Trump's Immigration Plan

[HiTemp]

No, but the 4th does tell us how rights can be abridged and how no rights are absolute in any circumstance and that there is cause to abridge them in some cases. And since we are going to absurd lengths in semantics, when you are arrested and imprisoned for a crime you most certainly are seized by the state. Further, when imprisoned by the court it is done through a warrant, a written order of the court, and are deprived of all except most basic of rights as part of the sentence.

The 4th Amendment doesn't say that at all. Here's what it does say:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The history of this Amendment has to do with what were called "general warrants." These were a loose type of warrant that the British government authorities would order the local magistrates to issue, and they were often ordered based on rumor or innuendo that some colonist or colonists were holding out on British tax collectors. You can look up the 1761 court case of James Otis. That serves as a kind of sensor for what was happening, what the objections were, and what kinds of abuse were on the minds of the authors of that amendment 20 years later. That amendment forms a shield against the abuses of Otis' day by the demand for 1)probable cause vs. rumor, 2)specificity as to what/where is searched and what is sought, and 3)a record of who swore the facts to be true. It doesn't say anything about the abridging or absoluteness of any rights.

I'm thinking you probably meant the 14th Amendment, Section 1, the part about depriving citizens and due process.

What cause is that? The crime of their mother? I would really love you to show me that anywhere in our criminal code that the crimes of a person can be punishable upon their children.

I think I addressed this earlier but to reiterate it is not a matter of "punishing." It's weighing the granting of citizenship as a result of a criminal act of trespass PLUS the negligent act of a government refusing to enforce its own laws versus the harm done to society as a result of granting those rights AND failing to enforce those laws. As a normal course of events, we as a nation don't generally reward criminal behavior because doing so provides an incentive to break the law. When it was easy to get Medicare to pay for just about anything a doctor billed for, look what happened... doctors and medical providers abused hell out of the system. The system cracked down to such a point that now you won't be treated very long or very much until there is some certainty your "cause" will pass muster with Medicare or some insurance provider. Pendulum swung the other way.

In this case, we have a flood of people sneaking into the country ONLY to have their kid(s) here because they know how the system works. The kids will be granted citizenship, and as the parents they will de facto be allowed to stay here AND receive all manner of free handouts, from food, clothing, shelter, education, job opportunities, etc. It's like a burglar breaking into a store and when caught, but as long as they've stuffed ONE item sold by the store into their pocket, they are considered an employee of the store, given a discount on anything they buy in the future, granted two weeks vacation pay, health insurance, and a company car to use. Who wouldn't want to break in for that good deal?

That's problematic to me in and of itself, but the larger issue is the burden it is placing on systems that were built and funded to take care of our society under the presumption immigration would work as designed. That is to say, is NOT unlimited and unchecked. Prison overcrowding. Spread of disease. Massive load on budgets to the point the systems are breading down. That's the real and documented results of this particular folly in policy.

So it needs to be addressed. These problems give the government something to show as "cause" to why the needs of government/the nation outweigh the needs of geographically lucky infants (and their parents). You might recall just a few years ago the SCOTUS giving us Obamacare and Chief Justice Roberts dissertation on compelling interests of government being constitutionally a just reason to compel us each to purchase health care or be fined where, for 237 years, no one thought "government" had the power to compel any citizen to buy anything against their will. So, I'll ask you - is this law "constitutional" or not? The SCOTUS says it is, and the Constitution gives them the final say until Congress tries to make a new law OR the Constitution is changed rendering the decision moot.

Sure you are not saying just ignore it, you are wanting a law to ignore what it says and use wording of its own to say what you want it to say, even if its shares noting in common that it says originally and completely alters the way its was written and practiced, even though the constitution had never empowered the legislature or its law to work that way.

First let's agree that there IS a distinction between ignoring a law and changing a law such that it legalizes something giving the same effect as ignoring the law prior to it changing. The former would be breaking an existing law, a choice, and one that carries a penalty (unless it's breaking into the United States, then it carries rewards). I am not advocating breaking laws in the matter of immigration and granting of citizenship. I am advocating the government, taking a look around and seeing the results of a flood of illegal immigrants and lack of immigration law enforcement, and weighing the matter of citizenship. In my view, they have more than ample cause to show compelling interest in legislating a change and that change sticking to the wall constitutionally. You believe such a change mandates a Convention; I simply disagree, and I base that disagreement on other cases where the governments compelling interest stood behind the making of a law, and those interests withstood constitutional scrutiny.

The result of those cases where the government's interest was sound enough to stand up to that scrutiny had the effect of modifying a legal reading of "ALL" such that is does not mean "each and every," but means "each and every that does not overrule a compelling government interest."

I gave the example of freedom of speech. Nowhere in the Constitution or BOR does it specify a list of things you CAN'T say, but the SCOTUS has decided there are things you can't say in certain circumstances. Specifically, that means the law our legislature passed (before the question of constitutionality was ever raised) was indeed constitutional. Likewise I believe a law can be made to limit granting of citizenship 1.in certain circumstances, 2.if a compelling government interest exists, and 3.Despite the word "all." And just like the Espionage Act of 1917, it was made by the normal process we use for making a law. While it impacted freedom of speech by taking away some that was assumed to be granted by many, it survived the legal tests.

The 14th is one of the few things left in the constitution that is used verbatim and works just fine in its obvious simplicity. But can't have that, its too simple, and now because you don't like it being abused we must join the rest of the progressives and the 'living constitution' crowd so we can "interpret" ALL to mean basically anything but. That's sensible? The sensible thing would be to reword the constitution with an amendment to mean only those legally here so it cannot be challenged in court using the original wording. A law that clarifies ambiguous terms is one thing, just as I exampled with 'natural born', but there is NOTHING ambiguous about 'all persons'.

It isn't that simple. You cite the wording of "All persons born.." but the entire sentence reads "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. There are real questions here as to "subject to the jurisdiction thereof" as well as "state where they reside." The wording seems to presume a person granted such citizenship intends to reside here, in some state. In the case of an infant, their residing would be done as a result of their parents choice, and the parents are NOT citizens and are NOT subject to our jurisdiction and have NO authority to be in any state. This creates a bucketful of legal questions; it isn't simply a matter of geography as many would have us believe. It's not just a matter of what one sentence in the 14th Amendment says, it's a matter of how can we do that in conjunction with ALL our other laws and not come out with a matter of complete absurdity. I'll again point out that this is the very crux of WHY you can't yell fire in the crowded theater, to borrow a line from Justice Holmes. Because to allow it would present the absurd case that "ALL" means "each and every" in the 1st Amendment no matter the absurdity of a situation resulting in the potential death of many innocent citizens who also are entitled to life and liberty, not deprived without just cause in the 14th Amendment. You end up stuck between a rock Amendment and a hard spot Amendment.


I am not a "living constitution" supporter at all in the way modern liberals see it, yet I recognize that situations may arise that the Founders perhaps never envisioned. I honestly cannot imagine a Jefferson, a Madison, or a Franklin smiling and waving to people breaking immigration laws only to hook up with a bunch of give-aways on the honest tax payer's dime. I can't imagine one of them saying, "Well, shucks, uh... "all" means "all," nothing we can do unless a majority of states force us to." I am a supporter of an idea that has historically been used, over and over and over again; that the normal legislative process is all that is needed here. I agree with you that a Constitutional Convention could be used to solve the issue, I just don't rise to the level of that being a necessity to the exclusion of any other means. Nor do I believe a majority of states care to make it one. I've cited cases for you where laws were made, they were challenged on constitutionality, and the laws came out the other end good to go. How on earth can you read those and then tell me there is no other legal way to make any kind of law that might invite the constitutionality question other than a CC? It's already happened, multiple times, and nowhere is there a trail of people ready to revolt over some question of tampering with the Constitution/BOR. People might not be thrilled with these decisions, I certainly have a list of what I consider Bozo decisions, but at the end of the day they ARE the law.

We are a Republic, and the very nature of that form of government is that every citizen signs over the right to think to the people with the most votes on election day. They even grant the right to think to unelected people (SCOTUS, judiciary) not by vote but by proxy of those we vote for and just being a citizen. If they misthink, our remedy comes 2/4/6 years later, but meanwhile those 546 people with the only say in the matter go on operating. What matters is what THEY say, now what we think, and that applies from matters of school lunch all the way up to the Constitution, what it mean, and how it applies. That's the system we have and have always had.

So any law is constitutional until its challenged? How about the ones that were challenged found OK and then later the opinion reversed? Were they constitutional before they weren't? Actually we treat them as they never existed once rule unconstitutional except when it come to amendments.

Yes, yes, and I disagree with the last sentence. Read history. Was the Espionage Act of 1917 the law of the land until it hit the doors of the SCOTUS two years later? It's no longer the law of the land. At some point, it stopped but was until then.

In 1905 SCOTUS ruled (Lockner v. New York) that the 14th Amendment gave a person the right to freely enter into contracts (ruling NY's law limiting working hours to 60 per week unconstitutional). In 1937 (West Coast Hotel v. Parrish) the SCOTUS examined a matter of minimum wage laws and determined that the 14th Amendment did not explicitly grant a person freedom to enter contracts, that those freedoms could be limited by reasonable laws designed to protect health and safety.

Please note a couple points from the period 1905-1937. One, during that period, a worker could agree to work 100 hrs a week if they wanted because the 14th Amendment said they could. During that same period, state laws were passed that limited that complete freedom, they flew in the face of existing 14th Amendment application AND weren't made by a Convention modifying the Amendment. Finally, note that when they were tested, in 1937, they survived and gave an entirely new meaning to the 14th A. During that period, the law applied as it was until it changed in 1937. That's what happens when a decision is reversed.

But if you are all about pragmatism in obeying law, lets say they passed a law outlawing religion, are you going to wait until it makes its way through the court before practicing? Which ideal are YOU going to hold true to, law abiding or constitutional and religious tenet.

Whoa, I never said a person must obey a law because it's a law. I only said the law either is valid meaning constitutional or it isn't. When congress passes a law and the Prez signs it, it is presumed to be constitutional unless or until it is challenged, then the SCOTUS or a lower court will decide. WHAT they decide is the law.

Now the question becomes do you follow the law or choose to break the law. And a secondary question is, IF you break the law, does that make the law any less valid? I can only speak for myself since breaking a law is a personal decision, and in this case I would do the same thing the earliest Christians did and break the law. Because I would choose that way doesn't make the law any less valid, it just makes me a criminal. The question I'd be asking myself is, are my faith beliefs worth becoming a criminal for? I'd have to answer yes. I would not expect to be treated any differently that if I broke any other laws. I'd have to face the penalty for breaking it and that I'd be willing to do.

It's already happened. People issuing civil marriage licenses have been fired for abiding by their religious beliefs. Medical professionals fired and sanctions against their professional licenses filed as a result of exercising the tenets of their religious beliefs.

