Birthright Citizenship and the Constitution

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Pieter Nosworthy
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Birthright Citizenship and the Constitution

#1

Post by Pieter Nosworthy » Fri Mar 12, 2010 11:24 am

I found this interesting article at "The Heritage Foundation"; "Before the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the Dred Scott v. Sanford decision had held that no black of African descent (even a freed black) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn Dred Scott and to settle the question of the citizenship of the newly freed slaves. The Fourteenth Amendment made United States citizenship primary and state citizenship derivative. The primacy of federal citizenship made it impossible for states to prevent former slaves from becoming United States citizens by withholding state citizenship. States could no longer prevent any black from United States citizenship or from state citizenship either."The rest of Professor Edward Erler's paper can be found...[/break1]heritage.org/Research/GovernmentReform/wm925.cfm]http://www.heritage.org/Research/Govern ... /wm925.cfmIn my opinion, the 2005 article encompasses many of the key points often discussed here at PJ into surprisingly few paragraphs regarding citizenship, natural law, and the constitutionality of certain court cases. -Noz

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#2

Post by ducktape » Fri Mar 12, 2010 11:29 am

There are no interesting articles at the Heritage Foundation.

Pieter Nosworthy
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#3

Post by Pieter Nosworthy » Fri Mar 12, 2010 11:34 am

There are no interesting articles at the Heritage Foundation.Well, alrighty, then. Your open mindedness is both startling and impressive...thanks for setting an example most of us will never achieve.-Noz

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#4

Post by nbc » Fri Mar 12, 2010 12:04 pm

The same old quote mining....Have they no shame?

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#5

Post by AuBricker » Fri Mar 12, 2010 12:07 pm

I made the mistake of reading the linked article, and if there is anything of interest at this site, it's not to be found in article.The 14th Amendment speaks for itself. While I lack the ability to track the etymology of the word "alliance," I'm fairly certain that is was not a synonym for "jurisdiction" in the mid-19th Century . Had the drafters of the 14th Amendment intended to mean "alliance" when they wrote "jurisdiction," they would have used the word "alliance" instead. They selected the word "jurisdiction:" It's inclusion of the phrase "born in the United States or subject to the jurisdiction thereof" was no printer's mistake. The Framers of the 14th Amendment used that specific language for a reason.There are countless cases of government maltreatment of Native Americans throughout our history. No numbers of such injustices dilutes the meaning of the 14th Amendment. Such behavior distracts from our image of the American Exceptionalism existing in conservative fantasies, but it does not alter the Constitution.

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#6

Post by Pieter Nosworthy » Fri Mar 12, 2010 12:09 pm

The point of conjecture and a great topic for discussion is the IDEA that the citizenship statutes could be amended to exclude children born on American soil to foreigners and still be fully Constitutional. For some, it is wondered why the laws were ever written to grant what our constitution does not even remotely stipulate.Opinion and the Law. No doubt, there would be a WKA II case that would be heard and adjudicated. In the present climate of illegal immigrant special interest, it is likely to be struck down, but who knows?One of the failures of conceptualizing this debate can be alluded to with the internment of Japanese-Americans during the second world war. The decision, like so many others, were not made in a vacuum or solely based on racial prejudices...in the case of the those unconstitutionally denied their rights, it was considered based on past behaviors that the allegiance and fealty of some Americans were suspect and with cause to hold as a threat to national security. In hind sight, the decision was dreadful and unnecessary but understandable given the congressional discussions of the 20s and the immediacy of total war.Anyway, even though the site for the article is not the best for the PJ audience, the subject really is good fodder for discussion.-Noz

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#7

Post by Pieter Nosworthy » Fri Mar 12, 2010 12:10 pm

The same old quote mining....Have they no shame?No, not really. Pride goeth before...and parties with folks who have shame are boring.-Noz

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Birthright Citizenship and the Constitution

#8

Post by Tesibria » Fri Mar 12, 2010 12:13 pm

I found this interesting article at "The Heritage Foundation";


***


[/break1]heritage.org/Research/GovernmentReform/wm925.cfm]http://www.heritage.org/Research/Govern ... /wm925.cfm


In my opinion, the 2005 article encompasses many of the key points often discussed here at PJ into surprisingly few paragraphs regarding citizenship, natural law, and the constitutionality of certain court cases.





