Trump and the 14th amendment.

[Kidlicious]

We haven't even seen the EO yet. People are going just on what Trump said. He isn't going to make a whole bunch of Hispanics non-citizens.

[Dinner]

Indians had (have?) their own tribal governments with their own laws.

Foreign countries don't?

[Dinner]

https://www.nbcnews.com/news/amp/ncna926501

NBC News is saying there actually are legal questions for the court to decide.

[Kidlicious]

II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

This fundamental principle, with these qualifications or[p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-6a, 18a,18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co.Lit. 8a, 128b,Lord Hale, in Hargrave's Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.

In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: "The question of naturalization and of allegiance is distinct from that of domicil." P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:

The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.

And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which

the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy,[p657] must depend,

he yet distinctly recognized that a man's political status, his country, patria,and his "nationality, that is, natural allegiance," "may depend on different laws in different countries." Pp. 457, 460. He evidently used the word "citizen" not as equivalent to "subject," but rather to "inhabitant," and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

The ruling in Wong is based on Common Law

[Kidlicious]

After reading over that a couple of times I have to say that it doesn't look like the President could win this in Court.

[Kidlicious]

It is obviously not a literal reading. And probably not an originalist reading. Illegals are definitely under the jurisdiction of the US, otherwise we couldn't send them to jail/etc. They would be treated like diplomats!

Additionally, part of the push for the 14th was stability after the civil war. If you suddenly have it that people are being made non-citizens (or citizens) by EO then you stop having a stable set of citizens (who can vote) and you can forget about having a stable democracy. So even if you decide that it was originalist that the children of tourists and illegal immigrants are not citizens, and that the conflict between originalist and literalist interpretations are not important, you still wouldn't want to do it by EO.

JM

Non-citizens have to obey laws but they are not treated as citizens in every respect. They can't be drafted for example. IOW they are not subject to the jurisdiction in that respect.

[Jon Miller]

It is an interesting argument and may, in an outside chance, actually succeed. Either way at least courts would rule on this century old issue.

It was settled until about 2015.

I don't think that the courts should need to rule on settled law. You could argue that the fact that it is settled law is a reason not to revisit it, especially for something like citizenship.

JM

[Jon Miller]

We haven't even seen the EO yet. People are going just on what Trump said. He isn't going to make a whole bunch of Hispanics non-citizens.

An honest application would not just make a bunch of Hispanics non-citizens. It would throw the citizenship of most Americans into doubt. Including whites.

Of course, nothing about Trump suggests that it would be an honest application. There would be a de facto 'white exception'. Making it something more similar to the pograms in Europe or against the Native Americans of 100-200 years ago.

JM

[Jon Miller]

https://www.nbcnews.com/news/amp/ncna926501

NBC News is saying there actually are legal questions for the court to decide.

NBC News is wrong in presenting the views of a few quacks as serious as the vast majority over the last 120 years. And those quacks ignore the issue of precedent and how crazy it would be to implement the change now (versus making it clear in the original amendment and not having birthright citizenship for the last 120 years).

It wasn't just Fox News that enabled the craziness of right's quacks, it was the mainstream news treating them seriously.

JM

[Jon Miller]

Read the article and follow the sources. Much is explained about their argument.

I am saying 75% chance this fails but there is indeed a fair chance their arguments may actually win over 5 on the SCotUS.

The problem is that if you take every crackpot seriously, you end up having a non-negligible chance of doing craziness fairly often.

This should go back to not being considered... how have we as a nation gotten here?

JM

[ZEE]

I am so proud to be an American right now.

[Proteus_MST]

An honest application would not just make a bunch of Hispanics non-citizens. It would throw the citizenship of most Americans into doubt. Including whites.

Of course, nothing about Trump suggests that it would be an honest application. There would be a de facto 'white exception'. Making it something more similar to the pograms in Europe or against the Native Americans of 100-200 years ago.

JM

In wonder what Barron Trumps status would be if it would be applied honestly.
Melania Trump married Donnie in 2005, but only became US citizen in 2006, the same year that Barron was born.
Considering that Barron was born in March, there may be a real possibility that Melania obtained citizenship only later this year, after his birth.

So, lets say Trump would declare that the 14th amendment would be revoked retroactively for the last 2 decades, and lets assume Melania obtained citizenship only after Barron was born ...
would this result in Barron losing his citizenship?
After all, despite the fact that his mother was married to a US citizen at this time, Barron would have been born to a non citizen

[spambot]

Foreign countries don't?

They do, inside their own borders.

[Kidlicious]

An honest application would not just make a bunch of Hispanics non-citizens. It would throw the citizenship of most Americans into doubt. Including whites.

Of course, nothing about Trump suggests that it would be an honest application. There would be a de facto 'white exception'. Making it something more similar to the pograms in Europe or against the Native Americans of 100-200 years ago.

JM

No. Australia already did this. You are fearmongering.

[Proteus_MST]

No. Australia already did this. You are fearmongering.

Aren't you a big fan of fearmongering?
After all, Trump does so all the time
(currently for example with regards to the group of asylum seekers from Honduras who are on their way in order to seek asylum in the USA and escape the violence in their homeland)

[Kidlicious]

Aren't you a big fan of fearmongering?
After all, Trump does so all the time
(currently for example with regards to the group of asylum seekers from Honduras who are on their way in order to seek asylum in the USA and escape the violence in their homeland)

Too many immigrants from countries like Honduras is an actual danger. But you and JM love to fantasize about dangers and then run around like chickens with their heads cut off.