A final note of correction: I incorrectly cited the DOI as the source of "Whenever any form of government..." The correct citation is the preamble to the Constitution.

[Grug - American Neanderthal]

The history of this Amendment has to do with what were called "general warrants." These were a loose type of warrant that the British government authorities would order the local magistrates to issue, and they were often ordered based on rumor or innuendo that some colonist or colonists were holding out on British tax collectors.

Well there were instances of no trials at all, but writs of execution granted by a governors magistrate in which people were arrested and put in prison and their property seized.

That is the point of the 4th amendment, protecting against that and at the same time giving the limited power to the state to deprive liberty and property, but only under strict condition, but if you want use of the actual wording due process as in the 14th that works just as well, but the 4th expresses what that due process is to start with. Certainly before the 14th it was not unconstitutional to hold people in prison after initial arrest.

It's weighing the granting of citizenship as a result of a criminal act of trespass PLUS the negligent act of a government refusing to enforce its own laws versus the harm done to society as a result of granting those rights AND failing to enforce those laws. As a normal course of events, we as a nation don't generally reward criminal behavior because doing so provides an incentive to break the law.

Who is the defendant in this case? Is it the child born as citizen according to practiced law and the constitution, or the mother? Since the child cannot be held legally accountable until its an adult in most cases, much less born, and by law its a citizen at birth, what law did that child violate?, there is no way you can rescind that citizenship and remain within the constitutional expressed path of gaining citizenship upon birth. You can detain and deport the mother, she is the one breaking the law, not the child.

So it needs to be addressed. These problems give the government something to show as "cause" to why the needs of government/the nation outweigh the needs of geographically lucky infants (and their parents). You might recall just a few years ago the SCOTUS giving us Obamacare and Chief Justice Roberts dissertation on compelling interests of government being constitutionally a just reason to compel us each to purchase health care or be fined where, for 237 years, no one thought "government" had the power to compel any citizen to buy anything against their will. So, I'll ask you - is this law "constitutional" or not? The SCOTUS says it is, and the Constitution gives them the final say until Congress tries to make a new law OR the Constitution is changed rendering the decision moot.

1st off, you and I are just as geographically lucky so I don't really think that has any relevancy to how the 14th works like it is now. To answer your question No, I don't consider it constitutional. The constitution does not give the power to the courts to rewrite it either. The codified law may say it is, but laws are arbitrary and only applicable by force in such cases. No where in the constitution does it give the power to tax a person for existing, especially under the powers granted by the constitution to congress or the courts. Congress has the power to create law to carry out their numerated powers, all else they have assumed without consent.

I do agree with everything you said about why anchor babies are a bad thing, I simply disagree with your solution, I think it clearly violates the constitution, so change the constitution.

First let's agree that there IS a distinction between ignoring a law and changing a law such that it legalizes something giving the same effect as ignoring the law prior to it changing.

Sorry, but I don't think we will agree on that either. A law cannot change the constitution, in doing so it does ignore the wording and intent of the very thing its seeking to change.

The president ignores all kinds of laws, he grants defacto amnesty by prohibiting enforcing existing law. Making a law that circumvents the constitution and how its used in law up to that point is also ignoring it in the same way.

There are real questions here as to "subject to the jurisdiction thereof" as well as "state where they reside." The wording seems to presume a person granted such citizenship intends to reside here, in some state. In the case of an infant, their residing would be done as a result of their parents choice, and the parents are NOT citizens and are NOT subject to our jurisdiction and have NO authority to be in any state.

I have seen the jurisdiction clause used as if its separate things to different people. But its not the subject of peoples authority we are talking about, but the law of the US. Anywhere the US govt has jurisdiction over would have authority to enforce its law on anyone legally within it or not. Otherwise you would have no power to arrest and deport them at all if illegal aliens were not subject to the jurisdiction of our law. They are subject, and why there are illegal aliens in our prisons for breaking it. Intent also has nothing to do with it, there is no stipulation or qualifier in the 14th, its says quite clearly '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.'

I am not a "living constitution" supporter at all in the way modern liberals see it, yet I recognize that situations may arise that the Founders perhaps never envisioned. I honestly cannot imagine a Jefferson, a Madison, or a Franklin smiling and waving to people breaking immigration laws only to hook up with a bunch of give-aways on the honest tax payer's dime.

I also agree, the founders were not omniscient and would be disgusted with what this has all grown into, but they were very forward thinking in making a process besides ordinary law to change the constitution should there become an issue with its use.

Now the question becomes do you follow the law or choose to break the law. And a secondary question is, IF you break the law, does that make the law any less valid?

And yet in most cases you must break the law and suffer penalty to even have standing to challenge it. So its not valid if you are doing that. Further, if you are not obeying law, you are at the very least by default claiming its not valid, correct? Sure the govt can force you to obey, but force does not abrogate a right.

A final note of correction: I incorrectly cited the DOI as the source of "Whenever any form of government..." The correct citation is the preamble to the Constitution.

Uh, no, you are wrong that you were wrong, that is in the DOI, The preamble says

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

That 'promote general welfare' clause has been used as a granted power for everything beyond what congress and the courts actually were granted.

[HiTemp]

Aug 31, 2015 20:06:20 GMT -7 Grug - American Neanderthal said:

Who is the defendant in this case? Is it the child born as citizen according to practiced law and the constitution, or the mother?

Defendants are parties to criminal or civil trials. This isn't a court case we're talking about, it's a situation I think we both identify as problematic and the resultant questions of how best to resolve it. I think you've viewing this through the lens of "punishing" someone (the child) when something changes the law (by either your method or mine) rather than focusing on the desired effect which is to resolve the problem. To view a law change as "punishment" is fine, it certainly does always punish the loser of any courtroom battle, but the fact it does punish one side or the other is really not a reason to abstain from it. Should we have never addressed civil rights in Alabama, given that it might potentially punish Gov. Wallace? Is it a good reason from shying away from the battle and the inevitable loss to one side or the other, maybe even both.

Since the child cannot be held legally accountable until its an adult in most cases, much less born, and by law its a citizen at birth, what law did that child violate?, there is no way you can rescind that citizenship and remain within the constitutional expressed path of gaining citizenship upon birth. You can detain and deport the mother, she is the one breaking the law, not the child.

You've read many of my writings here over the years stressing the value of truth and reason, and how reason has its roots in truth. You've also heard me say repeatedly that one of the many tests of truth is that it cannot ever result in absurdity. That fundamental basis goes back as far as Socrates. I accept it and have never found one single exception to it.

So consider applying that same test to laws. I do, and it helps me decide if a given law is good or not. It doesn't settle the matter of if it is the law, that's decided by legislative process and possible subsequent court rulings. So let's apply that to a law that doesn't deal with the immigration issue but is a very close facsimile; the criminal act of driving the getaway car for an armed robbery. Here you could use similar logic to what you are using in the case of the anchor child; you could say this fellow wasn't doing anything but driving a car, and as long as he's obeying all the traffic laws, you can't lay the penalty for committing a stick up (and any crimes resulting from that act) on him because he didn't stick a gun in anyone's face. All he did was drive and if he has a valid license, he's only exercising the privilege to drive that the state granted him.

To further ferret out an answer, we can also compare two getaway drivers; one went along willingly, and the other was carjacked moments after the robbery.

If we do not penalize the getaway driver, we end up in absurdity because we've given a pass to a person who, while exercising a valid "right" (actually driving privilege) did so in a way that facilitated the commission of a crime, and it might be a crime he didn't even know was going to go down, but did know when he saw them high-tailing it to the car with gun in one hand and a sack of loot in the other. So laws were made and even modified to be more severe to deal with the person who didn't commit the crime, but only helped it. Today, in many states, if a person is killed in the robbery, even the driver will answer for a murder he didn't actually commit, and that is true even if he only found out some criminal act was afoot after the fact.

WHY are these laws sensible? Because if we apply the law in a way that honors his "rights," it ignores the fact that the driver helped in some way. But if we applied them to a carjacked, forced participant, we'd be punishing that fellow for something he really had no part in other than being forced to do something against his will. So a distinction is made. Now we get to punishing the willing participant for a murder if someone is killed during the robbery. Even if it can be demonstrated he drove only under the condition no one would be harmed, he's still going away for that murder. It seems on its face unreasonable, a "punishment of the innocent" if you will, however the goal here is to ultimately limit such participation and also limit the robberies because government has a just reason, a good cause to show, that doing so is more beneficial to society than depriving one man of more rights than he perhaps truly deserves.
Stated differently, you could say that the lawmakers, be they state or federal, weighed the issue of over-punishment of the one versus the preservation of rights to those engaged in zero criminal activity and found the latter to be the most compelling. For the good of the many, one minor participant is going to get his rights stripped very harshly.

Does this end up in absurdity? No, because it isn't just a matter of "punishment," it's an acknowledgement that there is a true, logical link between minor participation and major results. Those elements are knowledge of what happened, and failure to make correct choices once so informed. But even there there is a deeper process that has to show a willingness to achieve a desired end. That's the part missing from the carjacked driver. An arsonist buys a couple gallons of gas and tells the clerk he's going to use it to set a building on fire - the clerk, even with forehand knowledge, isn't prosecuted because he had no common desired end with the arsonist.

Now back to the immigration situation. We grant a right based on geography of the act of being born. In itself, there is nothing wrong with it, however we find several other factors are involved. 1)The people AT the geography in question had no right to be there and had to break the law to do so. 2)While we grant the right to the child, we cannot ignore the benefits to the parents by the mere granting of rights to the child, and we must also consider how those benefits work to benefit the criminal in the light of other laws being unenforced. 3)Granting the right to the child may not itself be problematic but the automatic benefits to the criminal that results ARE, and they are so problematic that they make MAJOR impacts on the ability of existing programs, never designed to benefit them, to service they citizens they were intended for.

If we look for the logic absurdities here, they abound. First, if a person follows the legal process to enter our country, then subsequently have a child, that child and that set of parents get the exact same treatment as parents/child who come here illegally. That means one of two things; either all immigration law must, by necessity, be flawed and serves no valid purpose; or it means we are treating those who follow the law exactly the same as those who ignore it. Both are logical fallacies because they end up in absurd results. Using the previous analogy, it would be ignoring the criminal aspects of the getaway driver based only on the basis of he's duly licensed to drive and did so safely. That would be absurd, making a mockery of justice. Likewise, pretending an anchor baby birth is in a vacuum and non-distinguishable from any other birth is absurd and an equal mockery of justice. I could cite others, but you get the point.

Whenever injustice is discovered in our system of government, the usual and ordinary solution is to change the law in such a way that addresses that injustice. If it impacts things like rights, then the usual process isn't to call a Convention , but is to tailor that law or write it in such a way that it clearly demonstrates that just cause, that compelling government interest in limiting both the scope of application AND the resultant change of the right itself, be it limiting or totally depriving said right(s). The hope is that the law is constitutional, as it is presumed to be unless or until challenged, and the intent is for that law to survive any challenge it might encounter.

