Napolitano does not believe in a living constitution, we shouldn't use that word as a catch-all for anything we disagree with. I have some 'unusual' views about the constitution that don't conform to the liberty movement or to the usual constitutional argument; for instance, I think gender equality and therefore gay marriage is guaranteed under the 14th amendment. I could be wrong, its an ambiguous issue, but that doesn't mean I believe in a living constitution, it means that's my interpretation of the constitution. Its not some bullshit fantasy where I insert my views like liberals and neocons. Napolitano is a genius and he's honest; if he disagrees with all other strict constructionists/originalists on some issue, its not because he's just reading w/e he wants into the constitution, its because the constitution is legitimately ambiguous at times.
14th Amendment
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Napolitano does not believe in a living constitution, we shouldn't use that word as a catch-all for anything we disagree with. I have some 'unusual' views about the constitution that don't conform to the liberty movement or to the usual constitutional argument; for instance, I think gender equality and therefore gay marriage is guaranteed under the 14th amendment. I could be wrong, its an ambiguous issue, but that doesn't mean I believe in a living constitution, it means that's my interpretation of the constitution. Its not some bullshit fantasy where I insert my views like liberals and neocons. Napolitano is a genius and he's honest; if he disagrees with all other strict constructionists/originalists on some issue, its not because he's just reading w/e he wants into the constitution, its because the constitution is legitimately ambiguous at times.
erowe1
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I don't use it that way.
Then what did Napolitano say that makes him believe in a living constitution?
Voluntarist
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erowe1
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Various things over the years that I've noticed. For example, he claims that the exclusionary rule and the requirement to read Miranda rights are in the Constitution. They're only there because some court legislated them from the bench. In some of his stuff on the PATRIOT Act I've seen him make claims about something being in the Constitution that's flat out not there, like saying that the 4th Amendment says that only judges can issue warrants, for example.
I also don't see why you call him a genius. He's never struck me as one. He's a TV personality first and foremost.
First of all, I disagree with the exclusionary rule being in the constitution (though its a great policy), but Napolitano's belief in is still not living constitutonalism, its not some "changing with the times, things were different back then" bullshit. Its a very rational legal argument: before the exclusionary rule we had no right against unreasonable searches and seizures, the 4th amendment right against unreasonable searches and seizures was dead text on a page. Cops were arresting and searching ppl left and right with zero limits or impediment or consequences. When you see a rule as important as this being totally ignored, its rational for a judge to impose some kind of penalty in order to enforce it, and this was literally the only thing they could come up with. I don't agree with this, but its not some dishonest "oh, but things were different back then, so I'm going to insert some rule that I want here, and I'll say that its the modern equivalent of what the drafters were thinking." The exclusionary rule was a cure for 200 yrs of ignoring the search and seizure rule, and it is right now the only reason a cop cannot break down your door and arrest you for no reason. It adds real meaning and enforcement to what was previously a dead rule. There's a difference between being wrong, and living constitutionalism. The exclusionary rule isn't just some policy that ppl want that has no basis in the constitution, its the only reason we have an actual, real right against unreasonable searches and seizures.
And Napolitano is correct that only a judge can issue a warrant, that's part of the definition of a warrant, the constitution doesn't need to spell this out. The whole pt of a warrant is that its an "order" to arrest or search someone, though in practice its actually permission being granted to arrest or search someone. If someone other than a judge could issue a warrant, it would be absurd and meaningless. It would be like a mayor or a cop saying "I'd like to arrest this man, and I hereby issue a warrant to myself to do it." The whole pt of a warrant is checks and balances. If any govt officer other than a judge could issue a warrant, then it wouldn't be a warrant, it would just be a government officer arresting someone without any oversight whatsoever.
Just to be clear, living constitutionalism is the belief that the constitution's meaning changes with the times, or at least that's what its adherents say. In practice, its an excuse to insert w/e policy you want, by lying that your personal policy position is somehow the objective, modern equivalent of the constitution, which is stupid for 80 different reasons. However wrong Napolitano is about the exclusionary rule, its not living constitutionalism. Ppl who believe in the exclusionary rule would also insist that it should have been the rule 200 yrs ago, not that its some modern update to the constitution. This is a big deal to me, because its the difference between saying "Napolitano is wrong" and "Napolitano is a progressive socialist who shits on the constitution and pretends that it says w/e he wants it to say." Adding teeth to the search and seizure rule isn't ruining the constitution and replacing it with w/e political system you want, its an honest attempt to enforce the constitution, it just happens to be the wrong way to do it. Its some other incorrect constitutional philosophy, "make up an enforcement mechanism"-ism, but its not living constitutionalism.
