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Post by HiTemp on Sept 22, 2015 21:27:41 GMT -7
Here's a simpler question:
The Amendment says "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."
What stops the legislature from making a law like this? "The following classes of people are considered "not under the jurisdiction thereof" for the purposes of applying the 14th Amendment citizenship considerations: a. b. c. d.
The Amendment doesn't define it clearly enough that us two citizens can agree on its meaning and application, so how about Congress makes a law that spells it out? Is that Constitutional for them to do that in regular session, or do think they have to use the amendment process to spell them all out INSIDE the Amendment itself?
Second question, what if the courts - who are famous for constructing "tests" - decides to issue a ruling spelling out how to determine if one falls into the category "under the jurisdiction thereof" and by exclusion, who does not? Would that be constitutional?
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Post by Grug - American Neanderthal on Sept 23, 2015 8:46:57 GMT -7
Absolutely their wording did not match their intent. When the founders amended, they did not use absolute wording with the intent of using law to change the meaning of it. That congress was not the founders, they did a lot of things that would not have passed muster in the founding, or now.
So its all about allegiance in reference to jurisdiction to aliens unless its black people? And you see no problem with the this duplicity and this congress using is it is all straight up and fine? Sorry, I don't think so, I don't care if it was 'how they did it', it was BS then, and its still so if you want to use applied reason across the board. The way they worded the jurisdiction left it open regardless of intent or not, that what it did.
Now all of the sudden intent counts? If that's the case then intending to come here and have a baby for it to become a citizen and you become a resident certainly qualifies for the jurisdiction then and the 14th would still apply to them. This is why any convoluted rationalization of exclusion is pointless, it can be countered by the very language in the amendment, and the original intent argument for exclusion.
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Post by HiTemp on Sept 25, 2015 8:38:59 GMT -7
And it's only now, 150 years later, that anyone has a problem with it? Why was there no outcry then of going around the Constitution when this law came up for vote shortly after the Amendment passed? What proof do you have to show that the Congress in question did NOT mean to allow the matter of justification to be defined in law as they themselves did? Where is the record of that?
Perhaps we can use the words of the people who actually authored the 14th Amendment and the accompanying law (Sec. 1992 of U.S. Revised Statutes) to tell us what their intent was.. wouldn't that be the most reliable way given they are not around to question? How about these:
Isn't he saying the law is in accordance with the Constitution (and the Amendment they just produced)? If not, you tell me what he's saying. If the condition of the parents was irrelevant, they wouldn't need an Amendment nor a law because it already existed in the old common law rule of citizenship (like the one the Founders vigorously opposed). This suggests strongly there was more to it than simply geographic opportunity.
Senator Lyman Trumbull, one of the two people who actually framed the 14th Amendment said
Senator Jacob Howard, the other actual framer of the 14th Amendment said this regarding the jurisdiction clause
Considering all of those words expressed by the people who made the 14th, including the two who actually wrote it, please explain how writing a law that says
is unconstitutional and apart from what the Congress who gave us the 14th thought it meant.
It's crystal clear. They excluded Indians not taxed because by law the US dealt with them via treaties similar to other foreign governments. Everyone else born here and NOT the subject of another government, "alien" in the words of Sen. Howard speaking of the Amendment, was to be a citizen.
They most certainly did. The term "militia" is used in the Constitution, but isn't defined there. Who exactly makes up a "militia" is defined in law. Only a year after the Bill of Rights was ratified the Congress passed the 1st Militia Act of 1792, and 6 days later passed the 2nd Militia Act of 1792. Passed another in 1795 when the first one expired (in 1794). By your criteria, these Congresses, many of whom WERE Founders, didn't understand their own intent either because they didn't alter the Constitution to further define what they meant by militia, or to change the construct of who fit into those criteria as their successors did in 1862 when a change in law allowed black men to serve in the military forces. Yet another example of Constitution-stompers using the exact same methods as the Founders.
