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

[erowe1]

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

I never suggested that it can "redefine" them. Congress is not to redefine them, it is simply to define them (i.e. to enforce them through appropriate legislation). And until it does, they are not defined (i.e. there does not exist such legislation). The only legislation that exists enforcing any part of the 14th Amendment is whatever legislation Congress has passed, and including whatever definitions and distinctions are included in that legislation.

Even in the case of babies born to slaves, the 14th Amendment didn't simply make them citizens on its own. It accomplished that by authorizing Congress to enact legislation that would make them citizens, which Congress had already done at the time of the Amendment's ratification.

And if you want to talk about "redefining" the 14th Amendment, then we have to come to terms about what it means to begin with. Do you take an originalist approach or a living document approach? If you take a living document approach then it's constantly being redefined with and without the help of Congress, and there should be no reason it can't be redefined to exempt illegal immigrants from having anchor babies. But if you take an originalist approach, then you run into a different problem, which is that it wasn't originally intended to grant citizenship to anchor babies, nor did those who ratified it understand it to mean that. So exempting them from birthright citizenship would not require any redefining of the amendment from what it originally meant.

 

[constituent]

I never suggested that it can "redefine" them. Congress is not to redefine them, it is simply to define them (i.e. to enforce them through appropriate legislation).

And this is where your interpretation of Section 5 is wrong.

Congress is not authorized to define the terms within the amendment according to Section 5.
It is, however, authorized to enact legislation to enforce the provisions of the amendment.

Once more, Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Again, the word is "enforce" not "define."

The rest of your post, which was built upon this false premise, is meaningless until you come to terms
with the reality of what the words in Section 5 actually mean versus what you want them to mean.

The 14th amendment does apply to the children of immigrants, "legal" or otherwise.
(Unless they're foreign diplomats of course, b/c they do not fall under the jurisdiction of fedgov.)

 

[erowe1]

And this is where your interpretation of Section 5 is wrong.

Congress is not authorized to define the terms within the amendment according to Section 5.
It is, however, authorized to enact legislation to enforce the provisions of the amendment.

Once more, Section 5:



Again, the word is "enforce" not "define."

The rest of your post, which was built upon this false premise, is meaningless until you come to terms
with the reality of what the words in Section 5 actually mean versus what you want them to mean.

I already answered that above. The way Congress is to enforce it is by passing appropriate legislation. The amendment doesn't dictate to Congress what specific legislation is appropriate for accomplishing that, it delegates to Congress the role of deciding (i.e. defining) it. Legislation necessarily uses words to define what is being legislated. Until Congress passes legislation to enforce the 14th Amendment in any given way, then no such legislation exists. The 14th Amendment doesn't create that legislation by itself. There's no getting around it. Section 5 gives Congress the role of defining how the 14th Amendment is to be applied, just as Congress did when it made the children of slaves U.S. citizens by legislation.

This is an important thing to understand about the 14th Amendment. All those 20th-21st century court cases that take away powers the states formerly had, and that the 14th Amendment was not originally intended to deal with, even state powers that the Constitution explicitly forbids the federal government from interfering in (such as the establishment or religion), without acts of Congress legislating these things, are totally unconstitutional rulings.

Furthermore, the rest of what I said wasn't entirely based on that premise anyway. My additional point still stands that, regardless of what Congress's role is, if Congress did legislate that anchor babies aren't citizens it wouldn't be redefining anything in the 14th Amendment as that amendment was understood by those who ratified it. And if the meaning of the amendment is not determined by its original intent, but is something that changes over time, then there's no reason Congress can't redefine it. Whether you take an originalist or a living document approach to this, your argument about "redefining" the 14th Amendment is lose-lose.

 

[aGameOfThrones]

If congress can legislate U.S citizenship to the people in Puerto Rico -- then surely congress can legislate to remove that citizenship to the people in Puerto Rico born after such date as congress legislates to end U.S citizenship to the people born in Puerto Rico, right? So why can't congress under current "Law" exempt people who are not Citizens of any state, or citizens of the U.S from having their kids become either?

