Back in the 1990s, when the idea of ending birthright citizenship was being floated by people like Peter Brimelow and John O'Sullivan at National Review, they at least had the decency to acknowledge that they were advocating a constitutional amendment.
One other group not being considered is adopted individuals like myself. I am almost certain my birth parents citizenship was not verified when they gave me up. The records were then sealed. I know I was born in Los Angeles county but who determined my parents were citizens. My adopted parents were legal citizens so does that make me a citizen because of that? I don't think any of this was previously spelled out because of the 14th amendment.
Yeah, this is one of the many practical questions that the citizenship denialists don't seem to have thought about. Here are several others:
Who actually is undocumented? The category is fuzzier than they appreciate. For example, US law allows people who have crossed without authorization to seek asylum. See 8 U.S.C. § 1158 Is someone with a pending asylum claim "undocumented" for the purposes of making their children stateless?
On the invasion theory, how far back does this "invasion" go? Is someone whose parents immigrated without authorization 20 years ago the child of an invader? It's a funny old invasion that can potentially go on for decades without anyone noticing.
I really do believe the intent of all this nonsense is to ferret out brown and black children for deportation and the denial of basic rights. Chances are if you are of East Asian or European descent or have white parents you will have nothing to fear and your birth citizenship will go unquestioned.
"The Dreamers" have a paper trail and I imagine they will be among the first that Trump tries to deport. They are an easy target as they were in fact born elsewhere and brought here "illegally." Then will come the children born here whose parents get caught up in the deportation net. Today their custody can be transferred to naturalized family members but it seems under Trump's plans they would just be deported along with their parents.
The XIV Amendment was passed in a time where there was no real concept of "illegal immigration" and gaining citizenship was much simpler. Most of my ancestors became citizens simply by renouncing allegiance to former monarchs and providing witnesses attesting to one's good character. Their wives and minor children were considered citizens upon their naturalization. Even before the amendment white children born here were considered citizens automatically. One of my ancestors was born in 1813 "at sea" to noncitizen parents on an American ship and was considered a citizen of Pennsylvania upon arrival.
A lot of these “the Constitution is Clear!” takes just don’t mention at all the fact that the Constitution is whatever 5 Trump appointed justices say it is.
Foreign invading soldier rapes American woman (a la Soviet Army in Germany towards close of WW2) in Texas. She wants abortion (documented desire) but cannot procure one (Texas civil and criminal law and all that). Child is born. Soldier is posted back to his own country and forcibly (no consent) takes child with him. Mother sues under international law for return of child. Rapist defends on grounds that child is not a US citizen, citing 14th Amendment, therefore no international convention jurisdiction.
Who wins? I say the mom as the mom is an American citizen and the child was born here. Not like child was born into a diplomat’s family. Being unwanted is irrelevant.
The exceptions to jurisdiction apply to those sent here by a foreign sovereign to do the work of the foreign sovereign and subjection to US jurisdiction would interfere with that work. Hence the obvious exclusion of foreign armies and diplomats. The rule of reciprocity in international law grants the same privileges to American military and diplomatic personnel.
Obviously, undocumented aliens are not here at the direction of their native sovereign and are not doing their sovereign's work. Additionally, the exercise of sovereign jurisdiction by the US does not interfere with their work. Accordingly, the child born in the US of undocumented aliens is an American citizen unless covered by an explicit exception. The citizenship of the parent, save for those exceptions, doesn't enter into the equation.
I think the logic of your first paragraph is exactly the right way to think about it. We typically claim everyone born on our soil, except where international principles of respect for other sovereigns (like with diplomats or Native nations) or conflict with them (like with invasions) dictate otherwise.
Sure the U.S. is! It has been such a TERRIBLE place to live! Only DJT can save the nation! He is such a good Christian man, you know -- "Be ye kind to one another," "Love your enemy like yourself," "Be quick to forgive," and "Thall shall not commit adultery," and all that silly stuff.
Back in the 1990s, when the idea of ending birthright citizenship was being floated by people like Peter Brimelow and John O'Sullivan at National Review, they at least had the decency to acknowledge that they were advocating a constitutional amendment.
One other group not being considered is adopted individuals like myself. I am almost certain my birth parents citizenship was not verified when they gave me up. The records were then sealed. I know I was born in Los Angeles county but who determined my parents were citizens. My adopted parents were legal citizens so does that make me a citizen because of that? I don't think any of this was previously spelled out because of the 14th amendment.