No, I never said that. They could have been green or purple, didn't matter. The fact is that the Congress had before it a very unique problem; that is, people who were held here in slavery and were then freed, coupled with a widely varying set of state laws that treated the citizenship status of this group differently, depending on which state they ended up in. If a family of 6 ended up in six different states, their citizenship status could range from full citizen to unrecognized citizen. THAT was the particular problem that brought about the need for a 14th Amendment. There were no cases of these freed slaves saying, "Hey, just get me on a boat, I want to go back to Africa." Once freed, all they wanted to do was live off their own land and for once taste the fruits of their own productivity. Because of that unique circumstance, Congress included them as a particular class of people and presupposed an "under jurisdiction" status where in reality it couldn't be proven as would the case in a normal immigration. What was their alternative, round each one up and get them to sign a declaration rejecting outside jurisdiction when many could not even read?
Not all duplicity is evil. So, no, not if there is a valid reason for that duplicity, some special, unique set of circumstances that wasn't able to be solved without using a method that varied from the norm. We have one set of rules for engaging in war, but we have an entirely different set for engaging in nuclear war. Is that something evil because it is duplicitous, or does it make good sense considering the level of destruction and the level of likely consequences including retribution?
When they made an Amendment giving women the right to vote were they duplicitous for not making another one saying men do too, or was it okay to only address women in this duplicity because men were already voting?
In this matter of the freed slaves becoming citizens, the widely varying state laws (including states with no law on the matter) needed to be addressed in order to avoid a situation far worse than duplicity - multiplicity. To accomplish that, Congress made the Amendment and in doing so, they discussed and considered the matter of slaves and their jurisdiction.
Not if you consider what the people who authored it and passed it took into consideration. It wasn't a matter of intent, it was a matter of to whom does one owe allegiance and in the case of a baby, whom the parents owe allegiance to. It's right there in black and white what they said and what they thought when they made the Amendment and the law that meshed with it. If you vary from THAT, then you're doing to the Constitution the very thing you are accusing everyone else of. Modifying what the intent is because you don't like it.
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Post by Grug - American Neanderthal on Sept 27, 2015 16:01:45 GMT -7
For one, its not the 1st time, and I am not breaking any new ground in this complaint of congress ignoring its own laws and amendments. For another its you who seem to have a problem with this only after 150 years of its practice. If the law they made was still valid, which must have been repealed or we would not be arguing this as there would be no anchor babies. Seems like a great reason to amend the constitution, but then, what does it matte if congress can just make a law that changes the who meaning of what the constitution says by interpreting to mean what ever they want it to at any given time.
So you want to know why law makers make laws that do not follow their own limits?
Sorry, the reconstructionists were not in the same class as the founders, they made serious mistakes, obviously this is one, because in their wisdom of using that language to couch their intent they have created the very problem we are arguing about now. The use of jurisdiction was never used in such a general way by the founders, when they used it, it was expressly noted what for. There was never this nebulous claim of jurisdiction not applying to certain sector of populace which they never named. I don't really care if that the way its been doe for 150 years, since that time the fed has grown is scope and power that the people no longer control it, we as a people gave them an inch then, and the have taken a 1000 miles since, if you want that, that's fine, I don't.
But the term militia never undermines the phrase shall not be infringed. Name a since gun law they passed that barred anyone not in a militia?
So apparently they had no problem blanketly giving citizenship to unknown former slaves as resident aliens regardless of their own attitude of standing to America, but a Mexican or Canadian resident alien living and working here 2000 miles from DC and its infinite pool of wisdom, then having a kid is completely a different thing being they are not in our jurisdiction because they may have a allegiance to a country they no longer want to live in. Yes I can see the solid reasoning here. I think if you use this argument in the use of that in jurisdiction, it gives any illegal immigrant here the right to have their kid a citizens, if their intent is to become part of this country.
Duplicity, where you are trying to portray the opposite of what you mean where I come come from is deceit, I don't find much to tolerate about it.
The constitution was never intended to be so general that it takes a army of lawyers to figure it out, in that if the 14th was meant to do something OTHER than what its says plainly it was a failure of its original intent, and only a lawyer would appreciate the nuance. I am not a lawyer.
