subgenius wrote:Doctor Steuss wrote:A questions for our legal eagles.
Since the meaning of the clause was somewhat fleshed out within the debate when the amendment was being discussed, combined with Supreme Court decision 120-ish years ago, is there even a fart’s chance in a hurricane that this could get past the first district court it lands in?
Oh, its going to Supreme Court, the previous Supreme Court decision was specific only to legal immigrants and did not include illegal/undocumented persons. This is the legal question, because the 14th amendment qualifies with
"...and subject to the jurisdiction thereof".
The argument is that an illegal immigrant is not legally qualified as being "subject to the jurisdiction".....legally speaking, being subject = someone who in law has the capacity to realize rights and juridical duties. (that juridical duties is a pincher). I think the real fog is that if you interpret this part of the clause to include "illegal immigrants" then you are effectively saying that an illegal immigrant is magically transformed into a legal immigrant (a.k.a. citizen) simply by being within our borders.
But i suppose Supreme Court will eventually know better and let us all know.
I had a friend who used to say "you couldn't be more wrong if you'd been beaten with the wrong stick." Sub, you're pretty close to that here.
First, if Trump actually did issue an executive order purporting to revoke birthright citizenship, it would never make it to the Supreme Court. Why not? Because Congress passed a statute that recognizes birthright citizenship. So it's a slam dunk loser at the District court. A slam dunk loser at the Court of Appeals. And a cert denied at the Supreme Court.
What could get to the Supreme Court is a bill passed by Congress that amends existing law to eliminate birthright citizenship. Whether it would depends on whether the Supreme Court has four members willing to rewrite the actual words of the 14th Amendment. So, even this is a "could" rather than a "will."
Second, Sub's whole "subject to the jurisdiction" argument is exactly backwards. Someone being subject to the jurisdiction of the United States doesn't make them a citizen. Illegal immigrants are subject to the jurisdiction of the United States. Otherwise, they could never be prosecuted for federal crimes. If what Sub said were true, ICE could never arrest a person present in the U.S. illegally because they wouldn't have the jurisdiction to do so. Likewise, courts would dismiss any action to remove people here illegally because they wouldn't have any jurisdiction over them.
There is clear history on who is not subject to U.S. jurisdiction: foreign ambassadors. The 14th amendment's grant of citizenship does not apply to them.
Third, Sub's entire argument is based on the claim that Congress can take away a right specifically granted by the Constitution. That, again, is 100% backwards. The Constitution expressly extends citizenship to all persons born here. Congress can't change that by passing a law -- any law.
We have a Constitution that specifically says that the rights of citizens are not limited to those listed in the Constitution. When the Supreme Court held that the rights of citizens included a right to privacy, conservatives lost their crap and accused the Court of making legislation, even though it had acted completely consistent with what the Constitution says.
Now, the proposition is that Conservative Justices are going to literally change the wording of the Constitution from "All persons born" to "All persons except those born to parents not legally present in the United States..." If that actually happens, we might as well stop pretending the Constitution means anything.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951