 

[Depressed Liberator]

If anyone could clear this up, do you guys support of citizenship for legal immigrants?

 

[constituent]

If congress can legislate U.S citizenship to the people in Puerto Rico

Congress is in charge of naturalization per Article 1 Section 8 of the constitution. So as far as I can tell (particularly without seeing the law you're talking about), that's not really a 14th amendment issue, unless perhaps it dealt with congress passing a law to enforce the recognition of citizenship held by the citizens of Puerto Rico(?). HTH

 

[specsaregood]

If anyone could clear this up, do you guys support of citizenship for legal immigrants?

Sure, why not?

 

[constituent]

I already answered that above.

And your answer was wrong.

The way Congress is to enforce it is by passing appropriate legislation. The amendment doesn't dictate to Congress what specific legislation is appropriate for accomplishing that, it delegates to Congress the role of deciding (i.e. defining) it.

This is a fiction that you've created out of whole cloth by warping the actual words contained
in the amendment into the words you wish were in the amendment.

The amendment did not give Congress the power to define "jurisdiction."

Again, it gave congress the power to pass laws necessary for the enforcement of the text of the amendment.

You're just flat wrong.

Legislation necessarily uses words to define what is being legislated.

And now you're just yapping... Listen, you could write a 5000 word essay on this and you'd still be wrong.

Until Congress passes legislation to enforce the 14th Amendment in any given way, then no such legislation exists. The 14th Amendment doesn't create that legislation by itself. There's no getting around it.

And the 14th amendment doesn't need to create that legislation. It assumes compliance,
but in the case of non-compliance, that is where section 5 comes in.

It gives the amendment teeth by allowing congress to pass laws designed to enforce the mandates of the Amendment.

The language is actually quite plain. Its meaning (as defined by the words actually present), apparent.

Section 5 gives Congress the role of defining how the 14th Amendment is to be applied, just as Congress did when it made the children of slaves U.S. citizens by legislation.

Here we go again, "defining."

No, Section 5 does not give congress the power to define the term "jurisdiction."

Section 5 gives congress the authority to enact legislation designed to ENFORCE the amendment. That's it.

One. More. Time.

The Text of Section 5:

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

"The power to enforce... the provisions," NOT "the power to define, by appropriate legislation, the provisions of this article."

Furthermore, the rest of what I said wasn't entirely based on that premise anyway.

Actually, your entire argument rests on it.

You tried to use the children of foreign diplomats to prove it.

You were wrong on that count too.

My additional point still stands that, regardless of what Congress's role is, if Congress did legislate that anchor babies aren't citizens

As long as immigrants are subject to the jurisdiction of fedgov, Congress cannot legislate that anchor babies aren't citizens.

Period. End of discussion.

it wouldn't be redefining anything in the 14th Amendment as that amendment was understood by those who ratified it.

Got source?

Of course not...

And if the meaning of the amendment is not determined by its original intent

Actually, it is.

but is something that changes over time

It isn't.

then there's no reason Congress can't redefine it.

And without amending it through the actual amendment process, they can't.

Whether you take an originalist or a living document approach to this, your argument about "redefining" the 14th Amendment is lose-lose.

Actually, it's your argument about redefining the 14th amendment not mine.

It is you who believes that congress can redefine the terms contained within the 14th amendment as it chooses. It can't.

Not only is your argument "lose-lose," it is total, absolute, utter and complete FAIL.

Congratulations.

 

[aGameOfThrones]

Congress is in charge of naturalization per Article 1 Section 8 of the constitution. So as far as I can tell (particularly without seeing the law you're talking about), that's not really a 14th amendment issue, unless perhaps it dealt with congress passing a law to enforce the recognition of citizenship held by the citizens of Puerto Rico(?). HTH

(It was the Jones-Shafroth Act)

Isn't U.S citizenship tied to the 14th amendment? American Samoans are not U.S citizens, but are American Nationals which falls under (A1 S8), right? Puerto Ricans are U.S citizens but not American Nationals which falls under the 14th amend, right? Puerto Ricans also have their own "Puerto Rican citizenship" along with the U.S citizenship.