Yeah, this is one of the many practical questions that the citizenship denialists don't seem to have thought about. Here are several others:
Who actually is undocumented? The category is fuzzier than they appreciate. For example, US law allows people who have crossed without authorization to seek asylum. See 8 U.S.C. § 1158 Is someone with a pending asylum claim "undocumented" for the purposes of making their children stateless?
On the invasion theory, how far back does this "invasion" go? Is someone whose parents immigrated without authorization 20 years ago the child of an invader? It's a funny old invasion that can potentially go on for decades without anyone noticing.
Excellent explanation of our Constitution and the legal precedents. Thank you so much
This article is a clinic. Tightly argued and right on point. Fantastic work.
I really do believe the intent of all this nonsense is to ferret out brown and black children for deportation and the denial of basic rights. Chances are if you are of East Asian or European descent or have white parents you will have nothing to fear and your birth citizenship will go unquestioned.
"The Dreamers" have a paper trail and I imagine they will be among the first that Trump tries to deport. They are an easy target as they were in fact born elsewhere and brought here "illegally." Then will come the children born here whose parents get caught up in the deportation net. Today their custody can be transferred to naturalized family members but it seems under Trump's plans they would just be deported along with their parents.
The XIV Amendment was passed in a time where there was no real concept of "illegal immigration" and gaining citizenship was much simpler. Most of my ancestors became citizens simply by renouncing allegiance to former monarchs and providing witnesses attesting to one's good character. Their wives and minor children were considered citizens upon their naturalization. Even before the amendment white children born here were considered citizens automatically. One of my ancestors was born in 1813 "at sea" to noncitizen parents on an American ship and was considered a citizen of Pennsylvania upon arrival.
Thanks so much for this superb explanation of the subject!
Well done!
A lot of these “the Constitution is Clear!” takes just don’t mention at all the fact that the Constitution is whatever 5 Trump appointed justices say it is.
People crossing the border to pick lettuce is not an invasion. Sit down.
Thank you. Now here’s a scenario for you:
Foreign invading soldier rapes American woman (a la Soviet Army in Germany towards close of WW2) in Texas. She wants abortion (documented desire) but cannot procure one (Texas civil and criminal law and all that). Child is born. Soldier is posted back to his own country and forcibly (no consent) takes child with him. Mother sues under international law for return of child. Rapist defends on grounds that child is not a US citizen, citing 14th Amendment, therefore no international convention jurisdiction.
Who wins? I say the mom as the mom is an American citizen and the child was born here. Not like child was born into a diplomat’s family. Being unwanted is irrelevant.
The exceptions to jurisdiction apply to those sent here by a foreign sovereign to do the work of the foreign sovereign and subjection to US jurisdiction would interfere with that work. Hence the obvious exclusion of foreign armies and diplomats. The rule of reciprocity in international law grants the same privileges to American military and diplomatic personnel.
Obviously, undocumented aliens are not here at the direction of their native sovereign and are not doing their sovereign's work. Additionally, the exercise of sovereign jurisdiction by the US does not interfere with their work. Accordingly, the child born in the US of undocumented aliens is an American citizen unless covered by an explicit exception. The citizenship of the parent, save for those exceptions, doesn't enter into the equation.
I think the logic of your first paragraph is exactly the right way to think about it. We typically claim everyone born on our soil, except where international principles of respect for other sovereigns (like with diplomats or Native nations) or conflict with them (like with invasions) dictate otherwise.
Does Trump’s recent praise for Eastman mean he’s preparing to push these birthright citizenship arguments?
https://publiclawlibrary.org/trump-screens-controversial-documentary-at-mar-a-lago-reigniting-election-dispute-debate/
Your understanding of "invasion" is historically, legally, and grammatically illiterate.
Correlation = causation, sure. Your understanding of statistics rivals your understanding of the word "invasion".
Well, I'm crushed. I'll try not to cry myself to sleep tonight.
Sure the U.S. is! It has been such a TERRIBLE place to live! Only DJT can save the nation! He is such a good Christian man, you know -- "Be ye kind to one another," "Love your enemy like yourself," "Be quick to forgive," and "Thall shall not commit adultery," and all that silly stuff.