions….

                • witlesschum

                  Well, I only scream when I’m quoting Grandpa Simpson and I like to think of it as more of a atonal bellow, like an early Hetfield. Scream makes me think of King Diamond.

                  We agree about the constitution supporting some very bad things, but for someone who says he doesn’t want to have that argument and would rather have the other argument about why amending the constitution to get rid of birthright citizenship is a good idea, you’ve turned down several different invitations to do so.

                • I’ll go further and say that (methodologically) any restrictions on citizenship (or differential treatment for different “kinds” of citizen) should be regarded with the level of suspicion that we give to restrictions on the franchise.

                  A stupid constitutional provision: Only natural born citizens can be president. This solves a non problem at the cost of creating a second classness to naturalised citizens which, while not having a lot of material affect except maybe on Schwarzenegger, still is offensive and supports some offensive behaviour.

                  A non-stupid constitutional provision: Birthright citizenship. You need a powerful argument against it and the burden of proof is strongly on you. Oh, and it needs to be both conceptually good and empirically good, i.e., for the latter it really has to solve a problem and not be used for massive anti-esp-brown immigrant actions. Good luck with that!

                  A good restriction: Some attenuation of inherited citizenship if an actual open border policy would be a bad idea. See the Irish case MacK discusses below. However, I think a fairly open border principles is a good idea :)

                • witlesschum

                  I’ll go further and say that (methodologically) any restrictions on citizenship (or differential treatment for different “kinds” of citizen) should be regarded with the level of suspicion that we give to restrictions on the franchise.

                  I very much agree with this and repeat what I’ve said elsewhere. The idea that whoever wants to come be an American can do so and they’re just as good (or bad) as anyone else is about the best idea the U.S. has ever come up with.

        • Manny Kant

          What on earth are you even saying here? At the time, everyone recognized that the citizenship clause applied to immigrants as well as freed slaves and free blacks. What more do you need, exactly?

          • Bruce Vail

            Well, I don’t ‘need’ anything exactly.

            I’m just suggesting that a backhanded immigration policy based on a political emergency of 1866 may not the best thing going forward.

            Call me a radical…

            • Malaclypse

              What problem will this change solve?

              • somethingblue

                I too would be interested in the answer to this question.

            • Manny Kant

              But, again, it was already accepted that any white person born in the US was a citizen. The 14th Amendment just codified this and extended it to non-white people. The basic just soli idea was not “based on a political emergency of 1866” – it was based on hundreds of years of common law.

        • You’re very excitable.

          Sorta proportionately to your stubborn wrongness. Given that your wrongness is friends to very offensive politics, I think some excitability is warranted.

          Obviously your 16 fucking million babies is a phony number and a phony idea.

          *Obviously*!? it is not the case that 16 million children (or more!) are children of immigrants? From the link:

          The population of first- and second-generation immigrant children in the United States grew by 51 percent between 1995 and 2014, to 18.7 million, or one-quarter of all U.S. children. – See more at: http://www.childtrends.org/?indicators=immigrant-children#sthash.DQuGgYXO.dpuf

          matt w’s version:

          As of 2014, 16 fucking million children born in the US had at least one immigrant parent.

          That’s seems close enough. And BTW, *you* asked the question!:

          This borders on being a non-issue anyway. I mean, how many people are we really talking about here? Any sort of credible data on ‘anchor babies’ seems to be missing form this discussion.

          So why isn’t this stat credible? Because you don’t like it? Because you were hoping you could pretend that other people knew as little about what they were talking about? What? Help me out! I truly don’t understand what you think you were doing.

          I won’t bother with the rest as it’s pretty equi-wrong and this is pretty damningly wrong. Both factually and wrong headed. You cannot insist that “how many” is important and then dismiss a credible answer just becauses.

          • matt w

            In fact I was specifically taking off from this:

            By 2014, the population had grown to 18.7 million, including 2.8 million first-generation and 15.9 million second-generation immigrants.

            and

            Note: Immigrant children are defined here as those who have at least one foreign-born parent. First-generation immigrant children are those who were born outside the United States, and second-generation immigrants are those who were born within the United States or its territories.

            So, I rounded up from 15.9 million.

            • I rounded up from 15.9 million.

              You monster.