 

[constituent]

Your (erowe) argument:

A constitutional amendment is not needed to ensure that anchor babies are not granted birthright citizenship under the 14th amendment. That is because of the language "subject to the jurisdiction thereof" which congress is allowed to define as it chooses, because Section 5 states that ""The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The argument concerning Section 5 is proven out, because the children of foreign diplomats are not granted birthright citizenship.

....

Every single aspect of this argument is wrong. Every. Single. One.

 

[constituent]

Isn't U.S citizenship tied to the 14th amendment?

"Birthright citizenship," yes. Previously, U.S. Citizenship was tied exclusively to meeting the "uniform rule for Naturalization,"
which congress was free to define (or "establish") as it chose.

American Samoans are not U.S citizens, but are American Nationals which falls under (A1 S8), right? Puerto Ricans are U.S citizens but not American Nationals which falls under the 14th amend, right?

Good question, but I'm thinking no.

The important question here is how jurisdiction relates to U.S. protectorates (unincorporated territories) like American Samoa.

Puerto Ricans also have their own "Puerto Rican citizenship" along with the U.S citizenship.

The courts have consistently ruled that there are two forms of citizenship within the United States, that of citizenship within a state and citizenship within the United States, so it doesn't surprise me.

I would be interested in reading more about the finer points of how this relates to protectorates like Puerto Rico, Guam, etc.

 

[constituent]

Ewww... so I'm reading on the Jones-Shafroth act, and that's just an ugly situation no matter how you slice it.

Was the passage of the Jones-Shafroth Act even constitutional? Doesn't it step outside the bounds of the uniform rule of naturalization, or is it merely a law passed to "enforce" the recognition of the citizens of Puerto Rico as citizens of the United States? If the latter, than the constitutionality of it is clear. The former, however, not so much.

[One thing it most certainly did not do though was attempt to define "subject to the jurisdiction thereof." ]

A question that might give us some context to explore:
Are all natural born residents of American protectorates granted birthright citizenship?

 

[aGameOfThrones]

(Organic Act of 1917 Jones Act)

§ 5. [Citizens of United States]




That all citizens of Puerto Rico, as defined by § 7 of the Act of April twelfth, nineteen hundred, "temporarily to provide revenues and a civil government for Puerto Rico, and for other purposes", and all natives of Puerto Rico who were temporarily absent from that island on April eleventh, eighteen hundred and ninety-nine, and have since returned and are permanently residing in that island, and are not citizens of any foreign country, are hereby declared, and shall be deemed and held to be, citizens of the United States; Provided, That any person hereinbefore described may retain his present political status by making a declaration, under oath, of his decision to do so within six months of the taking effect of this Act before the district court in the district in which he resides, the declaration to be in form as follows:




"I, ________________________________________ , being duly sworn, hereby declare my intention not to become a citizen of the United States as provided in the Act of Congress conferring United States citizenship upon citizens of Puerto Rico and certain natives permanently residing in said island."




In the case of any such person who may be absent from the island during said six months the term of this proviso may be availed of by transmitting a declaration, under oath, in the form herein provided within six months of the taking effect of this Act to the Executive Secretary of Puerto Rico; And Provided, further, That any person who is born in Puerto Rico of an alien parent and is permanently residing in that island may, if of full age, within six months of the taking effect of this Act, or if a minor, upon reaching his majority, or within one year thereafter, make a sworn declaration of allegiance to the United States before the United States District Court for Puerto Rico, setting forth therein all the facts connected with his or her birth and residence in Puerto Rico and accompany due proof thereof, and from and after the making of such declaration shall be considered to be a citizen of the United States.


