It's often overlooked that, with rare exceptions, there was no such thing as an illegal alien back then. The issue of the status of native-born children of this largely non-existent class would not have been front of mind.
No, there wasn't. Even before the 14th Amendment, citizenship under Anglo-American common law was based on jus solis rather than jus sanguinis, i.e., place of birth rather than parentage. There were certain recognized exceptions. If the French Ambassador (or, more likely, his wife) gave birth to a child while posted in England or the United States, that child did not become a citizen of Great Britain or the United States and France would have stoutly objected to any such pretensions on the host nation's part. The Ambassador's kid was not "subject to the jurisdiction" of the home country for the same reason the Ambassador wasn't, so didn't become a citizen. Things would be different for a civilian French family living in Cleveland. Their kid, like the civilian French couple, is subject to the jurisdiction of the United States. If the French father mugs a Clevelander, he can be prosecuted for assault. If he fails to pay taxes on the income he earns, the IRS can come after him. He lacks certain privileges or duties of citizenship; he can't vote or be drafted, for example, but in most other respects he is no different from an American citizen.
The 14th Amendment establishes on a constitutional level birthright citizenship, jus solis. To be eligible for birthright citizenship, you need only to be born in the United States, which is a fairly easily ascertained matter, and be subject to its jurisdiction. Obviously, people who enter the United State after they are born do not qualify for birthright citizenship because they weren't born here. Whether they came here legally or illegally is irrelevant; the Constitution makes no such distinction. And once they are here, whether legally or illegally, they are subject to the jurisdiction of the United States -- unless they are the French Ambassador. But they can't become citizens unless naturalized.
If you are born in the United States, nothing in the 14th Amendment makes your citizenship turn on the status, legal or otherwise, of your parents. You're born here, full stop. Like your parents, whatever their status (unless they are the French Ambassador), you are subject to the jurisdiction of the United States. See what happens if you mug someone or don't pay your taxes. So you're a citizen.
That is the plain English meaning of the 14th Amendment. The Supreme Court has ruled more than once that it means what it says. That is the dominant view among legal experts of various political stripes, even some who don't like birthright citizenship as policy.
To be sure, there are a few outliers. There always are. And to be fair, the cases in which the Supreme Court said that the 14th Amendment means what it says did not squarely involve citizenship claims by children of illegal immigrants. They merely laid out principles from which that is the only reasonable conclusion. That leaves an opening for "creative" arguments. Pro tip: whenever an argument starts out: "I know that Smith v. Jones and Brown v. Green laid out rules that, fairly applied, go against us, but those cases weren't exactly the same as this one, so here's some lawyerly-sounding noises about why I should win" is unlikely to be very good. That said, a sufficiently motivated and unprincipled Supreme Court can do what it damn pleases and might buy it. They've done it before.
If someone paid me to do it, I could probably come up with some such lawyerly-sounding noises myself -- possibly a strained analogy to the children of soldiers from invading armies -- but though I am a whore, I would insist on being paid to do this. I don't do bad arguments for free.
Now Jaybird may wonder why I have an opinion on this (informed, if not exactly expert) and not on the 28th Amendment. The answer is simple: in one case I know what I'm talking about and in the other I don't. Birthright citizenship comes up in standard law school Con Law classes (I won the law school prize for Con Law back when people thought it was really law) and I have had work-a-day reasons to learn more in my practice. Neither is true of the 28th Amendment question, though if the question gets litigated that may change. I'm not sure why such an explanation should be necessary, but there it is.
Anybody remember the actual Donald Trump and his own pardon record? Who seriously thinks he needs Biden's example to abuse the pardon power? Or to do something he would not otherwise have done?
Way back almost eight hours ago, I said I had no opinion on the status of the 28th Amendment, hadn't done the work necessary to have a responsible opinion, and wasn't interested in what others had to say about it. We could have left it there, but you've insisted on flushing out views I don't have and don't have any pressing reason to do the considerable work I'd need to do to develop them. I keep trying to explain this, but you seem to think I have some strategic or tactical reason for not doing serious uncompensated legal research on demand. You are the one making requests, and I respectfully decline. I've said, repeatedly, all I have to say. If you want to keep pursuing this, knock yourself out.