Again, if this is such great way to fix this problem why is it not fixed to start with since this was law? Your whole idea is a failure from the start, because is this was supposed to be stopped by obscure intent of a legislator, it was lost in the reams of paper they generated in being too smart by half.
We can fix it, doing as the constitution intended to start with and amending the power that gives people birthright in it.
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Post by HiTemp on Sept 28, 2015 14:07:11 GMT -7
For one, its not the 1st time, and I am not breaking any new ground in this complaint of congress ignoring its own laws and amendments. For another its you who seem to have a problem with this only after 150 years of its practice. If the law they made was still valid, which must have been repealed or we would not be arguing this as there would be no anchor babies. Seems like a great reason to amend the constitution, but then, what does it matte if congress can just make a law that changes the who meaning of what the constitution says by interpreting to mean what ever they want it to at any given time. You keep changing course on this like no one is manning the rudder. I've already stated that I agree with you that changes to the Constitution and its Amendments must be done using the normal or alternate (state convention) method. Those are the only two acceptable ways. I agree with you also that, over the years and in many cases, Congress and the courts have overstepped their limitations in making laws, and yes, I do agree that is a bad thing and disrespects the constraints placed on government by the Constitution in its whole. Where we differ is in THIS PARTICULAR case where you present an opinion that making a law that limits to whom the jurisdiction phrase applies is unconstitutional. You claimed that "all" in the 14th is clear; it means the same as each and every without exception. But I presented evidence, the very words of the people who crafted the Amendment proving that they did not mean that, AND that is the very reason they added the jurisdiction clause into the Amendment. I gave you quotes showing what things they considered and those words undeniably show they had concerns about SOME people not being granted citizenship, specifically birthright citizenship. When they codified the specific classes into federal law defining exactly who fit into each class, you claimed their making that law flew in the face of the words of the Amendment, implying the only way that could happen is that Congress didn't even know what they meant when they wrote the Amendment, OR they did and willingly chose to go around the Constitution they just took careful pains to follow. Evidence for that? None. Just a feeling, in contrast to the quotes showing you their exact thoughts and concerns. When asked to explain how those Amendment authors could say all those things, act in the way that they did, and have somehow gone off the rails, the only case you make is some kind of appeal to what you think the Founders wanted or didn't. If you can't look at the Congress in 1868, read their very words, and agree those words have evidential value, then I have to question how you can look at a different Congress a century earlier and suddenly find what they have to say somehow compelling. Each of those two congresses had the same exact power granted by the Constitution. Each made changes to it. Each then made laws further defining things, each keeping within the boundaries of the very limits they themselves crafted. It's ludicrous to believe one of those congesses was pure as the driven show while the other were scoudrels without any proof other than a generalized statement that over the years many politicians have departed from the limits set forth in the Constitution. Well this isn't every other case; this is one particular case, so where is your evidence they connived to circumvent their own Amendment? This makes me laugh because it's one of the primary arguments used by the "evolving Constitution" crowd, the one you claim I'm following. Their argument is no one can really know what the Founders wanted therefore every congress since is automatically in error somehow, some way. I would point out that even the Founders made fundamental errors, one of which is muddying the statement of a personal right (bear arms) with a purpose (in order to ensure... militia..) such that some time down the line people would try to hinge the personal right upon how closely it tied or did not tie to that purpose. The Founders "all men" didn't, in fact, include an "all" that meant each and every, it only meant free white men at that time. It was only a hundred years later, when that pesty, erroneous, out-of-touch-with-the-Founders Congress was making laws that they altered it, and its been altered several times since (early 1900s - women's suffrage) all in an effort to conform us to original principles that were not originally practiced. So which is superior in your view? The "all men" practiced by the Founders, or the "all men" we have now, altered through the course of national history in the exact same way as the issue under discussion? Why should they have used it in any other way than in response to the situation they faced? That would be like faulting Madison and Jefferson for failing to envision that someday Washington D.C. would ban handguns or try