(Mar. 2, 1917, c. 145, § 5, 39 Stat. 953; continued in effect July 3, 1950, c. 446, § 4, 64 Stat. 319)



*****************


§ 5a. [Citizens of Puerto Rico]




That all citizens of the United States who have resided or who shall hereafter reside in the island for one year shall be citizens of Puerto Rico: Provided, That persons born in Puerto Rico of alien parents, referred to in the last paragraph of § 5, who did not avail themselves of the privilege granted to them of becoming citizens of the United States, shall have a period of one year from the approval of this Act to make the declaration provided for in the aforesaid section: and Provided, further, That persons who elected to retain the political status of citizens of Puerto Rico may within one year after the passage of this Act become citizens of the United States upon the same terms and in the same manner as is provided for the naturalization of native Puerto Ricans born of foreign parents.


(Mar. 2, 1917, c. 145, § 5a; added Mar. 4, 1927, c. 503, § 2, 44 Stat. 1418; continued in effect July 3, 1950, c. 446, § 4, 64 Stat. 319)

**********


§ 5b. [Citizenship of persons born in Puerto Rico]




All persons born in Puerto Rico on or after April 11, 1899 after the effective date of this Act) and not citizens, subjects, or nationals of any foreign power, are hereby declared to be citizens of the United States; Provided, That the iniative of Act shall not be construed as depriving any person, Puerto Rico, of his or her American citizenship heretofore otherwise lawfully acquired by such person; or to extend such citizenship to persons who shall have renounced or lost it under the treaties and/or laws of the United States or who are now residing permanently abroad and are citizens or subjects of a foreign country; and Provided, further, That any woman, native of Puerto Rico and permanently residing therein, who, prior to March 2 1917, had lost her American nationality by reason of her marriage to an alien eligible to citizenship, or by reason of the loss of the United States citizenship by her husband, may be naturalized under the provision of § 4 of the Act of September 22, 1922, entitled "An Act relative to the naturalization and citizenship of married women", as amended.


(Mar. 2, 1917, C. 145, added as § 5b on June 27, 1934, c. 845, 48 Stat. 1245)

(Mar. 2, 1917, c. 145, added as § 5b on June 25, 1948, c. 649, 62 Stat. 1015, retroactive to Oct. 13, 1945)

***********

§ 5c. [Citizenship of persons misinformed as to status]




That any person of good character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States, and born in Puerto Rico on or after April 11, 1899, who has continued to reside within the jurisdiction of the United States whose father elected on or before April 11, 1900, to preserve his allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain entered into on April 11, 1899, and who, by reason of misinformation regarding his or her own citizenship status failed within the time limits prescribed by § 5 or 5a hereof to exercise the privilege of establishing United States citizenship and has heretofore erroneously but in good faith exercised the rights and privileges and performed the duties of a citizen of the United States, and has not personally sworn allegiance to any foreign government or ruler upon or after attain ment of majority, may make a sworn declaration of allegiance to the United States before any United States district court. Such declaration shall set forth facts concerning his or her birth in Puerto Rico, good character, attachment to the principles of the Constitution of the United States, and being well disposed to the good order and happiness of the United States, residence within the jurisdiction of the United States, and misinformation regarding United States citizenship status, and shall be accompanied by proof thereof satisfactory to the court. After making such declaration and submitting such proofs, such person shall be admitted to take the oath of allegiance before the court, and thereupon shall be considered a citizen of the United States.


(Mar. 2, 1917, c. 145, added as § 5c on May 16, 1938, c. 225, 52 Stat. 377; repealed Oct. 14, 1940, c. 876, § 504, 54 Stat. 1137)

************

What do you think of this Constituent?

 

[constituent]

It's almost bedtime tonight, but I am very much looking forward to reading it all and getting back together with you on it.

Have a good evening agameofthrones, and thanks for getting the ol' gears turning!

 

[constituent]

double post... lol

yep, time for bed.