I won't address what you think your needs are, but I've told you more than once that I don't know what she said and don't care enough to look. I'm not sure how I can be clearer than that, so, yes, that was a mistake on your part.
No, it isn't. It's about whether the native-born children of undocumented visitors are. And whatever else one can say about that, an executive order has about the same legal effect as a tweet.
You still haven't told me what she said and what the ABA said and where they differ if they do. Off past form, I know better than to rely on whatever account you give and I'm not interested enough to take a homework assignment a review them for myself.
That said, it doesn't take an expert to "pick" between them if they actually disagree. But so what? I can "pick" the best soccer team without being an expert, and I might accidentally be right in the end, but nobody would take my "pick" seriously, and they'd be right not to.
Why don't you tell me what she said? You might even get it right, though your reference to not amending the Constitution by tweet doesn't inspire confidence.
Ms. Slogan, the Archivist, has the base in
knowledge and experience that her views on the subject, whatever they may be, are entitled to the respectful attention of anyone interested in the topic -- an expert, if the notion doesn't offend you.
If and when I have the time and motivation to do the kind of deep dive necessary to develop an opinion worth airing on the subject, I will certainly look into what she has to say. Until then, I will accept your implicit answer to my last question.
Why should I argue for or against the 28th Amendment? I'm not obliged to have a hot take on a difficult legal issue just because someone wants one. Are you really puzzled that someone prefers not to talk about something until he has something to say? I guess that's the difference between experts and barstool blowhards.
1. Ok then.
2. Is your point that that isn't the dynamic and, therefore, there is someone who "decides" who gets laughed at, or that that is the dynamic and that some folks aspire to the non-existent office of Master of the Revels (or Comedy Central)? Either way, people laugh at what they laugh at, which -- surprise-- changes over time, catches the Bobby Bittmans of the world unaware, and leaves them blaming the audience when the old jokes don't land.
1. Yes, because it's true.
2. Nobody "decides" who gets laughed at. They just laugh, and the laughter lands or it doesn't. If you "fear" being laughed at, that's on you.
1. Well, yes. If the experts say that X isn't an expert, X isn't. Of course experts are sometimes wrong and some random non-expert isn't, if only by accident. But random non-experts aren't the way to bet.
2. Most of us leave things we don't understand to experts and we're right to. And we don't even think it's an issue. Sometimes, usually for bad reasons, we think differently. When we do, we get laughed at. As we should. And that's usually it. That's how it works.
If that's what you wanted to know, you could have asked. So here's what I think on that. I don't know how much homework the ABA put into this, but they usually do a good job. Right or wrong, their view likely is much better founded than that of barstool blowhards. But it's one of those issues that actual experts disagree about, so barstool blowhards, or anyone else, can think what they want. Doesn't mean they're not barstool blowhards or that what they think is worth considering. At least if you're concerned with what's so.
Why would you think a silly thing like that? I haven't seen their position on the 28th Amendment and am not greatly interested in it. I haven't done the work necessary to develop one for myself and no client has a dog in that fight, so I don't have to. David TC does a good job laying out the complexities. It's one of those procedural issues about which it's far more important to have some definite answer than any particular answer, so if, ultimately, the ABA and I come to different answers, no big deal. It's not as though they endorsed Jim Crow laws.
*Comment archive for non-registered commenters assembled by email address as provided.
On “Open Mic for the week of 1/20/2025”
Setting up his first big loss. Though he'll declare himself the winner regardless.
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Yes.
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They have always been around, though often sailing under a false flag.
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It's often overlooked that, with rare exceptions, there was no such thing as an illegal alien back then. The issue of the status of native-born children of this largely non-existent class would not have been front of mind.
"
We can’t go by what the people who wrote these laws thought they meant
I'm Antonin Scalia.
And I'm Neil Gorsuch.
And we approve this message.
On “Trump Term Two, Day One, Executive Orders”
Maybe he does, and that's why he selected Vance.