to. They can only act on the information they have, the situation they are in, and the best possible solutions they can come up with. No, jurisdiction wasn't a big issue for them because they were a brand new nation that just broke from the yoke of a monarch. Slavery was still legal, even commonplace. So why would they have given a second's thought to issues like birthright citizenship to freed slaves? That's just a straw man. No, I don't want that, and that wasn't my point. My point was that there was no tidal wave of people accusing the Congress of 1868 of running afoul of the Amendment they just passed. As I've quoted, that Congress left a record of what they discussed, what they considered on either side of the argument, then made an Amendment, then a law that didn't run afoul of the Amendment because we know what they intended when they made it, and the law reflects those same ideals. That makes the law Constitutional, not UNconstitutional, and that's how people, politicians, and the courts saw it to. You, for some reason, DON'T see it, but you're pretty much alone in that opinion. Why is it, do you think, that the people alive back then didn't put up a fuss about this, and it's only 150 years later that you do? Do you have some kind of information today that those people alive back then did not have about the situation in that day and age? Or is it that you reject so many OTHER grievous end-runs of the Constitution that have occurred over the years that you are willing to blindly lump anything that might look like one automatically into the same category? I'm not sure why. Maybe you could explain why, without all the generalizing and addressing this specific case? Know why you can say that with certainty? Because at certain points in time people DID try to imply the right to bear arms wasn't in a vacuum but somehow hinged on other things, the militia being one of them, and when it went to court THEY LOST. The very fact it had to go up the legal ladder of the court system ought to speak to the clarity with which "everyone" understood what the Founders intended. Fact is, some didn't, and fortunately for us, the courts DID and ruled accordingly. As I wrote earlier, they were not trying to solve the issue of should slaves be or not be citizens. That issue was already solved for them by the various state laws. What they were trying to solve is the giant... let's use your word - duplicity created by leaving the issue of freed slave citizenship up to states in the case where all the states' laws were different, if they existed at all. This means in some cases a slave would be free in one state but not another. So they had to act in order to create something that granted freedom and citizenship in a fair way across the board. That's the problem they were there to solve. When they went about solving it, there were concerns by various members of that Congress. One major concern was that some members of Congress had reservations about making a law so broad that it could be conceived to apply to Indians as well as freed slaves. This was a concern because the US dealt with Indians (and had all along) as though they were a separate nation by way of treaties, and those with concerns did not want in any way to carve a loophole around that. They were content with the treaty process and sought to keep it. That required, then, some way to keep the Indians out of it while still making it broad enough to apply to everyone else. As they discussed these concerns back and forth, we come to see in the record that they also desired to EXclude those without allegiance to use, such as the casual tourist or the foreign diplomat or "aliens" to use their own words. Their solution was to craft the 14th A stating that is applies to "all" but then inserting a phrase used as a limiter - the jurisdiction phrase. Well now they're stuck again, because how do they know if any freed slave has allegiance or doesn't? The nations they were taken from didn't have a stood-up government with citizenship records that they could access or request - most were taken from or sold by tribal leaders when they came. Many of the slaves were not first-generation slaves, so to whom do they belong? All valid questions, no easy solutions. So they crafted the laws (Amendment and federal code) in such a way that it had the effect of presuming jurisdiction because citizenship was granted in a blanket manner. While it never SAID "we presume they fall under US jurisdiction," the effect was the same as if they did. It's the only time that kind of blanket granting was ever done, and it's equally clear from the record why it was done. It was a unique situation demanding they act because if they didn't some freed slaves would not be free. I agree with that 100%. I don't see anywhere in this case anyone was trying to deceive anyone. The Congress was clear; they left a written record of their concerns and intent; their actions bear them out, and are consistent with stated goals and concerns. In short, no deception, so the only duplicity comes from the situation being different than any other, and that "duplicity" is an honest one, not one meant to deceive or carry out any kind of evil. Plain understanding and nuanced applications are present throughout our entire history, including the days of the founders. There is no law that anyone can craft that someone, someday, might not come along and claim