 

[erowe1]

For those who are interested in what the phrase "subject to the jurisdiction thereof" meant to those who passed the 14th Amendment (and thus, the meaning it should have to any Congress that attempts to enforce the provisions of the 14th Amendment with appropriate legislation), here's a good article about it:
http://federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction.html

 

[constituent]

For those who are interested in what the phrase "subject to the jurisdiction thereof" meant to those who passed the 14th Amendment

Correction, what it meant to one guy who passed a law prior to the 14th amendment, the language of which was ALTERED from "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States," to "‘all persons born in the United States, and subject to the jurisdiction thereof."

Jurisdiction means what it means. There is no way for you to wiggle off of that one, sorry. :o

Sure, we could pretend that the language wasn't altered and that what the 14th amendment really says isn't what it really says (according to one guy), but that wouldn't be any more valid than saying that Section 5 gives congress the power to "define" the other clauses in the Amendment *again, it doesn't*, or that congress legislated an exemption for the children of foreign diplomats *again, they didn't*.

HTH

 

[erowe1]

Constituent, looking through your posts you obviously believe that Congress's authority to enforce the provisions of the 14th amendment through appropriate legislation must mean something different than what I've been saying all this time. You keep emphasizing that word "enforce" and just repeating the point. But I don't think I've seen anywhere that you actually say what you think it really does mean, and why you think that.

If it isn't authorizing Congress to pass laws that confer citizenship on certain people born here who are under U.S. jurisdiction, then what is it authorizing them to do? But if it is authorizing them to do that, then who else other than Congress would it be that defines the categories contained in those laws? Has Congress ever passed a law pursuant to the 14th Amendment that confers citizenship on babies of illegal immigrants (as it has done for a wide variety of other categories of people)? If Congress has not done that, then isn't it up to Congress either to do so (in which case it would become law) or not do so (in which case it would not become law)? And if that responsibility to pass such a law, determining that it would be "appropriate legislation" for the enforcement of the 14th amendment, or not to pass a law, determining that it would not be "appropriate legislation" for the enforcement of the 14th Amendment, does not belong to Congress, then what is the point of Section 5 of the 14th Amendment? Why should that section be in the amendment at all?

Furthermore, why are you so insistent that the meaning of "subject to the jurisdiction thereof" must now include a group of people that were not included in the phrase as it was intended when the 14th Amendment was passed (as you can see, for example, in the article I just linked in my previous post)? And if you have the power to interpret that phrase to mean something different than its original intent, why do you think that Congress, in passing legislation to enforce the 14th Amendment, would not have to interpret that amendment in the process and possibly interpret it differently than you want them to, and more along the lines of what it originally meant?

 

[constituent]

For those who are interested in what the phrase "subject to the jurisdiction thereof" meant to those who passed the 14th Amendment

Correction, what it meant to one guy who passed a law prior to the 14th amendment, the language of which was ALTERED from "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States," to "‘all persons born in the United States, and subject to the jurisdiction thereof."

Jursdiction means what it means. There is no way for you to wiggle off of that one, sorry. :o

Sure, we could pretend that the language wasn't altered and that what the 14th amendment really says isn't what it really says (according to one guy), but that wouldn't be any more valid than saying that Section 5 gives congress the power to "define" the other clauses in the Amendment *again, it doesn't*, or that congress legislated an exemption for the children of foreign diplomats *again, they didn't*.

HTH

 

[erowe1]

Jurisdiction means what it means.

What do you mean by this?

Does "jurisdiction" have a single simple meaning that is always the same in every context?

And what is that meaning? Please provide one that clearly excludes all the various kinds of foreign diplomats, consulars, their staffs, their families, and other foreigners who are exempted from birthright citizenship because of their not being "subject to the jurisdiction" of the US, despite the wide variety of ways that US laws do and don't apply to each of them in different piecemeal ways, and yet clearly does not exclude other types of foreigners visiting here, such as people on vacation, pregnant women who cross the border solely to have a baby who's a US citizen, and Canadian women who are transported across the border to give birth in nearby American hospitals for medical reasons?

You provided definitions above that didn't make the cut. Can you do better this time?