On “Open Mic for the week of 1/20/2025”
No, there wasn't. Even before the 14th Amendment, citizenship under Anglo-American common law was based on jus solis rather than jus sanguinis, i.e., place of birth rather than parentage. There were certain recognized exceptions. If the French Ambassador (or, more likely, his wife) gave birth to a child while posted in England or the United States, that child did not become a citizen of Great Britain or the United States and France would have stoutly objected to any such pretensions on the host nation's part. The Ambassador's kid was not "subject to the jurisdiction" of the home country for the same reason the Ambassador wasn't, so didn't become a citizen. Things would be different for a civilian French family living in Cleveland. Their kid, like the civilian French couple, is subject to the jurisdiction of the United States. If the French father mugs a Clevelander, he can be prosecuted for assault. If he fails to pay taxes on the income he earns, the IRS can come after him. He lacks certain privileges or duties of citizenship; he can't vote or be drafted, for example, but in most other respects he is no different from an American citizen.
The 14th Amendment establishes on a constitutional level birthright citizenship, jus solis. To be eligible for birthright citizenship, you need only to be born in the United States, which is a fairly easily ascertained matter, and be subject to its jurisdiction. Obviously, people who enter the United State after they are born do not qualify for birthright citizenship because they weren't born here. Whether they came here legally or illegally is irrelevant; the Constitution makes no such distinction. And once they are here, whether legally or illegally, they are subject to the jurisdiction of the United States -- unless they are the French Ambassador. But they can't become citizens unless naturalized.
If you are born in the United States, nothing in the 14th Amendment makes your citizenship turn on the status, legal or otherwise, of your parents. You're born here, full stop. Like your parents, whatever their status (unless they are the French Ambassador), you are subject to the jurisdiction of the United States. See what happens if you mug someone or don't pay your taxes. So you're a citizen.
That is the plain English meaning of the 14th Amendment. The Supreme Court has ruled more than once that it means what it says. That is the dominant view among legal experts of various political stripes, even some who don't like birthright citizenship as policy.
To be sure, there are a few outliers. There always are. And to be fair, the cases in which the Supreme Court said that the 14th Amendment means what it says did not squarely involve citizenship claims by children of illegal immigrants. They merely laid out principles from which that is the only reasonable conclusion. That leaves an opening for "creative" arguments. Pro tip: whenever an argument starts out: "I know that Smith v. Jones and Brown v. Green laid out rules that, fairly applied, go against us, but those cases weren't exactly the same as this one, so here's some lawyerly-sounding noises about why I should win" is unlikely to be very good. That said, a sufficiently motivated and unprincipled Supreme Court can do what it damn pleases and might buy it. They've done it before.
If someone paid me to do it, I could probably come up with some such lawyerly-sounding noises myself -- possibly a strained analogy to the children of soldiers from invading armies -- but though I am a whore, I would insist on being paid to do this. I don't do bad arguments for free.
Now Jaybird may wonder why I have an opinion on this (informed, if not exactly expert) and not on the 28th Amendment. The answer is simple: in one case I know what I'm talking about and in the other I don't. Birthright citizenship comes up in standard law school Con Law classes (I won the law school prize for Con Law back when people thought it was really law) and I have had work-a-day reasons to learn more in my practice. Neither is true of the 28th Amendment question, though if the question gets litigated that may change. I'm not sure why such an explanation should be necessary, but there it is.
"
Anybody remember the actual Donald Trump and his own pardon record? Who seriously thinks he needs Biden's example to abuse the pardon power? Or to do something he would not otherwise have done?
"
Lack of detail versus outright wrong. You pays your money and you takes your choice.
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Already did. See above.
On “President Biden Affirms the Passage of the ERA”
Way back almost eight hours ago, I said I had no opinion on the status of the 28th Amendment, hadn't done the work necessary to have a responsible opinion, and wasn't interested in what others had to say about it. We could have left it there, but you've insisted on flushing out views I don't have and don't have any pressing reason to do the considerable work I'd need to do to develop them. I keep trying to explain this, but you seem to think I have some strategic or tactical reason for not doing serious uncompensated legal research on demand. You are the one making requests, and I respectfully decline. I've said, repeatedly, all I have to say. If you want to keep pursuing this, knock yourself out.