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ga anderson
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I may be misunderstanding your response as applying to the exact phrasing of "...full and complete" jurisdiction or "complete, political jurisdiction..." so this addition may not be applicable, but....
Yes, such definitions and explanations of the jurisdiction phrase have occurred. Several times in SCOTUS statements. Here is just one from the 1884 Elk v. Wilkins case when the Court defined the jurisdictional requirement of the Citizenship Clause as requiring a person to be:
“…not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." (you can find this in the records of the Elk v. Wilkins case, 112 U.S. 102)
Similar phrasing was seen again in the 1898 Wong Kim Ark case where as part of the dissenting opinion the following court writing was offered:
“To be ‘completely subject’ to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government."
Although not a declaration that this was the court's definition, it was a response to that written qualifier of a definition.
Your acceptance that "...Jurisdiction is the power of the court to enforce laws over a person." Is merely an opinion, (although a shared one), not a legal finality. At this point in time there is as much fodder for one definition as there is for the other.
Multiple SCOTUS writings, in both majority and minority opinions have been presented as proof of one position or the other, with the Wong Kim Ark case being cited as the most unambiguous. But... the Wong Kim Ark case was a 5-4 split court, and the dissenting opinions were scathing in their forcefulness that the majority decision was an incorrect one.
Declaring your accepted definition to be the only correct one is a risky position to take.
Of course if it is the "100%" in the phrase you deny exists... then there may be some more reading to do.
GA
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ga anderson
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Greetings Voluntarist,
I think you will find that the 14th Amendment was not all about Indians, (although the SCOTUS case Elk v. Wilkins was all about Indians), the documented impetus for the 14th Amendment was all about... Freed Slaves, (or Black Freemen if you prefer)
Just sayin'
GA
I think you will find that the 14th Amendment was not all about Indians, (although the SCOTUS case Elk v. Wilkins was all about Indians), the documented impetus for the 14th Amendment was all about... Freed Slaves, (or Black Freemen if you prefer)
Just sayin'
GA
So you're not interpreting the constitution based on its text. The rule is the rule. Are you saying that the 2nd amendment only protects muskets, or that the 1st amendment only protects ideas ppl had back then? The 14th amendment says anyone born under US jurisdiction is a US citizen. The text is not ambiguous. And it is NOT my opinion that jurisdiction is the power of a court to hear a case over a legal dispute, that is the definition of jurisdiction. The issues are whether we only have "partial jurisdiction" over foreigners (and illegal foreigners specifically), and then whether such "partial jurisdiction" would not satisfy the "under US jurisdiction" language in the 14th amendment. Even if we only have partial jurisdiction, that's still jurisdiction. If they wanted the rule to require "full complete jurisdiction" (if "full and complete jurisdiction" and "partial jurisdiction" are even actual legal concepts), they would have said so. They simply said "under US jurisdiction.
And I'm not saying "under US jurisdiction" has no meaning, it has a very clear purpose: to include soldiers and diplomats abroad, and to exclude Indians (since they were in Indian territories, under Indian jurisdiction per treaties), diplomats, and foreign soldiers (belligerent or not).
And again, you cannot use a case thats about Indians, or quotes from Senators talking about Indians, and turn that into an empirical rule about illegal immigrants. Indians were in Indian territory with their own laws, their govts had jurisdiction over Indians, not the US govt. Whereas if a Chinese immigrant, legal or illegal, is walking around California, they are under US jurisdiction. Unless they happen to be in an Indian territory; then they would be under Indian jurisdiction, per our treaties with said Indians.
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Voluntarist
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ga anderson
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Hello again Voluntarists,
First - Perhaps I misunderstood your intended meaning regarding the Indians reference. You said:
"OReich laid out what the language was all about ... Indians"
It certainly appears you referenced another persons comment; "OReich laid out what the language was all about..." - and then supplied your answer -
"... Indians"
As for your reading question;
No I have not read the entirety of the Congressional Globe regarding the 14th Amendment, but I have read much of it relative to the debated points, (both the Does and the Does not camps), concerning the Amendments intention for the use of "jurisdiction." I find valid points for both sides of the discussion, but firmly fall into the camp that says jurisdiction was not intended to mean only the realm of laws and courts.