-NozWell, I agree that it addresses many of the issues that have been discussed, though I don't agree fully with all the contentions in that excerpt. That being said, I have a copy of the Heritage Guide to the Constitution, and read that excerpt some time ago and, indeed, I included the Heritage Guide in the WYE NBC Resources Compendium - quoting particularly the following:





[189-91]


"Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."





"In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of "citizen" in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. Notwithstanding the Supreme Court's discussion in Wong Kim Ark, a majority of commentors today argue that the Presidential Eligibility Clause incorporates both the common-law and English statutory principles, and that therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968."
“Words are sacred. They deserve respect. If you get the right ones, in the right order, you can nudge the world a little.”― Tom Stoppard
WYE: Arpaio-Melendres-Seattle Operation Timeline | Sectec Astronomy: Dennis Montgomery Timeline

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#9

Post by gentrfam » Fri Mar 12, 2010 12:14 pm

There are no interesting articles at the Heritage Foundation.Well, alrighty, then.





Your open mindedness is both startling and impressive...thanks for setting an example most of us will never achieve.





-NozCompare the Heritage article with the one written by James Ho for [/break1]ilw.com/articles/2007,0212-ho.pdf]Green Bag.





Ho details the quote-mining in the anti-birthright citizen scholars like Earle and Eastman of the Heritage Foundation. Put in context, it seems clear that Heritage is wrong.





I'd point out that the Heritage article concludes this way:





Nonetheless, the decision conferred birthright citizenship on a child of legal residents of the United States. Although the language of the majority opinion in Wong Kim Ark is certainly broad enough to include the children born in the United States of illegal as well as legal immigrants, there is no case in which the Supreme Court has explicitly held that this is the unambiguous command of the Fourteenth Amendment.Even the opponents of birthright citizenship for illegal aliens are honest enough to acknowledge that Wong Kim Ark settled the question for the children of anyone here legally.

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#10

Post by Pieter Nosworthy » Fri Mar 12, 2010 12:17 pm

"Even the opponents of birthright citizenship for illegal aliens are honest enough to acknowledge that Wong Kim Ark settled the question for the children of anyone here legally."Yes, I agree. But, it is an opinion (with a dissent)...one that has not been re-looked in over a hundred years.Law and opinion.-Noz

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#11

Post by Pieter Nosworthy » Fri Mar 12, 2010 12:19 pm

Oh, and thanks for the link to the Ho paper...very interesting.-Noz

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#12

Post by nbc » Fri Mar 12, 2010 12:26 pm

"Even the opponents of birthright citizenship for illegal aliens are honest enough to acknowledge that Wong Kim Ark settled the question for the children of anyone here legally."Yes, I agree. But, it is an opinion (with a dissent)...one that has not been re-looked in over a hundred years.Law and opinion.-NozThe opinion was quoted over 180 times... In fact most recently in Ankeny v Daniels where the Indiana Court of Appeals concluded that President Obama is a natural born citizen.

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#13

Post by Welsh Dragon » Fri Mar 12, 2010 12:34 pm

I certainly didn't find the article interesting.The issue of british citizenship and perpetual allegience is just a straw man - perpetual allegience hasn't been part of English Law since 1870ish and it was a debatable point from the Treaty of Paris onwards.The selected quotes from the 1860s and the attempts to give more weight to the dissent on in WKA than the majority are a peversion of legal analysis beloved anti-immigration groups and birthers alike. If it had weight then let them get a case to the Supreme Court, if it doesn't use the political system to change the law otherwise they're just playing a game of let's pretend.

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#14

Post by Pieter Nosworthy » Fri Mar 12, 2010 1:48 pm

Hey, folks, I didn't attest to the veracity of the post...only its topicality.





Some are arguing that the matter is moot and unassailable...my inner punker thinks this perspective smacks of baldfaced fascism. Remember, I'm the one with the supposed unreasoned worldview and lack of clarity on the matter. You guys, on the other hand, are expected to be the sword bearers of good conscience and civil discussion.