I do agree with everything you said about why anchor babies are a bad thing, I simply disagree with your solution, I think it clearly violates the constitution, so change the constitution.

I get that, but I'm not sure why you cling to such a purist view when I've given you clear examples of how these same kinds of constitutional issues were solved using legislative process, survived challenge, and never had anyone upset about not having a Convention. When NY State passed those laws placing limits on what can be compelled of an employee, the current, active interpretation of the 14th Amendment was that it granted an absolute right to an employee to engage in any employment contract if they so desired. Here, NY State said screw your desire, to hell with the 14thA, we have a valid reason to strip you of some aspects of this right (i.e. - it isn't absolute) in your own best interest. When challenged, the SCOTUS agreed with NY State, effectively RE-interpreting the meaning of the 14thA in a way that was never interpreted before. In their terms, absolute didn't mean absolute; in my words, "ALL" doesn't necessarily have to mean "each and every."

You may say they should have used that process, and I wouldn't disagree that would have done the job, but the fact is that they did not use it. One reason, and I think it is the compelling reason, is the degree of difficulty such a process entails. That, coupled with the number of times constitutionality ends up on the scales of justice, we'd need another whole Congress and extended periods for state legislatures just to handle the load. We'd be in a near-constant state of CC, and that more than anything would take the wood out of our Constitution and surely inject it with rubber. So while I agree it's a possible way, I just don't see that being practical. More to the point, neither do our lawmakers and our courts.

There is another matter that is just a personal concern, not connected to the immigration issue, and that is the track record of our current lawmakers. Straight out, they're slimy bastages who don't mind deceiving people if it suits their own agendas. I don't know if I would trust them to call a CC to address one thing we want, then slip in 3 or 4 "other changes" we maybe don't want. When I look across the country at state legislatures, I really don't want my future determined by the state legislatures of CA, OR, WA, HI, VT, NY, NJ, and the like. I can't really count on 2/3 of them to see any matter through the way I think it should go. Again, that's just my own personal thing, not offering that as a valid reason to avoid a CC.

The president ignores all kinds of laws, he grants defacto amnesty by prohibiting enforcing existing law. Making a law that circumvents the constitution and how its used in law up to that point is also ignoring it in the same way.

I again fall back on the facts that making laws isn't circumventing the Constitution. Laws are presumed to be unless otherwise shown to be, and THEN it requires a CC. Until that time, making a policy law that acts to interpret the Constitution in a way different than how it was yesterday is perfectly legal and isn't unconstitutional. I do not have to change the words "Every person" to something different via CC when I can make a law interpreting "every person" to mean "every legal person" via a law. That's exactly what NY State did in my example above. Their law said we don't interpret absolute to mean completely absolute and they were RIGHT! The method is historical fact. I can cite a hundred more if needed to show this is the normal course of business, but I think you know how things work pretty well.

I have seen the jurisdiction clause used as if its separate things to different people. But its not the subject of peoples authority we are talking about, but the law of the US. Anywhere the US govt has jurisdiction over would have authority to enforce its law on anyone legally within it or not. Otherwise you would have no power to arrest and deport them at all if illegal aliens were not subject to the jurisdiction of our law. They are subject, and why there are illegal aliens in our prisons for breaking it. Intent also has nothing to do with it, there is no stipulation or qualifier in the 14th, its says quite clearly '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.'

When the law clearly states they are not allowed here without following a specific process lest they merit penalty, they come here anyway and the hand of law is NOT applied to them nor any penalty assessed, then rewards are issued by way of benefits, I have to question the validity of the law in the first place. If WY passed a law that didn't allow any motor vehicle to travel over 40 mph but they never enforced it while everyone's zipping about at 70mph, isn't it reasonable to ask whether it's truly a law or not, given that laws are meant to be applied? Is it reasonable to ask WTH when people caught going 75 are given an automatic reduction in their auto insurance while those obeying the 40 limit have to pay more on their policies to allow the discounts for speeders?

Would it be wrong to ask that either the law be enforced or stricken from the books? Would it be wrong to take the totality of absurdity resulting from the practical application (or not) of these laws and write another law to correct the discrepancies resultant from the combined picture? Would you have to change the state constitution if it was there that contained the definition of "driver" in order to make a distinction between a good driver and a bad driver?

I can look up the definition of the word "nail" in Websters. I don't have to have Websters change that definition in order to apply another defined word, "bent," in order to more capably describe a nail when it's useless to me. That's pretty close to what I'm looking at in immigration; to be able to make a distinction between legal activity and the application of a right, and ILlegal activity and the application of a right. That's just what happened with the 1stA and voicing opposition to the draft in 1919. That's just what happened to labor laws in 1937. That's just what happened to the government cannot compel a citizen to buy a product in 2013. That's just what happened to marriage is between a man and a women in 2015. I see no reason it can't happen to any person in 2017. Groundwork is already laid, skids already greased.

I also agree, the founders were not omniscient and would be disgusted with what this has all grown into, but they were very forward thinking in making a process besides ordinary law to change the constitution should there become an issue with its use.

Yes, you're right. But changing interpretation of what the document, as written, means and how it applies is also granted in the process by which laws are to be made. Once again, back to "all men are created equal." What if they really meant "men," and not women? What if they only meant "white men?" What if they meant "men and women unless they were red or yellow?" Each of those very scenarios has played out in our nation's history and NONE of them were solved by simply pointing to a word and saying "it means what it means," nor were they solved by Convention process. Every one of them was solved by making and passing laws whose force of effect served to refine the meaning of "all men." I'm simply advocating for using the same process to here refine the meaning of "all persons" rather than change the wording.

And yet in most cases you must break the law and suffer penalty to even have standing to challenge it. So its not valid if you are doing that. Further, if you are not obeying law, you are at the very least by default claiming its not valid, correct? Sure the govt can force you to obey, but force does not abrogate a right.

In no case would I be claiming the law is invalid. If I challenged it, my claim would be that the law is unjust. If I did not challenge it I would still recognize it as valid while still feeling it's unjust, and that I am willing to pay whatever penalty the valid law demands for violating it. Every law comes with a penalty attached for failing to abide by it. Everyone is free to violate any law so long as they are willing to also pay the price demanded. In my case, my faith would be the compelling interest so I'd be willing to accept the penalty whether I felt it just or not.

That 'promote general welfare' clause has been used as a granted power for everything beyond what congress and the courts actually were granted.

Is it valid? Is it just? Does it result in absurdity? My best guess is that we could both think of situational examples where the answer could be yes or no depending on the total picture. In answering each, is it the wording you think needs changing or is it how those words are interpreted and applied in the various circumstances that needs fixing?

[HiTemp]

Just an aside here. I was thinking today about how much I value this particular discussion and the discussions we've had here over the years. I was also thinking of how we are coming up next month on the ninth anniversary of Sonny Elmore's passing, and how much he enjoyed these discussions too. He told me that often, and by often I mean at least every couple of weeks. After he stopped posting he continued to stay glued to these pages daily, following the goings-on with the fervor of a soap opera fanatic. Before he fell ill, he was working on a giant scale B-17 kit and often took to the pages of HFN when taking a break from work in his shop.

He was definitely a gentleman, a really fine one.

Is it just me, or does it seem like he hasn't been gone that long?

[Grug - American Neanderthal]

Now back to the immigration situation. We grant a right based on geography of the act of being born. In itself, there is nothing wrong with it, however we find several other factors are involved. 1)The people AT the geography in question had no right to be there and had to break the law to do so. 2)While we grant the right to the child, we cannot ignore the benefits to the parents by the mere granting of rights to the child, and we must also consider how those benefits work to benefit the criminal in the light of other laws being unenforced. 3)Granting the right to the child may not itself be problematic but the automatic benefits to the criminal that results ARE, and they are so problematic that they make MAJOR impacts on the ability of existing programs, never designed to benefit them, to service they citizens they were intended for.

Again, in this case you are punishing the innocent for being related to the guilty.
That we do not enforce laws and the parents do abuse and exploit the system has no relevance on the constitutional right of citizenship bestowed on the child, it just doesn't, there is no logical line of reasoning or justification for it.

As to the issues we have bastardized the law as clearly expressed by the constitution before also has no bearing on why we should do it now IF you hold the constitution as supreme in law.

I again fall back on the facts that making laws isn't circumventing the Constitution.

They most certainly are if they countermand the directive the constitution has set forth, in this case the granting of citizenship to all persons born here. There are many laws that were created that were unconstitutional, by the very nature they did circumvent it, or tried, and that is the case in such a law in this issue.

making a policy law that acts to interpret the Constitution in a way different than how it was yesterday is perfectly legal and isn't unconstitutional

So long as it maintains compliance with the constitutional restriction on power to do so. Congress had a power to tax, but they had to pass an amendment to impose an income tax. That was because they were limited to taxing for the purpose of powers they had expressed in the constitution to start with. If it were today, and with your and the progressive application of constitutional compliance they would not, they could simply legislate it just as they have with Obamacare, they would also not have to comply with any constitutional limit, which they have not. And you see no problem with this? I am a 'purist' because I see the practical and obvious violation through nuanced reasoning. The constitution basically does not exist in law now, if any law can be written to completely change the constitutions actual wording and meaning in practice, it is no longer supreme in law. Sorry, but you cannot make a law modifying the text of the constitution mandate in law without it being unconstitutional, that is just a fact. I don't care if all 3 branches of govt says so, by the very definition of 'constitutional' it is not.

Yes, you're right. But changing interpretation of what the document, as written, means and how it applies is also granted in the process by which laws are to be made.

This IS the concept of living constitution. law cannot change the wording or meaning of the words in it, only clarify what the constitution says if there is a need, and set forth the method of application and penalty if applicable. They cannot interpret it to mean other than what it says expressly. Why do you think they used such phrases and strong unequivocal statements such as 'shall make no law', 'Shall not be infringed', "All persons", "No state shall", and "shall not be construed to deny or disparage..." and yet when they did intend for the law to have say or interpret condition in the mandate they used phrases like "but in a manner to be prescribed by law" and "but upon probable cause".

In no case would I be claiming the law is invalid. If I challenged it, my claim would be that the law is unjust.

If you ever challenged a law as unconstitutional you would have to claim its invalid as being so.

Is it valid? Is it just? Does it result in absurdity? My best guess is that we could both think of situational examples where the answer could be yes or no depending on the total picture. In answering each, is it the wording you think needs changing or is it how those words are interpreted and applied in the various circumstances that needs fixing?

Which are all moot, its not a power. Its in the preamble, "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..." It reasoning of why we are giving govt specified powers after that, not giving them unlimited power to carry that out.

Yes I know I am being a purist again, but I see it as an absolute truth. What ever this govt is, it is not supreme in right, maybe only might. When we have all these laws to clarify and regulate sometimes the law itself, I have more and more often come to ask Why? if the answer is because thats the way it is, its not good enough. its the reason this country is failing. The reason our leaders will not do what is right because its not the system anymore. This is not what what we designed to be at some point people need to just stop complying.