Yes, I have read the entire Civil Rights Act of 1866. It is not a long document, or one that is difficult to understand.
The first section, the lead-off of the legislation, (which I believe is where typically the heart of most legislation is addressed) gets right to the point about who the Act was intended for:
"That all persons born in the United States and not subject to any foreign power, (my emphasis), excluding Indians not taxed..." - I believe this is relative to the 14th Amendment debate. And it is the only mention of Indians. Specifically Indians that are not addressed by the act.
Then relative to who the act was intended for, we find these qualifiers:
Section 1. "...citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude..."
Section 2. "...having at any time been held in a condition of slavery or involuntary servitude..." and so on. The 9 sections after the first are littered with similar phrasing - all related to freed slaves, (including referencing a Freedmens Bureau), and they all deal with enforcement and authorities for enforcement.
So am a bit surprised you would reference the act as supportive to your position. The wording in the Act does seem to be directed at freed slaves, (and refugees).
And yes, I have also read what I believe to be the entirety of the SCOTUS 1898 Wong Kim Ark case. As this case seems to be foundational for folks that say the 14th Amendment does apply to Anchor Babies. But from my perspective it is a very shaky foundation. I do agree that this case supports your position, but it was a decisively divided decision, (5-4), and the dissenting justices were scathing in their dissenting opinion. I believe that the specifics of the case were so particular to single incident that the court's decision was more one of endorsing an exception than one of general precedence and definition.
As to this:
"One of the clauses dealt with limiting governmental participation by those who had engaged in insurrection.
Another dealt wit recognizing debt from activities involved in quelling the insurrection, while denying debt from activity supporting the insurrection.
But the clause dealing with citizenship and civil rights had to do with granting them to the freed slaves, while denying them to Natice Americans in the Indian Nations , and also maintaining the existing status quo for other categories of people (status quo as understood by those weilding the political power to pass the amendment)."
Here you must referring to the 14th Amendment - and mixing-up your sources. The points about insurrection, rebellion, and related debts, are part of the Amendment, but; "But the clause dealing with citizenship and civil rights had to do with granting them to the freed slaves, while denying them to Natice Americans in the Indian Nations ..." is not in the 14th Amendment, not specifically in the 1866 Civil Rights Act.
Have you read the entirety of those that you asked me about?
However, you did make one point I heartily agree with;
"Would that status quo regarding birthright citizenship have changed if there had been a welfare state at the time? Most probably..."
(Uh, excepting agreement with the "Status quo" part)
GA
Yeah, the Supreme Court Wong Kim Ark case is explicitly inapplicable to illegal immigrants: "Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States."
This doesn't declare that illegal immigrants cannot drop anchor babies, because that wasn't the dispute the court was facing, so they weren't allowed to rule on it. (What matters is the precedent of the ruling, and the words justifying that ruling, any other language about a situation not being ruled upon is just advisory language.) But the court made it extremely clear that they were ONLY talking about legal immigrants in that ruling.
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ga anderson
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Perhaps a little clarity is in order.
I think the 14th Amendment, as written, means exactly what you say it does. I think the "jurisdiction" in the clause should be interpreted just as you say it should.
But, I also think...
The current and correct interpretation of "jurisdiction," (geographical/legal), was not the intended one. I don't think circumstances of the time informed the Amendment's authors that more clarity was needed for the term.
That the primary impetus for the 14th Amendment was the 1866 Civil Rights Act - which was `all about' feed slaves. I think there is ample period record and documentation that this was/is true.
That our Congress does have the authority to codify or make statutory rules regarding the 14th Amendment without needing a Constitutional Amendment.
So there you go. As currently interpreted I think you are right. But I do not think I am wrong because my conversations have not been about current interpretations or any ambiguity in the Amendment. My conversations have been about the end result not being as intended for changing times. As Voluntarist said, had they known anything about a "welfare" state condition that would evolve ahead of them, I believe they certainly would have been more precise in their use of the word jurisdiction. My arguments about historical context and period records are based on the amendment author's statements, and subsequent SCOTUS cases, (which have batted the ball onto both sides of the net).