        • matt w

          I may be excitable, but you’re a stupid fucking racist piece of shit who can’t understand a fact when he’s smacked in the face with it. I know which I’d rather be!

          Obviously your 16 fucking million babies is a phony number and a phony idea.

          What? Fuck you. You asked how many American citizens were born to non-citizen parents, and I answered it. I also said that not all 16 million kids met the qualification, but that it’s probably a pretty high proportion who do.

          Do you know the word for someone who calls a number phony because he doesn’t like it? A Republican.

          Oh, and genius: If millions of kids have been born on US soil to noncitizen parents in the last sixteen years, how many kids do you think are going to be born on US soil to non-citizen parents in the sixteen years after you abolish birthright citizenship? Could it be… millions?

          You said that birthright citizenship wasn’t a big deal because it didn’t affect that many kids. I gave links showing it did. Now you’re whining about tone.

          The Chinese immigrants anecdote also phony. The 14th was about the freed slaves, and the fact that one senator wanted to ask about the Chinese is evidence that the 14th wasn’t as clear as it should be. And who can believe the 14th would have been proposed or passed if it was really about the Chinese?

          Oooooohhhh someone came up with a fact I don’t like. WAHHHHHHHH!

          You stupid sniveling piece of shit.

          • matt w

            And Bruce: There’s a reason I’m calling you names. Your position is as execrable as “What’s wrong with separate but equal? It says equal right there!”

            I want to make you feel unwelcome, because there’s no reason you should feel welcome.

            • Bruce Vail

              We are both stubborn, and I deny being a racist piece of shit.

              • djw

                I’m willing to believe that you don’t understand yourself to be a racist piece of shit. But your willful blindness to the racial consequences of your preferred policies makes it difficult to swallow.

                Consider that there is a group of people (let’s set aside the debate about how large that group is) who were born here, raised here, educated here, employed here, and have a social and familiar network here, and have few connections in the country of their parents citizenship, which they have never visited, and in some cases may have difficulty attaining citizenship rights in the country of their parents citizenship. You’re proposing a change in the law that would impose a significant an intimidating hurdle on this (again, largely non-white) population, threatening their right to employment, removing their right to political representation, and exposing to notoriously capricious and arbitrary immigration bureaucracies. And for what?

            • Bruce Vail

              And I certainly will concede after reading this discussion that I was wrong that the 14th amendment being misapplied. I was aware that the issue of Chinese immigrants had come up at the time, but my understanding that this had been a rhetorical/political tactic to stop the amendment was apparently wrong.

              • Thanks for conceding this and clearly. It’s a helpful step.

        • Hogan

          And who can believe the 14th would have been proposed or passed if it was really about the Chinese?

          It was pointed out explicitly in the Senate that it does apply to the Chinese. Then it passed without changes. What is it I’m supposed to not believe?

          • Bruce Vail

            I conceded to matt w above, as well as to a lot of other LGMers, that I was wrong about the misapplication of the 14th amendment.

            The comment of mine that you highlighted was sort of an aside to suggest that if the 14th amendment had been primarily about validating the rights of Chinese immigrants then it probably would not have been ratified. That’s just a supposition on my part, and may also be wrong.

        • Scott Lemieux

          The 14th was about the freed slaves

          You keep asserting this. It is not actually true.

          the 14th wasn’t as clear as it should be.

          So your argument is that the 14th Amendment exclusively pertains to freed slaves even though 1)nothing in its text suggests this and 2)the ratification debates do not support this. Are you sure you aren’t the clerk who drafted Shelby County?

          At any rate, on the point of birthright citizenship, the text is perfectly clear: the 14th Amendment establishes it categorically. You’re provided no evidence that the framers or ratifiers of the amendment opposed this but it also doesn’t matter.

      • As of 2014, 16 fucking million children born in the US had at least one immigrant parent.

        That includes me, my mom was an immigrant and I can trace ancestors on my father’s side to 1640’s New Haven.

        • Me too! And I have cousins with two immigrant parents.

          And my grandmom! (Child of two immigrant parents!)

        • matt w

          Yeah, definitely at least a large proportion of the 16 million have one citizen parent. But I’d say that a floor for the proportion that have zero citizen parents is something like 5 million.

