Lindsey Graham: 'Birthright Citizenship Is A Mistake,' 'We Should Change Constitution

[Matt Collins]

Someone should tell him that the 14th Amendment wasn't really ratified

 

[constituent]

Right. You'll notice I bolded that.

Yea, and then tried to say that the children of foreign diplomats not being given birthright citizenship sets a precedent that reinforces your case.

It doesn't.

For now I gotta run, but will likely address the rest of your post later.

Have a good one.

 

[erowe1]

Yea, and then tried to say that the children of foreign diplomats not being given birthright citizenship sets a precedent that reinforces your case.

It doesn't.

It does.

The precedent is that Congress is to legislate what being under US jurisdiction does and does not entail, and to whom it applies. In the case of foreign diplomats there is a complicated set of rules about which laws apply to which kinds of diplomats and staffers and consulars and so on, and which don't. One of the things that doesn't apply to any of them is birthright citizenship. There are other laws that apply to all of them (such as traffic laws), and some that apply to only some of them. This all exists because Congress legislated it as section 5 of the 14th Amendment delegates. In the same way Congress can exempt babies of illegal immigrants from birthright citizenship via legislation. It is up to Congress to define them as not being under US jurisdiction and to delineate what that entails. No new amendment is required.

 

[Stary Hickory]

I agree with this but I hate Graham. Birthright citizenship should be outlawed and immigration controlled. Illegal immigration should is not permit able. Unless you can guarantee that outsiders cannot loot other people using government force you must enforce immigration.

 

[erowe1]

I agree with this but I hate Graham. Birthright citizenship should be outlawed and immigration controlled. Illegal immigration should is not permit able. Unless you can guarantee that outsiders cannot loot other people using government force you must enforce immigration.

Why are outsiders using government force to loot other people any different than insiders using government force to loot people?

It seems that the use of government force to loot people is the problem and whether or not someone is an "outsider" is an irrelevant separate attribute. We might as well point to the fact that people with widows peaks are using government force to loot people and, therefore, people with widows peaks should not be allowed to be in the country.

 

[yokna7]

If Ron Paul didn't support this, I bet people would be going crazy here.

Not true. Our fear/loathing of liabilities in this country is too great. This is not in the Constitution.

 

[constituent]

It does.

The precedent is that Congress is to legislate what being under US jurisdiction does and does not entail, and to whom it applies. In the case of foreign diplomats there is a complicated set of rules about which laws apply to which kinds of diplomats and staffers and consulars and so on, and which don't. One of the things that doesn't apply to any of them is birthright citizenship. There are other laws that apply to all of them (such as traffic laws), and some that apply to only some of them. This all exists because Congress legislated it as section 5 of the 14th Amendment delegates. In the same way Congress can exempt babies of illegal immigrants from birthright citizenship via legislation. It is up to Congress to define them as not being under US jurisdiction and to delineate what that entails. No new amendment is required.

This all exists because Congress legislated it as section 5 of the 14th Amendment delegates. In the same way Congress can exempt babies of illegal immigrants from birthright citizenship via legislation.

Cool, can you link the legislation where Congress stated that the children of foreign diplomats were not eligible for birthright citizenship?


Here is why I still say that it doesn't, and yes an amendment would be required.

Reviewing section 5 I notice that it states, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Congress shall have the power to "enforce" the provisions rather than "define" them as you stated in the first quote above (bolded for emphasis).

Meaning that if a state (or other governmental entity) attempted to deny an individual eligible for birthright citizenship the protections/obligations of that
citizenship, congress could then enact legislation to enforce (as the text suggests) the application of the various provisions in the Amendment.

I don't see a way to legislate around this so long as immigrants are subject to the jurisdiction of fedgov, be that through labor
regulations, immigration regulation, etc.

Which is why I'd be interested to see the legislation you claim exists concerning the children of foreign diplomats.

 

[erowe1]

Cool, can you link the legislation where Congress stated that the children of foreign diplomats were not eligible for birthright citizenship?

No.

BTW, just sort of reviewing section 5 I notice that it states, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Congress shall have the power to "enforce" the provisions rather than define them as you seem to be suggesting.

Which is why I'd be interested to see the legislation you claim exists concerning the children of foreign diplomats.

It doesn't just say "enforce." It says "enforce, by appropiate legislation..." The use of the word "enforce" there isn't handing over the power of the executive branch to Congress. It's still the executive branch that will enforce whatever legislation Congress enacts pursuant to the 14th Amendment. But it's delegating to Congress the legislative role of making laws that apply the 14th amendment. As with all legislation, including the laws related to foreign diplomats, this involves definitions and delineations between categories.

It shouldn't be up to the courts to work these things out by stretching and reapplying the 14th Amendment to situations it wasn't intended for, using its decisions effectively to write new laws. The 14th Amendment itself delegates that legislative application of its provisions to Congress alone. The courts should only apply the 14th Amendment in such ways as Congress has already legislated it to be applied.

 

[constituent]

It doesn't just say "enforce." It says "enforce, by appropiate legislation..." The use of the word "enforce" there isn't handing over the power of the executive branch to Congress.

I don't recall saying that it was.

Congress may enact legislation to enforce the amendment does not equal congress may enact legislation redefining the amendment.

Sorry.

BTW, I notice you didn't link the legislation you claim exists concerning the children of foreign diplomats.