My point is that although the 14th Amendment does give legal birthright citizenship to Anchor babies - my readings clearly inform me that result was not the author's intent.
I hope you are having as good a day as I am. I enjoy these types of conversations.
GA
Tourist are under our jurisdiction when they're stateside. But they're not under our political jurisdiction. They can't vote, be charged with treason drive on the wrong side of the road etc etc. Same with illegal aliens. That's what the authors of the 14th amendment meantI. No birthright citizenship just because a foreigner drops a kid while they're in the country. Crazy to think otherwise.
Yeah I agree, there are a million unintended consequences in this, especially with entitlements. Its common sense, liberals should be able to see this conflict of values between mass immigration (which I'm not totally oppose to) and entitlements, but if they understood cost/benefit analysis then they wouldn't be liberals.
Okay, you're again talking about "political jurisdiction" even though it does not appear in the fourteenth amendment, you just declare that this is what they meant even though it never says this. You then quote Senators who are talking about Indians, who are a totally different situation. So not only can you not show that the concept of "political jurisdiction" even exists, you also cannot show that this is what the fourteenth amendment refers to, because it does not say that. You take quotes about Indians who were in Indian territory under explicitly separate jurisdiction. When they said "Indians aren't under our jurisdiction because they have separate allegiance," they meant Indians were literally in Indian territory under Indian govt, laws and jurisdiction, and giving their allegiance to that Indian government. They were not talking about foreigners walking around US territory, who were in fact under the jurisdiction of the US.
ga anderson
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William R, I agree with you about what was "meant," but that is not what was written, and until the Amendment is clarified Birthright Citizenship is a Constitutional right.
GA
Zippyjuan
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"Juris" refers to the law- not politics. One does not need to have the right to vote to be subject to the jurisdiction of the United States. Citizenship is required to be able to vote but the inverse is no necessarily true- you can be a citizen but not a voter. If somebody is under your jurisdiction, they must follow your laws.
Ambassadors are not subject to US laws based on international agreements. The Native American tribes were considered under their own laws and were also not considered under US Jurisdiction until the law on that was changed.
Is a tourist or immigrant subject to US laws?
Ambassadors are not subject to US laws based on international agreements. The Native American tribes were considered under their own laws and were also not considered under US Jurisdiction until the law on that was changed.
Is a tourist or immigrant subject to US laws?
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Sorry but that's not what's written. By being in the United States they are subject to our jurisdiction. Our laws. But they're not under our political jurisdiction. That's why they excluded diplomats and indians. Well the same holds true with illegal aliens.
I can't stand the woman but no one makes a better case than Ann Coulter
http://dailycaller.com/2015/08/19/no-the-14th-amendment-doesnt-guarantee-birthright-citizenship/
Judge Richard Posner of the 7th Circuit Court of Appeals is America’s most-cited federal judge — and, by the way, no friend to conservatives. In 2003, he wrote a concurrence simply in order to demand that Congress pass a law to stop “awarding citizenship to everyone born in the United States.”
The purpose of the 14th Amendment, he said, was “to grant citizenship to the recently freed slaves,” adding that “Congress would not be flouting the Constitution” if it passed a law “to put an end to the nonsense.”
The Constitution Still Doesn’t Grant Birthright Citizenship
http://dailycaller.com/2015/08/27/the-constitution-still-doesnt-grant-birthright-citizenship/
ga anderson
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Don't be sorry William R., just show me where in the 14th Amendment it says "political" jurisdiction. Or show me a majority SCOTUS opinion that says that. We could throw authoritative links at each other all day long, but much smarter and more knowledgeable minds than mine, (I would say yours too, but I don't know you), have been at this debate for a long time - and we still have anchor babies.
I agree the 14th intended something else, but it doesn't say something else, and I am doubtful you can produce a more legitimate affirmation of your interpretation than the actual text of the Amendment.
ps. If the Amendment does not say what it appears to say in plain text, then why does your expert "most cited" judge add; "But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship.”?
GA
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Zippyjuan
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Laws always have more impact beyond their initial intent. Courts look at what the law actually says more than what the original intent was. They can take intent into consideration but what is binding is the letter of the law. If the law does not do what it intended, it needs to be re-written or to be abided by as written. Slaves are nowhere mentioned in the amendment. Nor is any other group of people other than to exempt "those not subject to the Jurisdiction of the United States".