Anyway, yeah, its hard to believe Sonny has been gone that long, and I also miss him and a couple others that have passed that were truly golden souls. I just the other day ran across a pic I had of him with his Wedell racer.

[HiTemp]

Sept 2, 2015 8:59:07 GMT -7 Grug - American Neanderthal said:

Again, in this case you are punishing the innocent for being related to the guilty.

No, I'm not. Punishing the child would be creating a law that puts him in custody, gives him a trial, finds him guilty, then the state or federal government assesses a penalty. That's punishment.

The law was broken by the parents. The kid was not born yet, they broke the law with express intent to go around the normal process of law as regards immigrating legally, and then, after the crime, the kid was born. Right now, he's being given a freebie grant of citizenship he would otherwise legally have to obtain if his parents (mother, at least) were not criminals. If you see a kid walking down the street and hand them a popsicle, that's a freebie for them. If you are in a hurry and don't give them one, are you punishing the kid, or not just giving him something for free?

Here's a for-instance for you: Suppose I break into the computer at the local college and give my daughter better grades than she actually earned. I get caught doing so. When my daughter's grades are changed back to what she actually earned, would you take the position that she is being "punished," and would you take the stance that since she did no wrong, she deserves none of that "punishment" because the illegal act was committed by me, her parent? Just wondering how'd you would handle that as opposed to the illegal immigant - anchor baby citizenship thing.

That we do not enforce laws and the parents do abuse and exploit the system has no relevance on the constitutional right of citizenship bestowed on the child, it just doesn't, there is no logical line of reasoning or justification for it. As to the issues we have bastardized the law as clearly expressed by the constitution before also has no bearing on why we should do it now IF you hold the constitution as supreme in law.

I do hold that the Constitution is supreme in law. I also hold that the branch of government the Constitution grants the power to make laws to CAN make them. As I said, every single law Congress makes is presumed to be constitutional, and they are treated as such unless or until they are later found by a court to NOT be so. And as I've stated earlier, the constitution doesn't mention anything more about illegal immigrants than it does bazookas. If we can't use an emerging new situation (the invention of the bazooka or the new trend of illegally entering to scam the system via the anchor baby giveaway) to further define something in the constitution, than we cannot ban bazookas if we cannot ban citizenship to anchor babies. Same could be said for tanks, armed jets, etc.

Yet we have defined those things and used our system of laws to classify them as a special category of "arms," and this kind we don't have the right to "bear." Did somebody go around the constitution when they made those laws, essentially saying "arms" does not mean "each and every possible arm?" Further, when a law goes before the Supreme court for a constitutional test, they frequently send it back to a lower court with instructions on "how to correctly interpret" or apply a law. I've never read one decision saying, sorry, you should have held a CC if you wanted to do this. In fact, the SCOTUS has gone so far as to, over the years, construct an actual "test" to determine if something is constitutional or not. Know what's NOT in that list? Reading words like "ALL" to mean "each and every without exception."


If there is no such power to tell us what the document means as it applies to a situation never imagined in 1776-1791, then, the Constitution is a suicide pact. No matter what, no matter the compelling government interest to protect society, by gum we can't do sheet unless we have a Const. Conv. and even then, if the measure doesn't pass, we just let this rain of criminal activity break down our systems and our society until they break and we fall into anarchy. Yeah, that's a great idea. I'm glad the Founders had such wisdom to paint us into such a corner.

Doesn't matter than they have been making laws that some people thought were unconstitutional and those laws later passed muster, and have been doing so since within 10 years of the signing of the BOR. Nah, don't let those facts get in the way. Don't look at the history of lawmaking and court ruling, that wouldn't make any sense. No, just lock into one sentence in one Amendment and ignore the way the system works in practice in conjunction with other existing law while hoping to accomplish something. That'll work.

I don't deny that some laws are far from what our Founders would want, but I do deny that all of those came about by some kind of constitutional skulduggery. Much of what is screwed up today came from modification of laws that were already made, always worked, until some group came along that wanted it out of the way. We most often see that in the case of judicial activism. In Doe v Bolton the SCOTUS admitted life begins but redefined the word life in the Constitution. Up until 1973 it was assumed to start at conception but in that decision they stated it could not be defined with certainty prior to birth, therefore Roe v. Wade is valid and abortion is now a constitutionally granted right. Yet it's nowhere in the document. How'd that happen? Constitutional convention, ya suppose? That is not the same as legislating a law. Congress is the body charged with making laws, it's supposed to be up to them to MAKE laws, not the courts, yet the courts have done so and the legislature is fine with it, given that they have the only power to do something about it.

They most certainly are if they countermand the directive the constitution has set forth, in this case the granting of citizenship to all persons born here.

All persons... you mean like when it says arms in the 2nd Amendment, that means all arms since they didn't specify a single restriction? Or speech in the 1st Amendment means ALL speech since they didn't specifically ban any? It's a basic legal principle that some activity is legal if there is no law or statute prohibiting it. So how did we get to sending guys to jail when they passed out anti-draft flyers again? Did someone Congress usurp the constitution when they made that law in 1917 or not? And if so, were the Justices of the SC all asleep when 2 years later they said the law was okay?

This comes down to your reading of what things mandate a CC versus anyone else's opinion. You are locked onto one specific phrase and I've given you multiple examples where how something in the BOR is interpreted was changed by legislative action AND passed judicial review. It's happened hundreds of times in our history. It's not CHANGING the BOR, it's taking a new situation that was never an issue before and deciding HOW the existing BOR - as written - applies to that new situation. Just as was the case with abortion, which the Founders never envisioned having to deal with, yet it came about.

There are many laws that were created that were unconstitutional, by the very nature they did circumvent it, or tried, and that is the case in such a law in this issue.

Well can we see a couple examples of them?

So long as it maintains compliance with the constitutional restriction on power to do so.

Okay, fine. Who is the umpire in cases of dispute, where there is a question of whether or not Congress stayed within those boundaries? Then, if those with the power to say they DID stay inside them yet others feel they didn't, which party is right?

Congress had a power to tax, but they had to pass an amendment to impose an income tax.

Well WHY did they do that, can't they read??? According to your position, Article I. Sec 8 granted them that power, so an Amendment ought to be redundant, right?
Here's how it reads:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Now compare that to the 16th Amendment and it should be clear WHY that Amendment was necessary.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

See, they weren't just after an income tax, they were after a way to make those taxes non-uniform in the way they were collected from people, AND to provide a disconnect from the mandated link to census of states. This wasn't a case of interpretation of a word, it was a case of this particular way of taxation is BANNED, and after the 16thA, now it was not banned. I fully agree THAT case required a CC and there was no way to pass a law that said X is okay when the constitution clearly banned that particular act. This is not the same thing as making an exception to the word ALL when there is a compelling government interest to exclude certain cases within the subset of all. Think bazookas, yelling fire in the crowded theater when there is no fire.

That was because they were limited to taxing for the purpose of powers they had expressed in the constitution to start with.

No, that's not quite correct. The constitution did not say they were couldn't have an income tax, and as you can see in the Art I Sec 8 quote above, the money collected was supposed "to pay the Debts and provide for the common Defence and general Welfare of the United States..." That's a pretty vague thing, that general welfare. Anything could be deemed into that category.

The only ban congress had regarding taxes was the prohibition in Art. I Sec. 9 that banned them from taxing or placing a duty on the exports of any state. That part of the constitution was banned from even being changed by amendment until 1808.

If it were today, and with your and the progressive application of constitutional compliance they would not, they could simply legislate it just as they have with Obamacare, they would also not have to comply with any constitutional limit, which they have not.

No, I agreed what Congress wanted to do required an Amendment. They wanted to collect an income tax, but they did not want it proportioned the way the Constitution required i.e. - linked to census. Absolutely they couldn't make a law to legalize what the Constitution specifically banned.

And you see no problem with this? I am a 'purist' because I see the practical and obvious violation through nuanced reasoning. The constitution basically does not exist in law now, if any law can be written to completely change the constitutions actual wording and meaning in practice, it is no longer supreme in law. Sorry, but you cannot make a law modifying the text of the constitution mandate in law without it being unconstitutional, that is just a fact. I don't care if all 3 branches of govt says so, by the very definition of 'constitutional' it is not.

First, I do see a problem with trying to make a law that says you can wear a shirt that's red when the constitution says you must wear a blue one. Red ain't blue, so that kind of change will absolutely require a CC. We agree there. Where we part company is where you are standing on a single definition - your definition - and insisting that over 200 years of legislative process and judicial reviews are ALL WRONG. This despite me providing many examples where when the constitution says you can wear a "light colored" shirt, that term is up for interpretation and in fact IS interpreted, sometimes to the distaste of others, sometimes to my own distaste. But that's how the system works.

You say "all persons" means just that; all persons regardless, no matter the circumstance. But you fail to acknowledge that others can read that to mean "all persons with the presumption they are acting legally and following the law." Otherwise they shouldn't be considered because to do so results in the absurd situation that those who follow the law are denied rights (because they may have to wait) while those who break the law get the rights. You know, nothing in the Constitution, much as it talks about electing our leaders, says those elections must be legal ones. Do you submit that it would be okay to have an illegal election and stand on the constitution saying "election" period, and if we insist on a legal one we need a CC to specify that? I think we have to have some room to allow that the Founders presumed common sense.

Maybe you could cite for me the Amendment that removes "the right to bear arms SHALL NOT BE INFRINGED" from someone involved in a domestic dispute that was nothing more than a shouting match with their spouse. Oh, the 14thA, right? There was due process, okay to strip away a constitutional right? Okay, where's the due process for the legal immigrant, and where's that due process for the illegal? You aren't applying the same treatment to either, and THAT's against the constitution too. See the obvious absurdity that results? That's why a better interpretation of that term is needed, and all it takes to do that is to legislate a law that has that effect. It's not changing ALL to a nebulous SOME; it's saying even ALL has limits. Just like speech and arms do.

This IS the concept of living constitution. law cannot change the wording or meaning of the words in it, only clarify what the constitution says if there is a need, and set forth the method of application and penalty if applicable.

No. The concept of the living constitution is to say that the constitution is only time-relative. That is, what ideas are formed and held today had no meaning to the Founders, and likewise the ideas the Founders held have no meaning today. They say, for instance, that we no longer need "militias" because we have a standing army, therefore the 2ndA isn't time-relevant anymore and should be done away with. That's what defines the living constitution crowd. You know, our Founders felt that this form of government would ONLY work in a society that held strong to religious beliefs. That when someone swore an oath so help me God, they were pledging everything, not just some rote words. Madison actually said that. Jefferson revealed the same thought in his reply to the Danbury Baptists. His reply letter reflects a belief that there would never come a time when people in our government would be scoundrels unworthy of trust and men whose word meant absolutely zero.