that because of X, Y, or Z the application of this law should be different. NO government on earth every enjoyed such rigid understanding except those of despots and dictators who seized all understanding and applications unto themselves. Do you really think the Founders believed the entire populace, including those who couldn't even read, fully understood all of the Constitution and the other laws they legislated? Why would a simple farmer in Vermont give a hoot about some federal banking regulation, for example? Because of several reasons. One, we used to have borders and people in place to enforce laws that went to insuring the only immigrants were legal ones. Two, when we discovered someone here ILlegally, we used to send them back instead of making sure they're signed up for an Obamaphone. Three, we didn't hand out lucrative benefits like free medical care, free housing, food stamps, and free education including 4 years of college to people breaking into our nation solely for the purpose of having a child here as a lynchpin to obtaining all those benefits. Now, we do. So we are not in a James Madison or Thomas Jefferson scenario here. I believe those two would have demanded the immediate arrest for TREASON should any elected official dare to refuse to follow the law, particularly federal law. But they aren't around any more, and we live in world where, as you even agree, we cannot trust elected officials to truly represent our interest or live within the limits of their granted powers. What I believe for this issue are a few possible solutions. One, amend the Constitution. Not likely to happen, and if it did, my immediate concern would be what would restrain the people amending it from shaping it in a way I don't desire? No good answer there. Second, state Constitutional Convention. Also not likely since we don't have enough state legislatures prepared to act. Third, evaporate the gravy train of handouts, putting in place firm, limited application that demands one to get on the path of citizenship or be gone. Not very likely to happen because taking anything away costs votes and no politician wants to be cast as starving children or abandoning mothers. Fourth, and what I see as most likely to happen and with the best chance of success, is to do as the Congress of 1868 did and codify into law the limitations of jurisdiction. I think it's perfectly legal, as it's been done before and has never been challenged in the courts. The courts enforced the law as written, which also tends to lend credence to the notion that it IS constitutional. I think it has the best chance of success because we do have enough votes to pass it, and it doesn't take as long as either of the other two possible ways. I also think it represents what most of our citizens want, and that is a nation with borders willing to welcome and even help anyone who wants to come here, so long as they do it legally. What is the purpose of the US Code, anyway? Why do we need any laws there at all rather than simply put them all in the Constitution? I think maybe it's perfectly okay to put a law there instead of the Constitution when we need clarification on something and that doesn't oppose the Constitution. And maybe from that Code, reference other regulations or administrative rules necessary to function in our world. How close can we fly to a busy commercial airport in a private plane, at what altitude, using what communications and so forth in order to preserve, as best we can, the safety of everyone involved while not violating their constitutional rights? We can't expect the Founders to even have an opinion on something like that since the technologies involved weren't even imagined then. The best we can do is try to stay true to their principles and their intent, which is clear and isn't something that changes with time. Their goal was for us to be as free as possible and, where we had need for government to control some aspect of our lives, that control be as less intrusive and as less restrictive as possible. Those aren't ideals totally lost to the advent of technologies. In the same way, situations change like technologies do. You can't find anyone sneaking across the western border of colonial Pennsylvania in order to have an anchor baby because there were only native Americans there to do it, they didn't want it, and they weren't going to get massive freebies if they did. But times change and now we are confronted with a situation not extant in the days of Ben Franklin, and we have to deal with it. As stated, there are a number of possible ways, two involve changing the Constitution, but I don't believe those are the exclusive ways in this situation because we have historical proof of a law, made to supplement not oppose the Constitution, and it was enforced and never opposed by the courts. That's all we need.
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Post by Grug - American Neanderthal on Oct 2, 2015 18:42:46 GMT -7
Funny I was kind of thinking the same about you, on one hand they should use law like we have for the last century or so, on the other not in this case.
Yes you did, but what you did not further find is why we have the law practiced as now, the court has said the law as applied by those who wrote it was unconstitutional by the every amendment they also crated, the parsing of jurisdiction did not meet jurisprudence, and ALL MEANS ALL.
