14th Amendment

[William R]

Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S.

http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution

I'm afraid Judge Nap is not very informed on this topic. Or Fox News is pressuring him

 

[Voluntarist]

xxxxx

 

[William R]

Nice of National Review to spin the reading of the statement by placing an "[or]" where it would reinforce their interpretation. Unfortunately for National Review, it isn't up to them to interpret the Constitution and it's amendments. That falls to the bureaucratic institution we know as the Supreme Court; and it ruled on it in 1898 - and interpreted it contrary to National Review's intrepretation. The Justices (being 117 years closer to the writing of the amendment, and the culture of the day it was written and passed, than are National Review today) effectively took it to read:
"foreigners, [pause] aliens, who belong to the families of ambassadors or foreign ministers"

Of course they also took into account exchanges between other senators; such as the following which immediately followed Senator Howard's:

Did either Senator write the Amendment?? No! Did California have any Native Americans?? Yes! Even though California had thousands o Native Americans who were born on American soil they did not become American citizens until Congress acted in 1924 I do believe. "All persons born or naturalized in the United States are citizens." If that's what the author of the Amendment meant , everyone born here is a citizen then it would have stopped right there. But it doesn't stop there.



Article 1 Section 8 Clause 4

The Congress Shall Have Power To Establish an Uniform Rule of Naturalization.


This is not even close. A woman who runs across the border drops a kid should be sent back with her child. End of story

 

[Voluntarist]

xxxxx

 

[OReich]

Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S.

http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution

I'm afraid Judge Nap is not very informed on this topic. Or Fox News is pressuring him

No, jurisdiction means subject to American laws or courts. That's what it means. I think you're misinterpreting their use of the word "allegiance" here. Almost all Indians were in Indian territories where US law did not apply. If an Indian in an Indian territory committed a crime, no US court could exercise jurisdiction over them. If an ambassador commits a crime, (I'm pretty sure) no US court can exercise jurisdiction over them, we could just expel them. The issue isn't that diplomats and Indians had separate allegiances, its that a US court literally could not exercise jurisdiction over them, "allegiance" was just their way of describing it. Indians were in Indian territory, they had allegiance to their own governments per our treaties with them, Indian law and jurisdiction applies to the Indians, not US law and jurisdiction. Are you saying a US court cannot exercise jurisdiction over an illegal immigrant and expel them?

 

[William R]

No, jurisdiction means subject to American laws or courts. That's what it means. I think you're misinterpreting their use of the word "allegiance" here. Almost all Indians were in Indian territories where US law did not apply. If an Indian in an Indian territory committed a crime, no US court could exercise jurisdiction over them. If an ambassador commits a crime, (I'm pretty sure) no US court can exercise jurisdiction over them, we could just expel them. The issue isn't that diplomats and Indians had separate allegiances, its that a US court literally could not exercise jurisdiction over them, "allegiance" was just their way of describing it. Indians were in Indian territory, they had allegiance to their own governments per our treaties with them, Indian law and jurisdiction applies to the Indians, not US law and jurisdiction. Are you saying a US court cannot exercise jurisdiction over an illegal immigrant and expel them?

Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.

The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens.”


John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.

Read more at: http://www.nationalreview.com/artic...ip-reform-it-without-repealing-14th-amendment

 

[OReich]

Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.

The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens.”


John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.

Read more at: http://www.nationalreview.com/artic...ip-reform-it-without-repealing-14th-amendment

I answered this in the identical thread, I'll just repeat the fact that your concept of "full and complete" jurisdiction or "complete, political jurisdiction" is 100% made up, it appears no where on the planet, and it also doesn't appear in the 14th amendment. Jurisdiction is the power of the court to enforce laws over a person. That's it. Not the power to draft, not the power to prosecute for specifically treason, it has nothing to do with voting at all (women couldn't vote at all and were still totally under our jurisdiction). Your categories of "partial, territorial jurisdiction" and "complete, political jurisdiction" are entirely invented and have nothing to do with the law. You're just making up your own definition of jurisdiction. I don't mean to condescend at all, because you make a great, honest argument about a really stupid loophole in the constitution, but jurisdiction is what it is, its the power of the state to enforce its laws over a person, that's it.

 

[William R]

I answered this in the identical thread, I'll just repeat the fact that your concept of "full and complete" jurisdiction or "complete, political jurisdiction" is 100% made up, it appears no where on the planet, and it also doesn't appear in the 14th amendment. Jurisdiction is the power of the court to enforce laws over a person. That's it. Not the power to draft, not the power to prosecute for specifically treason, it has nothing to do with voting at all (women couldn't vote at all and were still totally under our jurisdiction). Your categories of "partial, territorial jurisdiction" and "complete, political jurisdiction" are entirely invented and have nothing to do with the law. You're just making up your own definition of jurisdiction. I don't mean to condescend at all, because you make a great, honest argument about a really stupid loophole in the constitution, but jurisdiction is what it is, its the power of the state to enforce its laws over a person, that's it.