Hmmm. What kind of people we have now, and how well is our government working? Food for thought, or another thread.

They cannot interpret it to mean other than what it says expressly. Why do you think they used such phrases and strong unequivocal statements such as 'shall make no law', 'Shall not be infringed', "All persons", "No state shall", and "shall not be construed to deny or disparage..." and yet when they did intend for the law to have say or interpret condition in the mandate they used phrases like "but in a manner to be prescribed by law" and "but upon probable cause".

But you told me earlier that the 14th Amendment allows rights to be stripped away so long as just cause is shown, thus no voting or guns for criminals, etc. So how can "shall make no law" mean NO law when the other Amendment says it's perfectly fine to do that if I can show just cause? That's all I'm asking in a law; to write a law that in itself shows just cause why a single group of people breaking the law to go around an established legal process ought not be included in a broad class of people known as "all persons." That's exactly what becoming a felon does to ALL citizens over 18 have the right to vote. It's a law that shows just cause why you need not have the right given inherently to every other citizen. In short, the felon earned it. So did the illegal immigrant.

If I challenged it, my claim would be that the law is unjust. If you ever challenged a law as unconstitutional you would have to claim its invalid as being so.

Maybe we got different definitions. I define invalid as something that would have no force in law. Think of "No-Gun" stickers on the door of a business. In Florida, they have no force in law. If you are legally carrying, there is nothing they can do but ask you to leave if they discover you are wearing a firearm. They can only claim trespass if you refuse to leave when so asked. In other states like NC, those signs have the force of law and if you're caught carrying in there it is automatic trespass. Citing me for trespass because of a no-gun sign would be an example of what I'd call invalid law in FL, but would be valid in NC.

If I challenged a law as being unconstitutional, what I'd be saying is the law has full force of effect right now, but I believe it violates my constitutional rights in some way, and what I'm looking for is a court to assess the case and agree with me, overturn my conviction, thus declaring the law invalid or it's particular application invalid at that point. Hope that clear it up.

It reasoning of why we are giving govt specified powers after that, not giving them unlimited power to carry that out.

I agree with that. I don't think the government ought to have unlimited power but I do believe they should have the power to examine situations that affect our mutual good and our general welfare and make changes to laws if that's what called for. What I don't think they should be restrained by is the power of ONE legislative house or the other in 13 states to hold in check EVERY governmental power should we go in the full-time business of CC every time we want to pass a law and some people - not our elected officials - feel it rises to the level of one. As I said earlier, I don't think changing red to blue is the kind of change a simple law ought to make, but I do believe how a single word like "all" can get a fair hearing in the legislature and the courts should disputes emerge. And I have to make that decision in light of the information available to me. I know that some schmuck state rep in NYC concerned more about his political behind with the Hispanic population of Harlem is not going to give fair weight to the question of illegal immigration in TX or AZ. In fact, I can't name a single thing I think would pass as an Amendment today unless it was automatic raises for state and federal legislatures. Now I'm not saying I wouldn't favor a CC if I thought it was called for because of perceptions it would fail, but that is a factor. I simply can't look at the history of laws and court cases and find any evidence making laws in this situation would be any different than how many other situations over a couple hundred years have been handled.

Yes I know I am being a purist again, but I see it as an absolute truth. What ever this govt is, it is not supreme in right, maybe only might. When we have all these laws to clarify and regulate sometimes the law itself, I have more and more often come to ask Why? if the answer is because thats the way it is, its not good enough. its the reason this country is failing. The reason our leaders will not do what is right because its not the system anymore. This is not what what we designed to be at some point people need to just stop complying.

Well this is really another whole topic, the issue of why our government today is what it is. I don't disagree with you that they are a dysfunctional hot mess as a whole. I certainly can't stand what they do and how they do it, and my history here ought to count something toward that. What I don't think is that running a bunch of issues through the tedious and timely process of CC is going to have any better result. If anything, I think it would be worse for reasons I've stated in earlier posts. The issue with me is not their abuse of power, because I learned long ago that power corrupts and no one is immune to it. It isn't IMHO their bold seizures of power from the Constitution that's the problem; the problem is a nation full of dunderheads that let them get away with it. But we don't because as a nation we've come to believe all this relativism bull that has caused morality to sink. In the 1950s and early 1960s, a woman having a child out of wedlock might as well have been carrying secrets of how to construct a nuclear weapon as a baby as far as who could know about it. There wasn't any big problem with huge numbers of kids had out of wedlock like there is today, because anyone doing so was treated as a moral pariah. That morality also held that adulterous relationships were not moral nor were they something to be held up in public, even for entertainment. But let that religious fabric tear, let that morality bleed out on the ground, and look what you get. Isn't it interesting that the problems of massive teen pregnancy showed up within two years of prayer being tossed out of public schools.

Say what you will about it's truth value, but there is no denying its impact on the public sense of morality. That's what I think the problem is. And as morality sinks and we have an ever-growing string of immoral activity held up like a trophy - think Clinton, Weiner, et al - people just become immune to its stink and basically take it as a given with no possibility of any other way. Kids today have never lived in a society where a public figure's moral misjudgement cost them a career AND public scorn forever. The best they can find is someone having a "wardrobe malfunction" on a major network that had 2 weeks of embarrassment for showing only a fraction of what they can see every day on cable. Today, the big sense of morality centers around race and gender, which is why anyone crossing those lines is ostracized. Imagine a day when any congressman bold enough to say "I didn't read that bill we just voted on" opened his morning paper to find a picture of 2000 people lined up to sign the petition for his recall election.


Yeah, I remember seeing that Wedell racer of his. I sure miss his wonderful stories. Nine years <finger snap>

[Grug - American Neanderthal]

No, I'm not. Punishing the child would be creating a law that puts him in custody

Denying citizenship as stipulated through the constitution I would argue is punishment when the reason for doing it is the action of the parent.

The law was broken by the parents. The kid was not born yet, they broke the law with express intent to go around the normal process of law as regards immigrating legally, and then, after the crime, the kid was born. Right now, he's being given a freebie grant of citizenship he would otherwise legally have to obtain if his parents (mother, at least) were not criminals.

WHat? if the kids mother was not a criminal if he was born here, he would still be a citizen, if she was in prison and the kid born here he would still be a citizen That how the constitution said it works. CHANGE THE CONSTITUTION.

I do hold that the Constitution is supreme in law. I also hold that the branch of government the Constitution grants the power to make laws to CAN make them. As I said, every single law Congress makes is presumed to be constitutional, and they are treated as such unless or until they are later found by a court to NOT be so. And as I've stated earlier, the constitution doesn't mention anything more about illegal immigrants than it does bazookas. If we can't use an emerging new situation (the invention of the bazooka or the new trend of illegally entering to scam the system via the anchor baby giveaway) to further define something in the constitution, than we cannot ban bazookas if we cannot ban citizenship to anchor babies. Same could be said for tanks, armed jets, etc.

Yes the constitution does grant the power to make law, it also says the constitution is supreme in law, making it cannot be changed by making legislation, only by amending it. By making 'all persons' mean something else in practice by a law is unconstitutional, I don't care if its been challenged or not, or manipulated with legaleze, it just is.

And probably bad analogy with bazookas, I feel the 2nd amendment protects the right of people owning military weapons since at its base it is about securing the country from invasion and the final check against a tyranny, short of things like WMDs that cannot be used at all without indiscriminate harm to everyone. Arms are arms and even back when they wrote that a many people had state of the art weapons, including cannon, some were actually better than what the military used. So no, I don't think the founders never imagined arms that only govt can have in that way.

Did somebody go around the constitution when they made those laws, essentially saying "arms" does not mean "each and every possible arm?"

Yes, that is exactly what they did when they passed the 1934 GCA What is the difference a machine gun to any other besides rate of fire? Or a barrel length on a SBR? You think that was in compliance with the wording or intent of 2nd? I don't. Again, I highly doubt you would claiming how great the power of law making is when they prohibit you from practicing religion but on limited specified days, you would be claiming it violated a protected right by the actual wording of the constitution.

If there is no such power to tell us what the document means as it applies to a situation never imagined in 1776-1791, then, the Constitution is a suicide pact. No matter what, no matter the compelling government interest to protect society, by gum we can't do sheet unless we have a Const. Conv. and even then, if the measure doesn't pass, we just let this rain of criminal activity break down our systems and our society until they break and we fall into anarchy. Yeah, that's a great idea. I'm glad the Founders had such wisdom to paint us into such a corner.

I'm sorry, but needing a law to tell me that 'all persons' actually means 'all persons who we deem qualified for citizenship" is just asinine. Congress can define what a natural born, naturalized citizen and alien is through law but not change the foundation of law in determining the meaning of specific wording means other than what it does. You don't need a constitutional convention, you just need an amendment, which is exactly how the founders kept from being boxed in and has been done numerous times. If you think this is such a threat, why not just suspend the constitution since we are not going to follow it anyway, and impose martial law, heck we don't even need the constitution or congress who won't even pass a law or force enforcement anyway. Just go straight to a popular vote and make it up as we go. We can probably just do an instant referendum with an app on everyones smart phone. Waiting for congress to do anything is just as much of a suicide pact right? Maybe we just need a strong leader like Obama who 'gets things done' if congress won't act. From my perspective the reasoning is exactly the same, Obama can justify his actions too.

All persons... you mean like when it says arms in the 2nd Amendment, that means all arms since they didn't specify a single restriction? Or speech in the 1st Amendment means ALL speech since they didn't specifically ban any? It's a basic legal principle that some activity is legal if there is no law or statute prohibiting it. So how did we get to sending guys to jail when they passed out anti-draft flyers again? Did someone Congress usurp the constitution when they made that law in 1917 or not? And if so, were the Justices of the SC all asleep when 2 years later they said the law was okay?

Remember we were in a state of war in 1917, which changes the way the constitution works suspends some rights and extends the powers that the govt has.

Well can we see a couple examples of them?(laws that were struck down circumventing the constituion)

Heller off the top of my head. DOMA also was struck down just recently because it tried to circumvent equal application under law.
or take your pick among these www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf

See, they weren't just after an income tax, they were after a way to make those taxes non-uniform in the way they were collected from people, AND to provide a disconnect from the mandated link to census of states. This wasn't a case of interpretation of a word, it was a case of this particular way of taxation is BANNED, and after the 16thA, now it was not banned. I fully agree THAT case required a CC and there was no way to pass a law that said X is okay when the constitution clearly banned that particular act. This is not the same thing as making an exception to the word ALL when there is a compelling government interest to exclude certain cases within the subset of all. Think bazookas, yelling fire in the crowded theater when there is no fire.

Yet according to you, they would not have had to anyway right? They could just have made a law that said 'uniform' means only in everyone subject to being taxed, regardless of level of taxation, and be perfectly compliant because congress can make law according to the constitution and state the way anything is applied in law. You actually show a great case of why this should be an amendment, changing the intent of the constitutional clause does take an amendment.