From Wiki- "The Citizenship Clause of the Fourteenth Amendment to the United States Constitution indicates that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The Supreme Court of the United States affirmed in United States v. Wong Kim Ark, 169 U.S. 649 (1898), that the Fourteenth Amendment guarantees citizenship for nearly all individuals born in the country, regardless of their parents' citizenship or immigration status." Because of the way they couched jurisdiction it really was subjective, and the court disagreed with what ever their intent vs the constitution and it was struck.
Yeah they were, it was not solved for them as they wanted a uniform law that settled the issue of their citizenship vs alien status among the states. And the difference between the founders and the reconstructionists is the founders did not make a wink and nod amendments to which they could apply their personal inclination in law later, they made the constitution to be supreme in both word and intent and if they wanted the power to have legislation define or regulate, they gave expressed power to do so. Granted the reconstructionists had a tough job in what they were trying to do, but I think they intentionally did it that way not because they saw it as proper, but because they could get away with it and keep enough coalition of votes to get it passed. The problem for them was a flawed premise that unlike the militia thing which the founders were using to be inclusive of nearly everyone they thought able, the writers of the 14th were apparently seeking to limit the scope of ALL persons despite using that language. Where they tried to couch limitation under supportive clause of under jurisdiction which was not used that way until then, the 2nd amendment clearly states the right of the people shall not be infringed, the the right not being dependent on the supportive clause as it was in the 14th according to evidence of their intent. It was a mistake if they sought to use the constitution as worded as authority to deny certain persons, its not just my opinion or new, its been the legal status for over a century now. There is no correlation to the militia act and the naturalization law they passed. The 1st militia act was not about defining the militia to exclude anyone from owing arms, it was not even a question in the issue, it was calling forth the militia to suppress a rebellion and defining who was fit to be of service in it.
So in that I see any new legislation as no fix, for one you have to pass it and then have it survive a challenge not only in wording of the amendment itself, but precedent of the court striking the very same law. It will be no easier or quicker than just amending the thing.
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Post by HiTemp on Oct 3, 2015 7:46:37 GMT -7
May I humbly suggest, in light of all the facts brought forth on both sides within this discussion, to go read the actual decision in the Wong Kim Ark case. Have lots of coffee on hand because it's a sleeper. There you will see one of the most ridiculous and circular arguments ever presented by the SCOTUS with possible exception of majority opinions expressed by Justice Breyer.
Here's my "in a nutshell" version of it:
The court declared that in order to determine what "under jurisdiction" meant, since the US had no "common law," we had to rely on the common law of England. So, they used English law to provide that definition despite the English common law being directly and repeatedly rejected by the Founders specifically as it regarded automatic citizenship based on birth geography because such citizenship came with a forced allegiance to the monarch whether the person wanted it or not. This is fundamentally wrong because 1)the Founders and the 37th Congress were well aware of English common law and both rejected it, and 2)ever since 1775 the naturalization process not only required an expressed allegiance TO the US, but also a statement flatly rejecting or disassociating any allegiance to a foreign government. By the very fact the Founders required this, they departed vigorously from English common law because there disassociation from being a subject of the King wasn't possible, no matter if one wished to or not. In other words, if you passed through England or its colonies and had a child born there, that child is by English common law a British subject and if Britain wanted the service of that subject, they could go anywhere in the world and had the force of law to take that child into custody and return them to England for service to the crown.
That is NOT what the Founders stood for in any way, shape, or form. They flat rejected that idea, so to appeal to it for answers and definitions in a legal matter was erroneously applying a legal system that we deliberately didn't use to our own. In many of the SCOTUS decisions in which Constitutional powers are eroded or supplicated, this a common theme - this is how they do it in Europe, etc. - and is how our rights end up something unrecognizable compared to the Constitution.