That's not political jurisdiction or allegiance. Sorry, but that's what the 14th amendment is about. You have no argument.

 

[OReich]

That's not political jurisdiction or allegiance. Sorry, but that's what the 14th amendment is about. You have no argument.

Wtf is political jurisdiction? Not only is that not in the US constitution, its not ANYWHERE, you made it up. I'm talking about the constitution, you're talking about something you made up. Jurisdiction is the power of a state to exercise its laws over a person, period. You have no response to this argument other than to completely invent legal concepts that have no history of precedent whatsoever. There is no such thing as "partial territorial jurisdiction," "complete, political jurisdiction" or "full and complete jurisdiction." There's just jurisdiction. To handle a case or dispute, a court needs territorial jurisdiction (jurisdiction over the physical area where it took place) AND personal jurisdiction (jurisdiction over the person, based on physical presence in the court's area of territorial jurisdiction), AND constitutionally or statutorily granted jurisdiction over the type of law or dispute being handles (like an immigration court has jurisdiction over immigrant matters, a criminal court has jurisdiction over criminal law, etc.) Those three dimensions add up to jurisdiction, there is no "partial" jurisdiction.

You can keep talking about your "political jurisdiction" and "allegiance" all you want, but those are your inventions only, and have nothing to do with the legal concept of jurisdiction. Really, where did you read about "political jurisdiction?" Provide a source. Did you read about these terms you're using here, or are you just inventing it yourself?

 

[William R]

Wtf is political jurisdiction? Not only is that not in the US constitution, its not ANYWHERE, you made it up. I'm talking about the constitution, you're talking about something you made up. Jurisdiction is the power of a state to exercise its laws over a person, period. You have no response to this argument other than to completely invent legal concepts that have no history of precedent whatsoever. There is no such thing as "partial territorial jurisdiction," "complete, political jurisdiction" or "full and complete jurisdiction." There's just jurisdiction. To handle a case or dispute, a court needs territorial jurisdiction (jurisdiction over the physical area where it took place) AND personal jurisdiction (jurisdiction over the person, based on physical presence in the court's area of territorial jurisdiction), AND constitutionally or statutorily granted jurisdiction over the type of law or dispute being handles (like an immigration court has jurisdiction over immigrant matters, a criminal court has jurisdiction over criminal law, etc.) Those three dimensions add up to jurisdiction, there is no "partial" jurisdiction.

You can keep talking about your "political jurisdiction" and "allegiance" all you want, but those are your inventions only, and have nothing to do with the legal concept of jurisdiction. Really, where did you read about "political jurisdiction?" Provide a source. Did you read about these terms you're using here, or are you just inventing it yourself?

The record of the debate in 1866 is illuminating. When Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment) was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” (Emphasis added.) Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted into the armed forces of the United States, or prosecuted for treason if they take up arms against it.

Senator Howard agreed with Trumbull’s explanation, saying:

I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, . . . ; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (that is, to resident aliens).

 

[William R]

The record of the debate in 1866 is illuminating. When Senator Lyman Trumbull (D-IL), Chairman of the Judiciary Committee (and a key figure in the drafting and adoption of the 14th Amendment) was asked what the phrase “and subject to the jurisdiction thereof” meant, he responded: “That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” (Emphasis added.) Only U.S. citizens owe “complete allegiance” to the United States. Everyone present in the United States is subject to its laws (and hence its “jurisdiction” in a general sense), but only citizens can be drafted into the armed forces of the United States, or prosecuted for treason if they take up arms against it.

Senator Howard agreed with Trumbull’s explanation, saying:

I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, . . . ; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

This exchange supports very strongly the conclusion that the Citizenship Clause was intended to mean the same as the Civil Rights Act of 1866—excluding children born in the United States to foreign nationals (that is, to resident aliens).

Not owing allegiance to anyone else. That is what it means

Dual citizenship should be ended in this country. Jorge Ramos a dual citizen but make no mistake his first loyalty is to Mexico.

 

[Voluntarist]

xxxxx

 

[William R]

... so, since women cannot be drafted, they are not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment?