You say "all persons" means just that; all persons regardless, no matter the circumstance. But you fail to acknowledge that others can read that to mean "all persons with the presumption they are acting legally and following the law."

Well I will just stick with the reality of what it actually says than what I wish it to say. So yeah, I do not acknowledge it says anything other than "ALL persons" I don't even like that it does, and think it should be changed simply to something like 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, whose parent(s) are legally within that jurisdiction are citizens of the united states.'

First, I do see a problem with trying to make a law that says you can wear a shirt that's red when the constitution says you must wear a blue one. Red ain't blue, so that kind of change will absolutely require a CC. We agree there. Where we part company is where you are standing on a single definition - your definition - and insisting that over 200 years of legislative process and judicial reviews are ALL WRONG.

Red is red, blue is blue, but all is what you want it to be? Nope. I am not suggesting all process and review is wrong, but I do hold some are.

Red is red right? so then if all is -
ALL:
1a : the whole amount, quantity, or extent of <needed all the courage they had> <sat up all night>

2: every member or individual component of <all men will go> <all five children were present>

No where in any definition of all in this context do I see any ambiguity, to get that equivocation you have to add a modifier, like 'All but...' 'All except'

Maybe you could cite for me the Amendment that removes...

I guess I have not been clear in all the replies before, I think anything that abridges a right without actual cause of an individual is an infringement and unconstitutional. Shall not be infringed is pretty self explanatory. That congress and the court have taken it unto themselves to redefine the language for agenda is not really relevant. If you do not believe words mean things and are subject to arbitrary interpretation, then I guess the constitution is irrelevant as well.

No. The concept of the living constitution is to say that the constitution is only time-relative.

Sorry, it does indeed mean that it can be interpreted to mean whatever it needs to be at any given time to be enabled to adapt to current situation without changing it. And that is exactly what you are doing with it. They use the idea that because machine guns were not invented at the time that they can ignore the infringement and regulate them away for intent and purpose of not being the arms they had in mind, just like you would make all persons to mean what you wish as if illegal immigration is new.

But you told me earlier that the 14th Amendment allows rights to be stripped away so long as just cause is shown, thus no voting or guns for criminals, etc. So how can "shall make no law" mean NO law when the other Amendment says it's perfectly fine to do that if I can show just cause? That's all I'm asking in a law; to write a law that in itself shows just cause why a single group of people breaking the law to go around an established legal process ought not be included in a broad class of people known as "all persons." That's exactly what becoming a felon does to ALL citizens over 18 have the right to vote. It's a law that shows just cause why you need not have the right given inherently to every other citizen. In short, the felon earned it. So did the illegal immigrant.

I also differentiated the child from the ones who actually broke the law, again you are regulating the innocent to punish the guilty. You cannot hold accountable anyone for something done before they were born. To prohibit automatic assumption of citizenship upon birth, regardless of mothers immigration status, you must amend the constitution. You don't need a convention, you need an amendment.

I agree with that. I don't think the government ought to have unlimited power but I do believe they should have the power to examine situations that affect our mutual good and our general welfare and make changes to laws if that's what called for.

The general welfare clause really only applies to taxation. And there is no perfect solution, every time a law is created it penalizes or infringes on someone. We generally accept that when its because of the behavior has caused harm, but any law of prohibition assumes guilt of people who have done nothing then must comply upon force with ceding of right to permission. In this case I totally agree the law should be changed, but I disagree the avenue in which you are wanting it.

I am not denying the way the law has been practiced has been done for a long time, more than a 100 years especially has been onerous to the constitution. But here we are at precipice, or in fact past the point of lost individual sovereignty and statism as supreme, and doing things like they have been done is exactly why we are here, so doing more of it is not a solution I will accept. Wrong is wrong, like red is red and I don't care if the full weight of govt declares it otherwise, that remains. Its why I am so adamant in this even though I do not agree with how its used, when you allow the nuance of interpretation, you lose the baseline of what the constitution is supposed to set forth. And the result is the govt we have now, soft tyranny is what you get.



After all this is it any wonder that govt can't function, we can't even agree among ourselves, and for the most part you and I are on the me page.

[zrct02]

The law was broken by the parents. The kid was not born yet, they broke the law with express intent to go around the normal process of law as regards immigrating legally, and then, after the crime, the kid was born.

Not to be nitpicking (OK, maybe I am) but the kid was born during the crime.

[Grug - American Neanderthal]

True enough, yet still makes no difference in him being a citizen for being born here. The mother is a criminal in being here illegally before, during and after, but we don't hold responsible the children for the parents criminality.

[HiTemp]

Regardless of how each of us feels about the correct path to the solution, ultimately that path will be determined by the people charged with taking the necessary actions, if they ever do. Right now, Congress has absolutely no intention of making an Amendment, so the reality of it is that it would take a state-driven CC to get it done that way. Right now there are eighteen states that have no interest whatsoever in going that route, and there may be more, those are just the ones who've gone on record. So that means no CC will be possible that way either. So we are in suicide pact mode as far as that goes.

I really see no future in trying to convince today's lawmakers that the system has been wrong for over 200 years and expect them to suddenly get a grip and start being strict constitutionalists in ANY regard, not just this matter. Expecting them to come around now and start acting in a way that limits the very power they crave is IMHO a pipe dream. People in that position just aren't going to let it go like that. It's just their nature.

So my proposal is to accomplish the goal using the manner they've historically done. I ask myself this question; is it better to do it the way it's been done for 200+ years and solve the problem, or is it better to suddenly hold them to a standard they don't even recognize and hope they'll get aboard, knowing the likelihood is approximately zero and the problem will continue? Politics is a dirty, nasty business. Sometimes you have to hold your nose if you want to get something done. That's their history. I don't generally ignore history because it's a pretty reliable compass.

Most of the answer to this problem could be corrected if we had two things in place; a secure border, and a straightforward process to enter legally with a logical process ending in citizenship. This problem has existed for decades, it's not new, but it's one of those third-rail deals where no congress member wants to touch it for fear of backlash. Right now we have the RNC totally convinced the path to victory in 2016 is through wooing the Hispanic vote. Rush pointed out the other day that Romney got 70% of the Hispanic vote and still lost, so what would they need, 100%? Maybe 125%?

I still feel not giving someone something is not a punishment. You didn't answer my question about altered grades. Is that punishment if I strip an innocent person of the benefits of another person's crime? If a person stole an object of yours and simply gave it away to someone who needed it, would it be punishing the needy person if the law demanded it back so it could be returned to the rightful owner?

I take note also that if the child is born to US citizens no matter where on earth, they are granted US citizenship. I wonder why that is if the only special magic is the geographic boundaries of US soil? Could it be that granting of citizenship in that case has to do with the parents already being legal citizens as opposed to someone who casually visited the US on the way to Canada? Why isn't that right extended to anyone who passed through the US? Seems to me if the logic is geography merits birthright all else aside, then we ought to be granting citizenship to them on the same basis; that to deny it is punishing them.

Why have a border at all for that matter if our laws carry no force at all? Let's just save a bunch of tax dollars and open them up to anyone, grant citizenship for the mere asking since geography matters and here they are and refusal equates to punishment? That's where the logic of "punishing the child" ends up. Absurdity, and absurdity means something is wrong with the argument.

I also would like to borrow you someday to help me deal with certain knuckleheads down at the building code office since they are in continuous punishment mode as regards me requests to expand my shop by 11 ft. Ask one, you get answer A. Fill out the paperwork and go to submit it and you encounter another person with answer B, making the request for permit ungrantable. Fix it again, submit, it's answer C which incorporates some of A, some of B, and intel collected via telepathy with wind shear failure analysts. Maybe you could give them the speil about punishment of the innocent and I could get an approval. Maybe they think it takes an Amendment to grant one, I'm not sure.

[Grug - American Neanderthal]

If I go that route and simply concede that law is not constitutional based, but just what is popular, I will not obey any of it unless forced to. The pact is broken. and that is what its coming to more and more in practice anyway. In fact its to the point because we just keep making laws that compound the problems instead of fix them, none of us can obey them all anyway.

Will passing a law solve the problem? Of course not, it will be challenged by the very thing I am arguing for, probably stopped in practice with a stay until ruled on, and how many more years until its finally heard? and what if its ruled down? you have spent as much time and effort on nothing as you would trying for an amendment to start with. Only that with a simply law, either way it will be a loss for this country, because if they uphold it, the constitution yet again is undermined, if they don't then nothing addresses the issue of the 14ths abuse. And if you want to talk about reality, there is no way in hell any law like that will get to the floor anyway in current political climate. So I guess law itself is a suicide pact right?

The grade analogy is basically a strawman. There is a clear right to citizenship upon birth in the country in the constitution, (not so for grades) denying that for a repercussion of the parent is a punishment IMO. A consequence of action not of their own. Unlike the grade thing that is based on merit to start with, citizenship is an inherent right of birth here according to the constitution.

There is no magic boundary, there are borders and jurisdiction, borders delineate jurisdiction in geography, but a US citizens is under US law jurisdiction when it come to determining citizenship of the US even if not born here, and so is that jurisdiction extended to anyone born within our borders according to the constitution, if born here, you are a citizen. We need to change that, but more importantly is just controlling who comes here before we worry about that aspect. You're right, what good is a border if its not enforced. And probably just as relevant what good is a law that is ignored as well.

I also would like to borrow you someday to help me deal with certain knuckleheads down at the building code office since they are in continuous punishment mode as regards me requests to expand my shop by 11 ft. Ask one, you get answer A. Fill out the paperwork and go to submit it and you encounter another person with answer B, making the request for permit ungrantable. Fix it again, submit, it's answer C which incorporates some of A, some of B, and intel collected via telepathy with wind shear failure analysts. Maybe you could give them the speil about punishment of the innocent and I could get an approval. Maybe they think it takes an Amendment to grant one, I'm not sure.

Heh, I would like to help, but we both know that how it should be and how it is are 2 different things.

I can tell you its one of the main reasons we moved from CO to WY was building codes. I got into with the country over a shop building, I did not pull a permit that I was supposed to for a foundation because I used more concrete than allowed without prostrating myself to the county. So I complied with their BS, hired an engineer redid the foundation supports for columns, which then caused the floor to crack. Got so fed up wit them I was gone by the following year to somewhere that had no building codes. Now that I am here and have lived this way of relative limited govt for a couple decades, I am not finding it within me that tolerates excess govt at any level. So I expect you will probably hear about me on the news at some point.

[HiTemp]

I am in Maryland this week doing some dog-sitting for my daughter who is TAD to Vegas for a training seminar. I have been doing a lot of reading this week and came across this article that was published in 2007, well before any of the modern anchor baby issues had as much focus in the public place of opinion. It discusses the origin and purpose of the 14th Amendment, and speaks of how birthright citizenship was handled prior to it.