Me ignorant and without redeeming graces, you intelligent and model exemplars of our constituency.





There was a time when what was good for the nation, and the future of such, was held in the highest esteem. We did not put agenda, necessarily, before a republic that our progeny would inherit. Perhaps the PC aspect of the discussion has overshadowed the need for clarity and purpose with respect to certain principles however politically distasteful.





-Noz





Whether or not there is consensus, I really appreciate this forum, the posters, and the spirit for which it was intended. Really. PJ rocks and should be proud of what it stands for...whatever that might actually be.

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#15

Post by AuBricker » Fri Mar 12, 2010 3:34 pm

Actually, I think revisiting settle law to relegate certain Americans to a lesser class of citizenship, the effort to remove a popularly elected president from office by unconstitutional means, or any attempt to tamper with the Reconstruction Amendments sounds a bit fascist to me.

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#16

Post by Pieter Nosworthy » Fri Mar 12, 2010 3:40 pm

Actually, I think revisiting settle law to relegate certain Americans to a lesser class of citizenship, the effort to remove a popularly elected president from office by unconstitutional means, or any attempt to tamper with the Reconstruction Amendments sounds a bit fascist to me.Careful, you might join my peanut gallery...second class citizens, it is currently accepted that naturalized citizens are not permitted to hold the office of POTUS. Good gracious, I hope you're not not a "tea bagger" or some other wierdo.Ha!-Noz

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#17

Post by TollandRCR » Fri Mar 12, 2010 3:54 pm

"Even the opponents of birthright citizenship for illegal aliens are honest enough to acknowledge that Wong Kim Ark settled the question for the children of anyone here legally."Yes, I agree. But, it is an opinion (with a dissent)...one that has not been re-looked in over a hundred years.Law and opinion.-NozAre you suggesting, as are many Birfers, that Wong Kim Ark was wrongly decided and needs another look? Apparently some use that phrase "it is an opinion (with a dissent)" to mean that the court's ruling is really of no more value than would be the opinions expressed around my dinner table. So would, say, Brown v. Board of Education also be just an opinion that we have not re-examined in almost 60 years? Do you draw no distinction between a court's decision and the opinions of a legal scholar?
“The truth is, we know so little about life, we don’t really know what the good news is and what the bad news is.” Kurt Vonnegut

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#18

Post by Pieter Nosworthy » Fri Mar 12, 2010 4:08 pm

"Even the opponents of birthright citizenship for illegal aliens are honest enough to acknowledge that Wong Kim Ark settled the question for the children of anyone here legally."Yes, I agree. But, it is an opinion (with a dissent)...one that has not been re-looked in over a hundred years.Law and opinion.-NozAre you suggesting, as are many Birfers, that Wong Kim Ark was wrongly decided and needs another look? Apparently some use that phrase "it is an opinion (with a dissent)" to mean that the court's ruling is really of no more value than would be the opinions expressed around my dinner table. So would, say, Brown v. Board of Education also be just an opinion that we have not re-examined in almost 60 years? Do you draw no distinction between a court's decision and the opinions of a legal scholar?I love PJ. This is the best site on the entire blog...We are dealing with near-philosophical worldviews. The WKA decision has been discussed ever since the ruling...the matter is not moot. Some have crappy reasons for dissent and others less so. I brought up the internment of the Jap-Ams previously due to a glaring reality that it provided...regardless of the perceived constitutional truths we hold dear, there are times when principle and reality overcome the prevalent expediencies. So, what does this mean? Are there truths that we will affirm when push comes to shove and those that we will let go for wont of a peace when situations allow?I don't know...but I am interested to know.We share something in that neither of us is capable of rendering an answer (authoritatively).-Noz

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#19

Post by MaineSkeptic » Fri Mar 12, 2010 4:12 pm

...The WKA decision has been discussed ever since the ruling...the matter is not moot. Some have crappy reasons for dissent and others less so. I brought up the internment of the Jap-Ams previously due to a glaring reality that it provided...regardless of the perceived constitutional truths we hold dear, there are times when principle and reality overcome the prevalent expediencies. So, what does this mean? Are there truths that we will affirm when push comes to shove and those that we will let go for wont of a peace when situations allow?I will ask again a question of mine which you left unanswered some weeks ago.Is it your belief that, if WKA were reversed, it could have a retrospective effect on Obama's eligibility, even given the fact that WKA was recognized as prevailing law at the time of his election and inauguration?