        • And my kids, though their mom has since naturalized herself (never could resist the chance to ace a test, bloody Asians).

    • Scott Lemieux

      its absolutely clear the 14th Amendment was about the citizenship rights of freed slaves, not about immigration policy going forward.

      What?

      Anyway, what the 14th Amendment was “about” is beside the point. What matters is what it says, and what it says is that people born on American soil are American citizens, the end. And its framers had very good reason to be categorical in the language.

    • DAS

      its absolutely clear the 14th Amendment was about the citizenship rights of freed slaves, not about immigration policy going forward.

      I don’t know if you can disentangle the immigration policy question from the slavery question. Suppose we undo jus soli citizenship, then what happens to the children of (illegal) immigrants born in the USA? They are not necessarily going to be deported (nor will even a GOP led executive branch be willing or able to deport even all illegal immigrants), but rather they would be a class deprived of citizenship but resident in the USA without full protection of our laws. They and their descendants would be an exploitable class tantamount to a slave class, without the masters having any obligations of “ownership”.

      And isn’t that the real point of the GOoPer immigration policy? Get the base so riled up about immigrants, there is no support for giving any rights to “illegal” immigrants but, when push comes to shove, only enforcing immigration law enough to keep “illegal” immigrants afraid of seeking any assistance from authorities should they be exploited?

  • Manny Kant

    When Kentucky Sen. Rand Paul first ran for the Senate in 2010, he said he didn’t “think the 14th Amendment was meant to apply to illegal aliens.”

    Well, I mean, in the sense that there was no such thing as an illegal alien in 1866 because there were basically no limits on immigration.

    • What I wanted to say. Or, logic permits us to say that it applies to all aliens, legal or otherwise, since it did apply to the legal ones as amply demonstrated above and the illegal ones didn’t exist until the passage of the Chinese Exclusion Act in 1882.

      In United States v. Wong Kim Ark (1898), the Supreme Court ruled that

      the citizenship language in the Fourteenth Amendment encompassed essentially everyone born in the U.S.—even the U.S.-born children of foreigners—and could not be limited in its effect by an act of Congress.

      An act such as the Chinese Exclusion Act, in other words. So there is really no question.

      • ajp

        According to Wikipedia “legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally.”

        So this looks like the soft underbelly of the law. A lot of Republicans seem to be jumping on board for this. You think the Republican justices on SCOTUS wouldn’t toe the party line on this? You add a bunch of conservative “scholars” doing a full court press on the issue, litigating the test case…I dunno, I think the Republicans could pull it off. King v. Burwell gives me some hope that at least Roberts and Kennedy aren’t that far gone, but who knows.

        Saying there really is no question strikes me as naive. With the modern Republican Party? With our current Supreme Court? Let’s not underestimate the damage that can be done. This means that holding onto the Supreme Court is important for yet another reason.

        • Scott Lemieux

          Obviously, a Republican Supreme Court might ignore the unambiguous text of the 14th Amendment. This doesn’t make the text any less unambiguous.

          • NonyNony

            With our current court I’d expect it to be a 6-3 decision, with Kennedy and Roberts siding with the sane members of the court.

            And yes – I’d expect Scalia to side with the “you should interpret the 14th amendment as not applying to undocumented immigrants because reasons”. Despite his vaunted originalism. Because he’s a right-wing hack.

          • Davis X. Machina

            It’s right next door to the equally unambiguous text of the 15th Amendment, and we know how well that went.

        • Bill Murray

          According to Wikipedia “legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally.”

          does “he citizenship language in the Fourteenth Amendment encompassed essentially everyone born in the U.S.—even the U.S.-born children of foreigners” mean something other than what it clearly says? I certainly can believe that scholars will disagree over everything small and large, but that does not make both sides equal in their interpretation

          • Davis X. Machina

            “Legal scholars” covers a lot of ground…

            Especially in Wisconsin, I understand. Oh, and California. And Tennessee.

          • Manny Kant

            I mean, to assert that the children of people in the country illegally don’t count, you’d have to assert that the US doesn’t have legal jurisdiction over such people – that they have something akin to diplomatic immunity or are “domestic dependent nations” like Indian tribes. Pretty clearly none of that applies.