A few things to note:

• There were common law birthright considerations that went back to English laws and those presupposed an allegiance - forced or not - to the monarch
  
• Though individual states had varying laws, they universally withheld birthright citizenship to those who fell under jurisdiction of a foreign government and refused to sever themselves from such relationship
• Madison's own comments regarding the difference between a person being here with intend to live under our laws and be part of our society, presumably legally, versus someone merely a transient in or on our lands
• The intent of the 14th Amendment being created to address the issue of freed slaves being able to become citizens

It was with great interest I noted that

Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.

Sen. Trumbull stated during the drafting of the above national birthright law debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”

The immediate question that pops into mind is why did the same Congress that just created an Amendment to the Constitution that says "all persons" turn right around and create a law in th US code that limited "all" if their intent was for the words in the Amendment to mean "each and every without exception?"  That just flies in the face of reason.

These facts certainly raise questions in my mind about the certainty of "all persons" being interpreted in an isolated way that doesn't factor in the "under jurisdiction of" part. When you stop and think about it for a second, if under jurisdiction meant everyone physically present in our nation, then the phrase would be entirely meaningless because who would be here and NOT be subject to our laws?  There was no such critter as diplomatic immunity back then, so it had be aimed toward a jurisdiction of someone or something outside of the U.S. and its jurisdiction.

This view ties in neatly with the first one hundred years of our nation's history when the idea of "natural allegiance" was rejected wholesale and, as the article points out, was a primary reason we fought the war of 1812 over.

This leads me to the conclusion that it would definitely not require an Amendment process to fix the current situation. It would only require the legislature pass a law, just as the Congress who gave us the 14th Amendment did.  Or, it could be done by the judiciary taking note of original legislative intent, which was very clear - if one came here intending to stay and is willing to sever all allegiances apart from those toward the USA, then they get citizenship; otherwise they don't.

Hope y'all are having a great week.  Will be glad to get home and have a real keyboard to type on instead of this iPad.

[Grug - American Neanderthal]

A red flag goes up when they start using things like this to set the false premise as if no one had ever thought about birthright citizenship until the 14th amendment.

Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.

In fact there were the Naturalization acts of 1790, 1795 and 1798 that included some of the original founders in congress who passed them which codified

"And be it further enacted, That the children of persons duly
naturalized, dwelling within the United States, and being under the age
of twenty-one years, at the time of such naturalization; and the children
of citizens of the United States, born out of the limits and jurisdiction
of the United States, shall be considered as citizens of the United States:


They even went so far as to limit that birthright citizenship in cases

"Provided, That the right of citizenship shall not descend to persons,
whose fathers have never been resident in the United States: Provided
also, That no person heretofore proscribed by any state, or who has
been legally convicted of having joined the army of Great Britain, during
the late war, shall be admitted a citizen as aforesaid, without the consent
of the legislature of the state, in which such person was proscribed"

Those were repealed by the Naturalization Law of 1802 which at that time started to require recording if aliens entering the country also made birthright citizenship conditional upon several instances, for example one exception of being born of a foreign diplomat, and also maintained the condition of the mother upon the child, continuing the legalization of slavery and denying citizenship to slaves and former salves children unless they were naturalized citizens which was only repealed in 1855, so there was always some sort of legal mention if not mandate of birthright citizenship prior to the 14th.


And of course the constitutions mention in Section 1 of Article Two of the United States Constitution sets forth the eligibility requirements for serving as president of the United States:
No Person except a natural born Citizen, What are they talking about there?

Unless you are going to try and make a case that naturalized citizens actually had more right by intent of law than natural born citizens, it was naturally assumed that if you were the child of a citizen born here, you granted citizenship at birth, the question in law only being under the circumstance of being born abroad or progeny of a naturalized citizen. Until the lawyers came in and tried to make a case for excluding some as alien despite being born here. What allegiance by default did former slaves have to this country if that is the measure of citizenship, they had to affirm no oath.

The 14th changed that, or we would not even need an amendment if the law remained basically unchanged before or after.

Further the idea put forth that jurisdiction does not extend to those who have allegiance to another nation is moot, if they are coming here to gain residency and eventual citizenship they rescind that allegiance by default in the same manner of assumed intent we are to believe they actually only meant certain people are eligible under 'all persons', and the rule of the 14th would still apply.

I still maintain if that was such a concern to them, they certainly could have worded it as such, just as other amendments and sections had specified intent. But they had to leave it at just that to get it ratified. In Trumbulls interpretation of all persons, there would be no recourse to enforce any law upon them, not being subject to jurisdiction of US law, not just immigration law, because you cannot use that exception of jurisdiction of law and then expect any law to be enforceable on aliens. In fact that is exactly what these "free inhabitants" are claiming, that by renouncing their citizenship and becoming resident aliens, they are not subject to the nations law. Do you agree with that? Clearly this needs addressed through yet another amendment.

Yet they were concerned enough about inclusions and exclusions, that the very next amendment they specified prohibition on aberration of voting rights. Why not just let congress make a law declaring what race and color really is? NO, what ever the intent of certain individuals were, the wording that actually passed and was ratified is plain and straight forward.

But the bottom line is this, the founders did not intend for the Constitution to be nuanced to the point that original wording ignored, it was intended to be straight forward and a hard limit on federal powers. Using this kind of rationality to change the actual wording has brought us this massive tyrannical federal govt, because there is no limit so long ans they can nuance the meaning of words to be other than what they are.

[HiTemp]

I think the point the article was making is not that there were no laws affecting citizenship prior to the 14 th Amendment but rather that there was no contention about what any citizenship law meant where they did exist. What I took away from it is that the original colonists of this land and those who came after including our Founders and generations after had a natural distaste toward the concept of a government deciding what nation one was be loyal to regardless of what the person themselves desired. This thing with children of colonists having British citizenship forced upon them, for example. It's exactly the kind of things those laws you cited address, that is there is the matter of opportunity to have citizenship AND there is the matter of allegiance. One without the other was never regarded as a good sound basis for granting citizenship in the case of aliens, but it was presumed to be present in the children of those already citizens themselves. That's only natural since what basis would there be to assume a child would inherently wish to reject the same citizenship his parents enjoyed? What, was he born with a desire to move away?

The larger point I was trying to address is the ideas already stated about strict reading of the Constitution and Amendments. You reject the idea of a law being made because it conflicts with how you read the Amendment. I agree with on the principle that laws can't be made to end-run an Amendment but I'm showing you that the people who crafted it did exactly that because they did NOT read it how you do. Therefore it's not going around the Amendment but simply crafting a law that stated exemptions fully within amendment bounds. It kind of seems like a football fan who watched the game on TV trying to tell the left tackle what got said in the huddle.

You previously stated that all persons must mean everyone without exception otherwise the drafters would have either explicitly listed exceptions or would have used a different word in the 14th Amendment But that cannot be true if that very same congress codified a law that DID make exclusions and codified it right after the Amendment was made. Whatever they meant by all persons it was not everyone without exception. There is no way around it. Did they make an Amendment just so they could ignore it?

The only way both actions by the same Congress make sense is that the "all" in the Amendment is directly linked to the under jurisdiction phrase, and something in how that jurisdiction applies determines if one is included or excluded from the group "all persons." If under jurisdiction is read to mean whether or not US laws can be applied to them, like can they be arrested for a crime, then under jurisdiction is both redundant and meaningless because there is no such person who is in the U.S. that cannot have our laws applied to them. If that was the correct reading, and there is no group uneffected by our laws, that would mean all must mean each and every - but it can't since the authors of the Amendment subsequently made exemptions in law. The only way out of the logical fallacy is for under jurisdiction to be synonymous with allegiance to. Then it all fits into place. All persons then includes only those whose allegiance belong to the USA and to no other. When the 14th's authors turned right around and carved out the exemption in the U.S. code, exempted were those who beared no allegiance to the U.S. That fits perfectly with a 14th Amendment read to apply to all persons with allegiance to the U.S. and not under the jurisdiction of any other government.

I don't see any other way both acts were both legally sound. And if the congress who produced the 14th didn't know what they themselves meant then how can we have any faith in any Amendment if we can't trust the people who created them to know what they meant? It leads to la-la land.

What's crystal clear to me is that citizenship, naturalized but especially birthright, was not something anyone from the Founders to the authors of the 14th were willing to just hand out to anyone like it was a discount coupon for a pizza parlor. None of their comments mesh with a scenario of a pregnant mother ignoring the our law, being a citizen of another sovereign nation and under their jurisdiction, sliding in under the radar and we give her kid birthright citizenship. That's completely ass backwards from the sentiments expressed by the people who had to decide the tough issues of who gets it and who doesn't regarding citizenship.

Just from a common sense view, why would anyone want a citizen who didn't give a rip about allegiance to our nation? Why would we want a citizen whose allegiance is to Kim Jong Badhaircut or to write death chants to the USA for Khomeni? Why do we demand that allegiance in a naturalization process when it matters so little to us that we'd give it away to the scion of a criminal? I think the answer is evident; it was never meant as a give away but was always meant to be something of great value that costs people their faith and trust to get, their faith, trust, and lives to protect, and established allegiance to only our nation before we give it to their kids like it was an ice cream cone.

The best answer is to make momma get in the legal line first and sort out the matter of jurisdiction/allegiance first, THEN the kid gets granted citizenship. I wouldn't even have a problem with a retroactive period to allow for the process to happen, but not just hand it over. It's value is too great for that.

[Grug - American Neanderthal]

It always comes back down to the constitution is meaningless when you can simply legislate away its limit or mandate by current popular opinion in congress, and I think the most compelling argument is the reality of burdensome govt you seem to accept with all the laws on the books that have made so many amendments moot. You use original intent on this, but then dismiss original intent when its ignored in law for other things. There is a basis for law, it is the constitution, and it is soundly ignored or "interpreted" so that simple wording has become convoluted, that is just fact. Words mean things, its why they use specific wording to start with. All persons means exactly what it did back in 1865, the argument about law jurisdiction not extending to aliens is weak at best if not out right idiotic. The amendment empowers congress to enforce provisions, not create subdivisions of persons which would be counter to the very amendment its in.

You are right, there were condition of citizenship from the founders, the 14th however changed that. The 14th was not from the founders, it was from reconstructions who were not as brilliant, nor as far seeing as the founders were, they made a mistake in not limiting it constitutionally when they created an amendment, it should be corrected, not compounded by unconstitutional law that will be challenged on the grounds of the same amendment its seeking to CHANGE. Yes that is how I see it, it may not be popular, nor shared by some in the legal system, but it makes perfect sense when reasoning what the constitution is supposed to be, not what law currently is. This country is lost without a restoration, and its these very things is why, because law has become about populism, not justice nor constitutional continuity.

Why would we want a citizen whose allegiance is to Kim Jong Badhaircut or to write death chants to the USA for Khomeni?