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#20

Post by Pieter Nosworthy » Fri Mar 12, 2010 4:20 pm

...The WKA decision has been discussed ever since the ruling...the matter is not moot. Some have crappy reasons for dissent and others less so. I brought up the internment of the Jap-Ams previously due to a glaring reality that it provided...regardless of the perceived constitutional truths we hold dear, there are times when principle and reality overcome the prevalent expediencies. So, what does this mean? Are there truths that we will affirm when push comes to shove and those that we will let go for wont of a peace when situations allow?I will ask again a question of mine which you left unanswered some weeks ago.





Is it your belief that, if WKA were reversed, it could have a retrospective effect on Obama's eligibility, even given the fact that WKA was recognized as prevailing law at the time of his election and inauguration?Look, you ask questions like I'm smart or something...





Here is what I think in a nutshell;





THOSE THAT WROTE THE ELIGIBILITY PHRASE DID NOT EXPECT LATER GENERATIONS TO USE AN ALGORITHM TO DETERMINE WHO MET THE INTENT OF NATURAL BORN CITIZEN. THEY CONSIDERED THE MATTER STRAIGHT FORWARD AND SELF-EXPLANATORY.





I'm starting to think they were dicks and had a terrible sense of humor.





-Noz

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#21

Post by Sterngard Friegen » Fri Mar 12, 2010 4:21 pm

Skeppy - the answer to your question is that Nosworthy certainly hopes so. He won't answer you directly.

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#22

Post by Pieter Nosworthy » Fri Mar 12, 2010 4:26 pm

Skeppy - the answer to your question is that Nosworthy certainly hopes so. He won't answer you directly.Correct me if I'm wrong (ha), I get the hint of an impression that you do not enjoy my presence, commentary, or mere fact of existence on this planet.





Love, kisses, and bunches of hugs (with long talks about unicorns and stuff).





-Noz

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#23

Post by gentrfam » Fri Mar 12, 2010 4:43 pm

Yes, I agree. But, it is an opinion (with a dissent)...one that has not been re-looked in over a hundred years.When was the last time Marbury v. Madison was looked at? Generally the older a case is, the more respect it is given as settled law. But, as pointed out above, Wong Kim Ark has been cited approvingly in dozens of Supreme Court cases, hundreds of cases in total, and in more than a thousand law review articles. You can search court cases at: [/break1]google.com]http://scholar.google.comChecking the history of a case is the first thing they teach in law school, so it's frustrating to hear a misstatement like this.

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#24

Post by bob » Fri Mar 12, 2010 4:48 pm

This is a typical logical fallacy employed by birthers. They say, "Obots only like Wong Kim Ark because it supports their position." Wrong. Obots "like" Wong Kim Ark because it is valid, settled law.
Imagex6 Imagex2 Imagex4 Imagex2

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#25

Post by Pieter Nosworthy » Fri Mar 12, 2010 4:59 pm

Yes, I agree. But, it is an opinion (with a dissent)...one that has not been re-looked in over a hundred years.When was the last time Marbury v. Madison was looked at? Generally the older a case is, the more respect it is given as settled law. But, as pointed out above, Wong Kim Ark has been cited approvingly in dozens of Supreme Court cases, hundreds of cases in total, and in more than a thousand law review articles. You can search court cases at: [/break1]google.com]http://scholar.google.comChecking the history of a case is the first thing they teach in law school, so it's frustrating to hear a misstatement like this.No offense, but I love the nature of language. Everything you have stated connotates room for doubt and discussion. Opinions change and the law is subject to amendment...the constitution especially so but with greater challenge.Thank you for your input...no cheek or insult intended whatsoever. -Noz

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