        • If you look at the footnotes to that Wikipedia passage you will see that they only cite unreserved agreement with the principle that the precedent applies universally. There is no serious dispute, as the article on the whole makes clear. Even Rand Paul has learned that a new amendment would be needed to change the law. (Trump and Walker, of course, and Santorum, haven’t got the memo.)

  • MacK

    Not to say I object to Jus Soli, but a few interesting aspects of it and Jus Sanguinis.

    As originally formulated these rules were based on the idea of a population as an asset, effectively of the crown in any given jurisdiction, and to a lesser degree to the idea that a state owed a duty to its citizens. In effect it was a question of who was entitled to claim the loyalty and labour of a person, who was their king to whom their feudal duties flowed, and what king was insulted by say, the cutting off of an ear. Only really in the 20th century did the idea morph into who had what rights (with the exception of the US.)

    Jus sanguinis, tends to engender considerable hypocrisy. To take an example, Ireland and Germany. For a very long time Ireland had a straight Jus sanguinis law, but the rest of the EU, principally Germany and to a lesser degree the UK started to get the vapours when counts were made of the global population of Irish descent – some 80 million (including 36 million in the US) claim Irish as their primary ethnicity, and it is broadly estimated that this may be a lot less than those who could, with a bit of digging, find an Irish ancestor hidden in the family tree (nobody really knows but guesses range over 100 million), and there are a lot in Latin America, Australia, the Carribean and among Eurasians in India, Pakistan, etc. The population of the entire Island of Ireland is around 6 million. This led to some panic because someone who is an Irish citizen is automatically an EU citizen – and can move and live anywhere in the EU. One effect of this was that the 1986 Nationality Act restricted the open-ended citizenship by descent granted by the 1956 Act by dating the citizenship of third, fourth and subsequent generations of Irish emigrants born abroad, from registration and not from birth. This limited the rights of fourth and subsequent generations to citizenship to those whose parents had been registered before their birth. However, Gemany, though it pressed the Irish to modify its system, kept open ended German jus sanguinis, in effect having urged a change in other EU countries’ laws that it would not adopt itself.

    And finally, it should be noted that Israel has the one-sided law of return.

    • witlesschum

      Allegedly one of my Irish ancestors deserted from the British Army and took up residence in New Jersey during the American Revolution. I can see the point that, even if he wasn’t made up by my alcoholic grandmother, he shouldn’t really give me any more right than anyone else to move to Ireland.

    • matt w

      However, Gemany, though it pressed the Irish to modify its system, kept open ended German jus sanguinis, in effect having urged a change in other EU countries’ laws that it would not adopt itself.

      I am shocked that Germany would force other EU countries to change a law that they don’t change themselves. Next thing you’ll tell me that they benefited from debt forgiveness before opposing it for other countries.

      • nixnutz

        I think he’s wrong though. I looked it up again, this is a matter I have some interest in since my mother was born in Germany, and their law seems to apply only to the first generation, “A child becomes German through birth if at least one parent holds German citizenship.” So I think I could only apply if my mother were first to apply for re-naturalization, although since that seems to be basically automatic maybe I should ask her to do so. Under the Irish law not just I but my niblings would be eligible, despite my mother’s sole American citizenship, that’s a pretty big difference.

    • Steve LaBonne

      Jus sanguinis is crazy. Two of my grandparents were born in Ireland, and this is easily documented from US census records, so I could readily qualify for an Irish passport. Yet I have no connection with Ireland nor even any particular affinity for Irish culture. What sense does it make to define me as a (potential) citizen but not someone born and raised there? How is it in any way just?

      • MacK

        It may not be just, but if you want your kids to be able to work easily in the EU, you may want to get on the register of foreign births before they are born.

        Is it just, meh! There is very little that is ‘just’ in immigration law IMHO. Think of those who by their actions and words deserve to have their US citizenship questioned – Ted Cruz, Rush Limbaugh, etc. Think of these who have become US citizens despite showing very little real belief in what one might call American Values – Rupert Murdoch (who has changed his citizenship for commercial reasons from Australian, to UK, to US.)

      • John F

        Jus sanguinis is crazy. Two of my grandparents were born in Ireland, and this is easily documented from US census records, so I could readily qualify for an Irish passport.