Why would you give a former slave citizenship who has nothing but hatred in his heart to white people, yet we did just that without even a question to who their allegiance is to. So are we going to go back and rescind citizenship for all those? More importantly we gave it to everyones children born here as their condition is not based on the parents as the law was previously to the passage of the 14th, which is what it changed. As I have said many times now, I don't agree with it, lets change the damn amendment instead of doing mental somersaults rationalizing the subversion of the constitution.

[Garf]

What I favor is deploying the army on the border with orders to shoot to kill anyone illegally crossing the border. You could warn Mexico first, or just let the blood flow and let word of mouth flow if any survive. It's about time we do something decisive. The main problem is our government has no guts. If they weren't common criminals, they wouldn't be sneaking in.

[Grug - American Neanderthal]

Me too, some think the best way is to end a reason to come, kind of a chicken and egg argument, though I think they will come regardless so long as they can live here better than where they came from.

[HiTemp]

Sept 21, 2015 6:23:26 GMT -7 Grug - American Neanderthal said:

It always comes back down to the constitution is meaningless when you can simply legislate away its limit or mandate by current popular opinion in congress, and I think the most compelling argument is the reality of burdensome govt you seem to accept with all the laws on the books that have made so many amendments moot. You use original intent on this, but then dismiss original intent when its ignored in law for other things.

I agree with you that there has been many instances of laws created that circumvent the Constituion or else meld parts of it into something it never was. Abortion and gay marriage spring to mind. I also agree with you that those cases were not the proper way to go about; that an Amendment process would have been the more appropriate, perhaps the only appropriate way to resolve the issues.

Where I am differing in this issue is not in a desire to see yet another case of leap-frogging Constitutional barriers but instead recognizing the harmony between the wording of the Amendment and the actions of the people who gave it to us. I have to believe there is no other person or group who knew exactly what the intent of that Amendment was than they who authored it. Do you dispute that the Congress who passed the Amendment were the top authority on its intent and meaning? If that group of experts then turn right around and craft a law that carves out limitations to the very Amendment they just passed, there are only three possible things one can conclude:

- they went through all the trouble to pass an Amendment they fully intended to ignore

- they had no idea what the meaning of their own Amendment was

- they knew exactly what the Amendment meant and what it's purpose was and crafted their law imposing restrictions in perfect harmony with it

I choose to believe the latter because it's the only one that makes sense. The other two are just beyond reason. IF it's true the law was in harmony with their Amendment, then it's equally clear there was room in their minds for limitations, meaning only that "all persons" had to have some qualifier. Both the Amendment and their law had qualifiers, and it's on that basis that I believe it is in compliance with the Amendment to revisit those same qualifiers today through examination of jurisdiction and allegiance as it applies to our modern situation. It's doing exactly the same thing that Congress did.

There is a basis for law, it is the constitution, and it is soundly ignored or "interpreted" so that simple wording has become convoluted, that is just fact. Words mean things, its why they use specific wording to start with. All persons means exactly what it did back in 1865, the argument about law jurisdiction not extending to aliens is weak at best if not out right idiotic. The amendment empowers congress to enforce provisions, not create subdivisions of persons which would be counter to the very amendment its in.

But you really don't believe all persons meant the same as it did in 1865 because then there was a limitation codified into law that restricted who was in that class of all persons and those limitations were made by the same people who made the Amendment. Clearly they didn't see it as violating the Amendment, and the only conclusion from that is that all persons really means all persons who fit a certain set of criteria, such as jurisdiction. Note again the law they codified did precisely that - it limited all persons to those fitting in the desired subset through the criteria they met or did not meet.

they made a mistake in not limiting it constitutionally when they created an amendment,

You think so but they didn't. They were perfectly fine with crafting a law setting limits that, in their view, didn't violate their own Amendment. Most likely because the jurisdiction phrase gave them the latitude to make the law and still be inside the Amendment boundaries. I see no evidence that Congress was a bunch of Chicago liberals that held the Constitution in any lower regard than you do. They made an Amendment intending for all persons to bear on jurisdiction or allegiance and followed it up with a law comlying fully with that ideal.

That's why I think we could do the same today so long as we keep in line with the original intent of the Amendment, in this case applying those same limitations to our modern situation. That is, we demand a clear showing of jurisdiction / allegiance before handing out birthright citizenship to someone of unknown status, just like we do with the legal immigrant who desires citizenship.

Otherwise why ever follow the law? Laws have to have some sense and meaning or what good are they? Imagine if you made an error on your tax return and got fined for doing so while the person who deliberately falsified most of his return was given a pass - who in their right mind would follow the law and risk penalty?

[Grug - American Neanderthal]

They were perfectly fine with crafting a law setting limits that, in their view, didn't violate their own Amendment.

And they were wrong, just as the founders were in excluding women and allowing slavery. Yet the very system allowed that to be applied to where the original rights are extended to all people, and it was not done through a simple law.

They made an Amendment intending for all persons to bear on jurisdiction or allegiance and followed it up with a law complying fully with that ideal.

But they didn't, they made an amendment that stated all persons, what they intended was some people were not persons but aliens, which is exactly what the 14th was supposed to stop from happening. It was not as cut and dried as you seem to paint, because as I mention, there was no test of allegiance for former slaves who had no allegiance to this country by natural condition and were in fact treated as aliens just as the people here illegally were. Yet they blanketly deemed them citizens because of where they were born, which flies in the face of the allegiance litmus test jurisdiction was supposedly based on, none of them would be citizens if this was applied equally which the 14th also mandates. The jurisdiction argument is specious unless you have preconceived agenda for its use. The wording of the amendment included them all and still does, regardless of the law they created after, which I doubt would pass the test in court now any more than a new law would.

[HiTemp]

So the Congress that wrote the 14th Amendment was WRONG when they crafted a law right after that which imposed limitations on who was in the class "all" and "under the jurisdiction of?" That's simply amazing. So, which do you think applies to that Congress... they didn't understand their own wording and intent, or they were simply out to defy the Constitution after just taking great pains to go through a process to change it? Isn't that kind of like making sure to fill out a withdrawal slip to rob a bank, where you go through the legal hoops when your intent is to bypass the whole shebang and steal the money anyway? It just makes no sense.

If the Congress' intent was to make a law that imposed limits, and THAT flew in the face of the Amendment, doesn't it stand to reason that they would be sure to craft the Amendment in such a way that their subsequent law would be legal? Otherwise they'd be total idiots. BUT... if their view of the Amendment's wording was such that the jurisdiction phrase covered their subsequent law limiting citizenship, then there is no foul as they would simply be making a law true to original understanding and intent, legally within the Amendment.

It's all in the jurisdiction phrase and its meaning. You have posed that it means a person subject to our laws but that cannot be true because there is no class of people IN the country by whatever means that ISN'T subject to our laws, or at least there wasn't back then. So it cannot mean that, it has to mean jurisdiction in a way other than applying criminal law to. It would mean things like subject to administrative laws, like eligibility for a draft; which nation gets to issue and thereby control one's passport. Those too are matters of jurisdiction, so it isn't strictly allegiance in the sense of freed slaves having questionable allegiance, although allegiance in most cases does come into play. It would come into play for example in the case of a person merely traveling through the US from another nation to a different nation. Say they were Canadian citizens en-route to Brazil to visit family and the mother delivers the baby 6 weeks early in Tucson, AZ? Is the intent of the law to brand that child with a citizenship the parents don't want and the child will likely grow up to find useless? Probably not, and the reason would be the parents are under the jurisdiction of the Canadian government; they are citizens there and aren't wishing to immigrate; they were merely passing through.

If we grant citizenship to that baby we are de facto granting the same kind of forced birthright citizenship the British imposed on colonial citizens, something universally rejected by our Founders and those who succeeded them. Think of the implications... the baby goes back to Canada and 18 years later we have a draft... should we then issue a warrant for his arrest for failure to answer when called and commence extradition proceedings so we can get our citizen back and punish him for his failure of allegiance to a nation he never wanted any part of? What if the war is against Canada? Should we expect or demand he give up allegiance to the country he lives in and is a part of because we stamped him with a "made in USA" logo 18 years earlier and now his allegiance must be to our cause?

We can't have it both ways. We either grant citizenship to every baby born here without regard to their present or future intentions under the rubric of "all persons" means just that (and the 14th Amendment is on its face unconstitutional because it contains the "under jurisdiction limitation), OR we consider the circumstances surrounding the birth, specifically the jurisdiction part, and draw some lines of distinction. That's what the Amendment does, because it obviously doesn't apply to a person NOT under the jurisdiction of. The law that same Congress passed draws lines too, and they are also based on what side of the jurisdiction line classes of people fall. That means it IS constitutional, specifically as regards the 14th Amendment. We could make another law today the same way, using the same criteria - the question of jurisdiction. Does a baby and/or it's parents fall "under the jurisdiction of the US?" If the answer is no they don't, then such a law would not violate the Amendment we already have in place, and that's been my point all along. Is isn't as simple as saying "all" means each and every with no exceptions. There are exceptions, otherwise the Amendment would have just said "all persons" period, but it doesn't say that.


In the case of slaves, we had some states recognizing them (as eligible citizens) and some states not, and other states having some litmus test to see if they were or not. What the 14th did is establish a federal standard that applied everywhere. That was a necessary thing because a freed slave could end up a citizen on one side of a river but not be a citizen on the other side. This is analogous to why the FL legislature established itself as the sole regulator of firearms laws in the state. That was because there were so many widely varying laws county to county and county to cities that an ordinary citizen driving across Florida would be legal one minute, guilty of a misdemeanor the next, and a felon the next. Depends on where they were at the minute. That's the same problems that faced the freed slaves, and the 14th Amendment solved it by essentially a matter of decree,exercising exemption over all the states. But that was in response to a specific, period-extant problem.


So it was not simply a matter of allegiance but jurisdiction. Slaves brought here and living here for years, some 2nd or 3rd generation, were not likely to be under the jurisdiction of another nation, particularly tribal regions within Africa from which many were brought here. You could say that this Amendment offered a "presumed" jurisdiction or allegiance for all where it was likely going to be difficult to prove one way or another. Thus all it really did was keep people already here who wanted to remain here as free citizens a way to do that without having to first be deported and then come back to go through a process or run afoul of a different state's laws.

I don't really think the freed slaves in this country quite fit into the same box as people breaking our laws to come here only to grab a citizenship solely for the benefits it grants the child and by extension, the benefits it grants and gives to the parents. It is not clear what their jurisdiction is, where their allegiance lies, and there is no telling if they intend to stay, particularly if all the free benefits were to dry up.

I think that raises a legitimate concern as regards the under jurisdiction question, and if that question is resolved to be that anchor babies and their parents are NOT "under the jurisdiction of," then it's perfectly legal under current law and under the 14th Amendment to say no citizenship for you and send them the hell back home where they can then attempt immigration the legal way and be welcomed.