Up till August 18, 1920 women couldn't even vote Women did serve in all our wars though. They made great spies

http://www.smithsonianmag.com/history/women-spies-of-the-civil-war-162202679/?no-ist

 

[RonPaulGeorge&Ringo]

Women, particularly landholding widows, could vote going all the way back to the colonial times. It was just a decision to be made by state law rather than a federal mandate that sex not be a reason to keep someone from the franchise.

 

[Voluntarist]

xxxxx

 

[William R]

That would still imply, by the standard set by National Review (can't be drafted), that women were not under the jurisdiction of the United States - neither before nor after 18AUG1920. And let us not forget about men younger than the minimum draft age nor older than the maximum draft age - they also would not be under the jurisdiction of the United States.


Which, I suppose, is wonderful for the United States, but it was done on a voluntary basis rather than through edict of law as in a draft. It really has no bearing on your appeal to the military draft as a basis of being under the jurisdiction of the United States. Applying that basis universally, for instance, would imply that anyone capable of being a great spy could claim to be under the jurisdiction of the United States. Likewise, if a woman was not a great spy, then she would not be under the jurisdiction of the United States.

The people within the United States who are not under the jurisdiction is the same now as it was at the time teh 14th was debated and passed - namely diplomatic contingents from foreign nations. There was one other difference between then and now and that related to the "Indian Nations"; indpendent nations within the US borders. You could draw a similarity between the Indians then and the illegal immigrants of today if the illegals of today had territories within the borders of the United States which were recognized by treaty between them and the United States.

Just curious: have you read the Congressional proceedings on the matter or only the digested (read: spun) excerpts that places like National Review provide?

I'm not spinning anything. Just providing historical facts. The 14 amendment was about one thing and one thing only. Freed slaves.

 

[Voluntarist]

xxxxx

 

[William R]

If you're getting your "facts" from National Review then your regurgitating their spin. Read through the Congressional transcripts regarding the civil rights act and the amendment (which codified the civil rights act into a form that was more difficult to rescind). And go through the 1898 Supreme Court decision.


Not so. Only two sections dealt with freed slaves, and the congressional debate over both of those sections dealth not just with conferring rights upon freed slaves, but of denying those rights to Native Americans while maintaining the status quo for everyone else. And as debate between Trumbull and Cowan demonstrates, the status quo consisted of birthright citizenship.



... which is precisely what the Supreme Court held to be the case in 1898.

During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”[1]

Senator Howard also made clear that simply being born in the U.S. was not enough to be a citizen when he opposed an amendment to specifically exclude Native Americans from the Citizenship Clause. He said, “Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”

Notice the reasoning deployed, Native Americans maintain their tribal relations so they are not “subject to the jurisdiction thereof.” Senator Edgar Cowan said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power

 

[OReich]

During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”[1]

Senator Howard also made clear that simply being born in the U.S. was not enough to be a citizen when he opposed an amendment to specifically exclude Native Americans from the Citizenship Clause. He said, “Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”

Notice the reasoning deployed, Native Americans maintain their tribal relations so they are not “subject to the jurisdiction thereof.” Senator Edgar Cowan said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power

Okay, you may have a pt when it comes to their comments on foreigners, but the comments about Indians have nothing whatsoever to do with foreigners or illegal foreigners. When they spoke about Indians, they weren't talking about Indians comingling with Americans in American cities and states, they were talking about Indians who were literally in Indian territories with separate laws and courts, thus they weren't under US jurisdiction, they were like an occupied territory of the US. So "Indians" didn't mean ppl walking around who we didn't have jurisdiction over simply because they're from a foreign land, they were specifically referring to Indians in Indian territory, not under US laws or governance. The Indian analogy does not apply at all to foreigners. A Chinese person living in California, thus being governed by US law and under US jurisdiction, is NOT analogous to an Indian in Indian territories who were governed by Indian laws and under Indian jurisdiction. Its two totally different situations.

And this is why I'm worried that all these quotes in general are about Indians, that's clearly the context around all of this. Again, you cannot draw a connection between the Indians that were all in Indian territory, and a Chinese person living in California under US laws. The Indian in Indian territory is literally not under our jurisdiction. The Indian wasn't simply from some foreign land, nor did thy just have some other citizenship, they were literally governed by Indian laws and courts, NOT US laws and courts. That is clearly what they're talking about there. You're ignoring the context around these statements, Indians were not foreigners walking around US cities, they were in their own territories with their own jurisdiction based on treaties.

 

[erowe1]

I'm afraid Judge Nap is not very informed on this topic. Or Fox News is pressuring him

I've noticed before that Napolitano is not much of an expert on the Constitution and also tends toward a living document view of it. But what exactly did he say about the 14th Amendment? Do you have a quote?