        All 4 of my grandparents were born in Ireland…

        Yet I have no connection with Ireland nor even any particular affinity for Irish culture.

        I have never been to Ireland, but I am reminded of my essential Irishness any time I forget to wear sunblock on a sunny day…

    • wjts

      My favorite joke about the Irish national football team is that potential players must produce hard evidence that they (or one of their ancestors) once had a layover at Shannon Airport.

  • dp

    Re: the caption.

    Don’t we have one already?

  • Jake the antisoshul soshulist

    As I wrote on another board, if the Republican Party was still the party of Lincoln and Stevens, and not the party of Calhoun and Koch, I would be a Republican.

    A question I would like someone to visit, is how many “illegal” immigrants cross over the border from Canada. I doubt that as many cross as from the south, but I do suspect it would not be an insignificant number. But, for some reason, that does not seem to be a concern.

    • JL

      I’m not sure about Canada, but a large portion, possibly around 40%, of undocumented immigrants in the US came with temporary documentation of some sort – a student visa, a tourist visa – and then stayed after it expired. Which means they could have arrived through either border, a plane, or a ship.

      • Bill Murray

        we need to bar all transport from foreign countries. Wait many of those people are white, so it’s OK

        • njorl

          A lot of those white countries believe in universal healthcare and free university education, so it’s probably for the best encase the US in a giant lucite dome.

  • Joe_JP

    The concerns of Walter Dellinger discussed in the last link reminds me of the Haiti/Dominican citizenship matter covered here:

    http://www.dorfonlaw.org/2015/08/the-human-rights-disaster-in-dominican.html

  • somethingblue

    And for a political party desperately trying to improve its standing with Hispanic and other minority voters, it could portend a damaging bend toward nativism.

    This is maybe the funniest thing I have read on the intertubes this week.

  • Funkhauser

    Look, let’s just recommission the MS St. Louis and put all newly-stateless children of illegal immigrants on it, and have them find a country where they can be accepted as citizens. They could stay as Reich American citizens if they pledge loyalty, but, you know, gotta make children pay for the decisions of their parents.

    • Bill Murray

      It could be a Brave New World

  • Funkhauser

    [double post?]

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  • Timurid

    This isn’t really about immigration.
    The long game here is about making citizenship conditional for anyone born in this country. The plan is to return to a pre-Jacksonian republic where (full/voting) citizenship is reserved for those who have “earned” it. It’s the only way their party/ideology can remain dominant, or even relevant, in the face of coming demographic and economic changes. It’s uncertain whether they can get this done before they run out of time, but they’re going to give it their best shot.

    Appealing to the electorate’s fears about immigration and related issues like terrorism and drugs is just a way to start the stone inching down the slippery slope…

    • Malaclypse

      The plan is to return to a pre-Jacksonian republic where (full/voting) citizenship is reserved for those who have “earned” it.

      It always astounds me that people read/watch Starship Troopers and come away thinking this is a great idea.

      • Timurid

        In this case they’d be earning it not by serving in the military but by making (or inheriting) enough money.

        • nixnutz

          The system I’m imagining would be to use a college degree as the qualifier for full optimo iure citizenship. Military service could still be a path for children of plebeians to achieve this, the elite educational system would serve as a proxy for the nobility and others would have to borrow enough from anointed lenders to pay for STEM degrees from for-profit institutions.

          There are a couple of big changes in there but the rest is stuff we’re working on already.

      • It always astounds me that people read/watch Starship Troopers and come away thinking this is a great idea.

        They see the unisex shower scene and decide that’s the society for them.

      • somethingblue

        “If I can take on 100,000 teachers back in Madison, I can stand up to the Bugs.”

    • witlesschum

      Well, that’s crazy. It’s not like the party’s last nominee denounced large portion of the country’s citizens as useless moochers…

      Seriously, I don’t think it’s correct to say it’s not really about immigration, I think it’s that it’s not only about immigration.

  • rewenzo

    Just as an FYI to everyone, the Legitimate Conservative Legal Intelligentsia is already well on their way to interpreting the 14th Amendment to not require birthright citizenship. Was over at The Corner today, and it seems that Trump’s reading is carrying the day amongst such luminaries as Andrew McCarthy and Rich Lowry. The guys at Volokh can’t be too far behind.

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