 

[erowe1]

I don't see a way to legislate around this so long as immigrants are subject to the jurisdiction of fedgov, be that through labor
regulations, immigration regulation, etc.

It looks like here you are using the phrase "subject to the jurisdiction of fedgov" to mean subject to any federal laws. But if that's what "subject to the jurisdiction" means, and if any application of federal law to anyone results in their children born here being citizens, then you haven't gotten around the analogy of foreign diplomats, because there's a whole complicated system of which kinds of laws apply to which kinds of diplomats. If that means that they are "subject to the jurisdiction" of the USA, then by your reasoning their children can't be exempted from birthright citizenship.

But if you do want to keep allowing for the children of diplomats to be exempted from birthright citizenship, on the ground that they are not subject to the jurisdiction of the USA, then there's no reason Congress can't legislatively define how its laws specially apply to illegal immigrants in a way that it has done for diplomats and similarly to exempt their children from birthright citizenship.

 

[constituent]

But if that's what "subject to the jurisdiction" means, and if any application of federal law to anyone results in their children born here being citizens, then you haven't gotten around the analogy of foreign diplomats,

The example you used was traffic laws which are within the jurisdiction(s) of the various states.

Your example was invalid given the discussion.

And you still haven't linked the legislation you claim exists concerning the children of foreign diplomats.

 

[erowe1]

Congress may enact legislation to enforce the amendment does not equal congress may enact legislation redefining the amendment.

I haven't proposed Congress redefining anything in the amendment. The amendment was never intended for anchor babies. We all know that. If it is ever to applied to them, the 14th Amendment itself delegates to Congress and Congress only the role of so applying it through appropriate legislation. Until Congress actually writes such a law, it doesn't exist. It isn't the role of the courts to concoct it out of the 14th Amendment itself without Congress legislating it.

Similarly, if Congress wants to head the courts off at the pass by explicitly legislating that the 14th Amendment isn't to be applied that way, by the same reasoning, it can do that.

 

[erowe1]

The example you used was traffic laws which are within the jurisdiction(s) of the various states.

There are lots of examples, and they are all (including the part about how traffic laws apply to diplomats) part of federal law.

And you still haven't linked the legislation you claim exists concerning the children of foreign diplomats.

I said I wasn't going to. Feel free to do your own research and get back to us if you're so inclined.

 

[constituent]

It looks like here you are using the phrase "subject to the jurisdiction of fedgov" to mean subject to any federal laws.

Let's make this easy for ya.

Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.

It is clear why the children of diplomats are not protected under the 14th, because their parents are given diplomatic immunity that protects them from the jurisdiction of fedgov.

Immigrants, however, are currently subject to the jurisdiction of fedgov, and naturally the 14th amendment applies to their children born in the United States.

 

[constituent]

It looks like here you are using the phrase "subject to the jurisdiction of fedgov" to mean subject to any federal laws.

Let's make this easy for ya.

Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.

It is clear why the children of diplomats are not protected under the 14th, because their parents are given diplomatic immunity that protects them from the jurisdiction of fedgov.

Immigrants, however, are currently subject to the jurisdiction of fedgov, and naturally the 14th amendment applies to their children born in the United States.

 

[erowe1]

It is clear why the children of diplomats are not protected under the 14th, because their parents are given diplomatic immunity that protects them from the jurisdiction of fedgov.

How is that clear? The very definition of "jurisdiction" that you just provided is one that would indicate that diplomats are under the jurisdiction of the federal government, since the federal government does have "practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility" regarding diplomats.

 

[constituent]

I said I wasn't going to.

Because it doesn't exist, and it was an invalid argument concerning Section 5 of the 14th.

Congress, in section 5, is given the authority to enact legislation designed to enforce the provisions of the 14th amendment.

Congress is not, however, given the power to redefine the other provisions contained within the 14th amendment as you have suggested.

 

[constituent]

How is that clear? The very definition of "jurisdiction" that you just provided is one that would indicate that diplomats are under the jurisdiction of the federal government.

One more time erowe.

Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities
http://www.ediplomat.com/nd/diplomatic_immunity.htm

 

[erowe1]

One more time erowe.

So you have a definition of diplomatic immunity that says that. So what? In actuality diplomatic immunity is not that simple. There are a variety of ways that federal law does subject foreign diplomats to its authority, as well as a variety of ways that it exempts them.

As I stated above, by your own definition of "jurisdiction" that you copied and pasted above, it is still true that diplomats are under federal government jurisdiction.

If you want to say that they can be under federal jurisdiction according to the various ways that federal law applies to them, and still not be under its jurisdiction in the sense meant by the 14th Amendment (and if you did say this, you would be correct), then you should have no trouble accepting that Congress has similar authority to legislate how federal jurisdiction applies to illegal immigrants.

 

[erowe1]

Because it doesn't exist.

Let's say it doesn't exist (and if you have evidence for that, I'd love to see it). So what?

That would only illustrate my point even better. Unless Congress positively passes legislation declaring that foreign diplomats are under federal jurisdiction according to the 14th amendment, and that babies born to them here are automatic US citizens, then no such law exists. And the courts would be wrong to legislate from the bench that babies born to diplomats are US citizens (notwithstanding the 14th Amendment and all the ways that diplomats in practice are subject to federal jurisdiction). Similarly with illegal immigrants, until Congress enacts legislation pursuant to the 14th Amendment that would make their babies citizens, then no such legislation exists. The 14th Amendment on its own doesn't do anything without congressional legislation.