The court uses a slew of laws against Chinese and Mongolian people, that were subsequently overturned, as some sort of basis to "back-track" the error of unfair discriminatory laws all the way up to and including the 14th Amendment - IF - the jurisdiction clause is read to apply to anyone outside Indians not taxed. And please note here that said non-taxed Indians were not identified in the Amendment but in the US Code AND in the Civil Rights Act produced by the 37th Congress BEFORE the 14th Amendment. The SCOTUS took that to mean the 37th Congress made a civil rights law, and then, thinking themselves in error, somehow clarified or resolved the error in the Amendment. The Court did not even allow the possibility that the same people, of same mind, produced a total of seven products including the civil rights law, the Amendment, and 5 changes to the US Code that were all consistent with one another, could not have had in mind the notion that all 7 products worked in concert. Which, btw, they do.
The other fundamental error they made is neglecting the impact of their own reasoning on US citizens born abroad to parents who are US citizens. If what the majority held is true, then we cannot possibly grant birthright to anyone born abroad because those who own that soil control it - just as the Court says the US does in the case of foreign parents. The Chief Justice dissented and in his dissent he explains it in detail how this cannot work both ways. How, for instance, can China grant citizenship to a child of Chinese parents born in the US if the US is using it's claim to the land to grant citizenship to the child? What you have, in essence, is the King of England citizenship system, where citizenship is forced upon someone whether they want it, whether their parents want it, or not; whether they are willing subjects of a foreign nation or not.
So what we have post-Ark is the same system King George III had. You're a citizen of the US whether you like it or not and are a forced subject of the United States if you are born here with no regard to your wishes or your allegiance or your government's policy on citizenship. Sound like anything you ever heard uttered by a Founder? I wonder why the 37th Congress didn't word it that way in their Amendment. Seems like it would have been a lot clearer to say it that way if the SCOTUS is right in the Ark case.
That having been said, I do not dispute the decision of the court is the law of the land. But, as you have often stated, just because the court said it is does not make it right and doesn't mean it cannot be fixed by subsequent legislative process. I feel that same way about this decision in Wong Kim Ark, who was essentially an Anchor Baby. Maybe a question the court should have asked is, why did his parents live in San Francisco for so many years without applying for citizenship if they desired birthrights for their son? The naturalization process would have made this a non-issue, just as it would today if people followed the law instead of breaking it.
I worded that poorly. What I meant by solved for them was, there was not an argument among them about the issue of freedom for slaves, they all wanted that, but there was a need for them to act because of the differing state laws. Bad choice of words on my part. To be clearer, they wanted the slaves to be free no matter where they went; they had to also resolve the question of citizenship which, according to the Ark SCOTUS decision they did not because every second generation and beyond slave was automatically a citizen by birthright. If the SCOTUS is right, why on Earth would they have made the Amendment because they could have just relied on the same legal reasoning as the SCOTUS - English common law, but we know for fact the Founders rejected that idea outright. So did the 37th Congress, that's why they made it and that's why they made the Civil Rights Act, because they saw the need to specify it, being that they viewed it differently than English common law and therefore different than SCOTUS.
You may have a point there, but there is zero chance of the Amendment process happening. It definitely won't happen by State Convention process, and there is no one in this Congress even talking about it. So assuming that an Amendment process isn't possible, how do you propose it get fixed? Me, I'd rather try and pass the law where there is some chance of it and and the legislature has the power to set a court straight on constitutionality by addressing it in the wording of the law. By clarifying what the jurisdiction clause means in the law they remove the court's grasping at English common law to settle the matter.
Congress has the power to tax. They do that via tax laws AND by referring in those laws to administrative law which comes from IRS internal decisions. So you could say that congress "sub-contracts" it out to the IRS. You won't find that anywhere in the Constitution, you only find that congress itself has the power to tax. If it were not for legislative process being able to carve out the specifics of a constitutional power the legislature would have to amend the Constitution every time tax law changes. But they don't. Why is that so unthinkable when it comes to who ought/ought not to fall under the jurisdiction clause?
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Post by Grug - American Neanderthal on Oct 5, 2015 8:21:33 GMT -7
I find a lot of court rulings to be that way, but they end up as law, which it is. I don't believe there is legislative process that will make a solution for this, and this ruling is exactly why. The constitution needs amended so there can be no ambiguation of terms.