On “Open Mic for the week of 1/20/2025”
With whom would I make such a trade, if I were so inclined?
On “President Biden Affirms the Passage of the ERA”
I won't address what you think your needs are, but I've told you more than once that I don't know what she said and don't care enough to look. I'm not sure how I can be clearer than that, so, yes, that was a mistake on your part.
On “Open Mic for the week of 1/20/2025”
No, it isn't. It's about whether the native-born children of undocumented visitors are. And whatever else one can say about that, an executive order has about the same legal effect as a tweet.
On “President Biden Affirms the Passage of the ERA”
You still haven't told me what she said and what the ABA said and where they differ if they do. Off past form, I know better than to rely on whatever account you give and I'm not interested enough to take a homework assignment a review them for myself.
That said, it doesn't take an expert to "pick" between them if they actually disagree. But so what? I can "pick" the best soccer team without being an expert, and I might accidentally be right in the end, but nobody would take my "pick" seriously, and they'd be right not to.
"
Why don't you tell me what she said? You might even get it right, though your reference to not amending the Constitution by tweet doesn't inspire confidence.
Ms. Slogan, the Archivist, has the base in
knowledge and experience that her views on the subject, whatever they may be, are entitled to the respectful attention of anyone interested in the topic -- an expert, if the notion doesn't offend you.
If and when I have the time and motivation to do the kind of deep dive necessary to develop an opinion worth airing on the subject, I will certainly look into what she has to say. Until then, I will accept your implicit answer to my last question.
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It may not seem so to you. but people who don't know things often think they're easier than they are.
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Why should I argue for or against the 28th Amendment? I'm not obliged to have a hot take on a difficult legal issue just because someone wants one. Are you really puzzled that someone prefers not to talk about something until he has something to say? I guess that's the difference between experts and barstool blowhards.
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So we agree. Good to know.
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1. Ok then.
2. Is your point that that isn't the dynamic and, therefore, there is someone who "decides" who gets laughed at, or that that is the dynamic and that some folks aspire to the non-existent office of Master of the Revels (or Comedy Central)? Either way, people laugh at what they laugh at, which -- surprise-- changes over time, catches the Bobby Bittmans of the world unaware, and leaves them blaming the audience when the old jokes don't land.
"
1. Yes, because it's true.
2. Nobody "decides" who gets laughed at. They just laugh, and the laughter lands or it doesn't. If you "fear" being laughed at, that's on you.
"
1. Well, yes. If the experts say that X isn't an expert, X isn't. Of course experts are sometimes wrong and some random non-expert isn't, if only by accident. But random non-experts aren't the way to bet.
2. Most of us leave things we don't understand to experts and we're right to. And we don't even think it's an issue. Sometimes, usually for bad reasons, we think differently. When we do, we get laughed at. As we should. And that's usually it. That's how it works.
"
1. That's what experts are for.
2. Who said people should not be able to hold whatever opinions they damn please, no matter how silly or ill-founded?
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If that's what you wanted to know, you could have asked. So here's what I think on that. I don't know how much homework the ABA put into this, but they usually do a good job. Right or wrong, their view likely is much better founded than that of barstool blowhards. But it's one of those issues that actual experts disagree about, so barstool blowhards, or anyone else, can think what they want. Doesn't mean they're not barstool blowhards or that what they think is worth considering. At least if you're concerned with what's so.
"
Why would you think a silly thing like that? I haven't seen their position on the 28th Amendment and am not greatly interested in it. I haven't done the work necessary to develop one for myself and no client has a dog in that fight, so I don't have to. David TC does a good job laying out the complexities. It's one of those procedural issues about which it's far more important to have some definite answer than any particular answer, so if, ultimately, the ABA and I come to different answers, no big deal. It's not as though they endorsed Jim Crow laws.
*Comment archive for non-registered commenters assembled by email address as provided.