If we are going to talk about the reality of changing it by any avenue, its that neither of our arguments are going to be acted on, there is no chance in hell of any legislation getting through much less be signed now, or I suspect when we get a new president either. The democrat party will fight that to the death, they will litigate it, most likely getting any act stayed until its resolved in court, and pushed so far in the future it will not matter anyway.
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Post by HiTemp on Oct 5, 2015 10:38:51 GMT -7
Which is why I think if they took all the candy off the shelf, the problem would go away no matter what the birthright law is. I'm also really tired of politicians who won't fight because they think they'll lose on an issue or lose on a vote. Is that what the single payer Obamacare people did, even when Hillarycare burnt up in flames? Nope, they kept proposing it and trying to force amendments to bills until they got enough steam and enough momentum to get it done. Same with gay marriage. Same with employers insurance required to pay for contraception/abortions.
Just once I'd like to see our side put issues on the table and force a vote. That way we know how these slimy weasels in DC stand instead of having them say one thing while home in the town hall, then do another thing when they're 1200 miles away in Washington. The NRA keeps a score system of politicians, and it's pretty close to the system I use to track my three nitwits. When these issues aren't forced onto the table, we have no way to come back on these Senators and Reps who SAY they stand for X, but whose actions don't balance with those words.
So win or not, introduce the bill and force it to be killed or voted on. R's hold the committee chairs in both houses so it's going to be one of them accountable to us.
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Post by Grug - American Neanderthal on Oct 5, 2015 19:12:00 GMT -7
Just how accountable is the problem, we had our back sliding senator up fro reelection, and who got back in overwhelmingly despite introducing new internet tax and voting for all the spending "because we just cant shut the govt down". Makes me wonder if we can't get that done in a solid deep red state, how will we ever get it down in states who are much less so.
I used to be opposed, but now I like the idea of term limits. We have got to break the career poltician cartel.
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Post by HiTemp on Oct 6, 2015 5:57:10 GMT -7
We have term limits on our state legislators and executive and it works just fine. There is much less wandering from the reservation on key issues though the influence thing is still pretty strong. I think that's because many of them are influential people to begin with before holding office. They're the kind of folks with lots of clout locally and that only tends to expand when taking state office. With the limits, though, the influence thing only goes so far and doesn't rise nearly to the kingdoms established by some of our national leaders.
What do you figure the chances of that ever getting changed? .000000001 to 1 maybe?
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Post by Grug - American Neanderthal on Oct 8, 2015 7:49:19 GMT -7
About the same chance as tying their salary to national median secretarial wage, or forcing them to use medicaid limits and rules in their healthcare or insider trading law, or about any other thing they foist on the public that they don't abide by.
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Post by HiTemp on Oct 9, 2015 6:05:11 GMT -7
Yeah, apparently about the same odds as finding a Speaker.
You know it's bad when House members are running around with shirts saying "I'm not the Speaker."
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Post by Grug - American Neanderthal on Oct 9, 2015 6:42:39 GMT -7
This is what happens when you try and freeze out a significant block of constituency. Boehner and his cohorts in the party tried to freeze out the teaparty, punished them in fact, they formed a caucus and now have enough to both force him out and stop his hand picked replacement. They do not have enough support to get their guy in, but now they will have to be at the table and agree to who ever makes it. The down side to that is Boehner stays in the mean time, and has nothing to lose now.
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Post by HiTemp on Oct 9, 2015 19:10:13 GMT -7
Well he isn't going to stay another year I don't think. In some ways it might be an advantage to NOT have a Speaker because someone else is going to have to schedule the votes and maybe that will be decided by some ad hoc R committee. Maybe more will get done.
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Post by Grug - American Neanderthal on Oct 10, 2015 6:05:05 GMT -7
No, but he will probably be here through the next budget bill. I don't see the crisis some are trying to make this out to be. Its just reflecting how the people feel about current leadership. I think the people who are panicking over this most are the democrats and the GOP who are aligned with them, the yes man is leaving, and they may actually have to face an opposition for a change.
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