"Let me be very clear as a historian of the Constitution there has been
one — one! — O-N-E — one! — count it:
one
—
one constitutional crisis in our history that our Constitution was incapable of solving and that, of course, was slavery... The Constitution was not capable of resolving that issue without a war so we had indeed a constitutional crisis.... Compare that to what's going on today. If you listen to... Chuck Schumer you think we're going have a civil war. No! Listen to Donald Trump.... He said I will comply with every court order and then I will appeal it. And he didn't say this but obviously his lawyers... will seek a stay.... You can't allow hundreds and hundreds and hundreds of federal judges sitting in obscure parts of the country somewhere... in Rhode Island or somewhere in the south of California to issue an injunction that covers everybody in the United States.... Democrats! Democrats! Don't yell wolf!... Don't tell us that there is no political recourse..... We have three independent branches of the government —
not a fourth. The bureaucracy is not in the Constitution.... It's very complicated. And president Trump for the first time has said let's look hard at these bureaucracies.... If you want to complain about what the administration is doing, that's your right... but don't exaggerate...."
Says Alan Dershowitz in his excellent new podcast.
And Dershowitz thinks Trump is not necessarily wrong on the birthright citizenship question. He said "I'd love to argue it in front of the United States Supreme Court. I don't know how it would come out." That willingness has a limitation:
I don't believe that the
President of the United States has the power unilaterally to declare that birthright citizenship [excludes the children of those in the country illegally.... I think if Congress were to pass a statute that defined what the jurisdiction of the United States is we'd have an interesting case....
He's referring to the language of the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
It's so so complex, birthright citizenship.... But just because the president is pushing a constitutional view further than I think it it deserves to be pushed doesn't mean we have a constitutional crisis.... The courts will decide the case and the courts... may decide it right... may decide it wrong... Nobody is going to be thrilled with every outcome... but don't call it a crisis when it's just a conflict ....
Posts
50 comments:
Apparently, Dersh is the one Epstein associate who did not get the memo.
The democratic party is now a post-constitutional party. the last 8 years have proven they recognize no actual boundaries on the federal government that cannot be overcome with lawfare and patience. They did not and do not recognize any limit to their authority and do not consider themselves public servants in a way even approaching the way democrats of 50 years ago would define it.
They have made their bed with the alphabet mafia and federal bureaucracy and have lain in it, and they themselves are forcing themselves to stay there. We are happy to oblige the permanently defective mating of these odd bedfellows.
The Democrats have been crying "wolf" since Trump became the Republican nominee in 2016. Most people stopped listening after a few years of Biden. Democrats can now either shut up or keep babbling, as no one will listen anymore.
Dersh has a pair. Imagine that with these opinions you lived in Cambridge MA and summered on Martha's Vineyard ...
“The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.” — James Madison
There is no mention of the permanent bureaucracy as one of the "several branches of government" anywhere.
Whether or not the children of illegal aliens born here are citizens at birth is not necessarily a question resolved by the 14th amendment. It is perfectly possible that 14th amendment doesn't require that those children be granted citizenship but an act by Congress does require that. I haven't seen any polling but I suspect there would be broad public support in the country for a bill in Congress that would specifically exclude, on a go-forward basis, the children of illegal immigrants born here from US citizenship, as well as the children of those born here on temporary work visas, or vacations.
Mainstream Democratic loyalist cultists everywhere are so filled with despair and delusion about reality - they are so consumed with the hysterics fed to them by the corrupt Democrat Party press - they actually think Trump is Hitler, and Musk is stealing their Social Security.
We are happy to oblige the permanently defective mating of these odd bedfellows.
Who does not want to have a Friday beer and some chicken wings with RideSpaceMountain?!
- Krumhorn
Wince said... 1/26/25, 1:19 PM
14th Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Question for Althouse: Can the definition who is "subject to the jurisdiction thereof [the United States]" be determined by congressional legislation, therein bypassing the entire issue of constitutional interpretation?
Richard Epstein argues against birthright citizenship as a matter of law.
Right now the Dims could stand an intervention from a political adult in the room. It will ultimately happen, but it may take the demise of the current Dim party in Rogan's buffalo trap.
But the one certain thing in American politics is that either particular party may ride high for a while, but that party eventually comes back to earth and the other party is ascendant.
"Question for Althouse: Can the definition who is "subject to the jurisdiction thereof [the United States]" be determined by congressional legislation, therein bypassing the entire issue of constitutional interpretation?"
That's a very complicated question. There are some situations where a legislative definition can affect what a constitutional term means (such as "property" in the Due Process Clause). What does "jurisdiction" mean there? Is it helpful to the court that Congress has prescribed a meaning but not helpful if the President had? I'd have to work on this for a long time to want to say. I like that Dershowitz reserves judgment on the question. That's my approach too. These people who say everyone knows the answer, there's only one possible way, and you're terrible if you don't proclaim allegiance to our side — I don't like their style.
Wince @ 2/13/25, 12:06 PM
Historically, there have been several congressional laws passed that have expanded, limited, and/or clarified who may, or may not, be, or become, United States citizens.
I see no reason why Congress cannot, should not, express its legislative opinion re: the jurisdiction text.
Of course, were that legislation appear to exclude "birthright citizenship" for babies born to illegal migrants and/or temporary residents, that would immediately be legally challenged, and so would most likely end up at SCOTUS anyway.
But I'm just guessing at all that... :- )
In the adage, the boy who cried wolf wasn't mistaken or panicky. He knew there was no wolf threatening the villagers' sheep. He yelled wolf to enjoy the spectacle of frightened women gathering their children and herding them indoors, and outraged men charging into the forest inadequately armed with whateven ersatz weapon they could take in hand to face a savage and deadly beast. The boy who cried wolf was a nasty piece of work, and when finally encountered a real wolf his cries fell on ears made deaf by his history of lies. The story ends with the boy getting his just deserts—being digested and shitted out the nether end of the wolf.
Oh, I completely disagree with Dersh- we should be sending flammable hair gel with matches and butane lighters to all the Dems so they can really set their heads on fire while running around.
While this goes through the court system propose an amendment declaring that those born in the United States aren’t citizens by birth unless one of their parents is a citizen or a lawful permanent resident.
Liberals have been very successful in crying wolf. Usually the scram wolf. Why stop now? "The polar ice caps will melt by 2009." "This is a pandemic of the unvaccinated." "For the unvaccinated this will be a winter of death." "Act 10 will ruin education in Wisconsin." "Freezing UW tuition will destroy higher education." "Trump is a Nazi." "Tulsi is a Russian asset."
It works well on their base. Classic milieu control.
These people who say everyone knows the answer, there's only one possible way, and you're terrible if you don't proclaim allegiance to our side — I don't like their style. It's not about "style". It's about enough is enough. Entering the country illegally, and purposefully anchor yourself by having a baby, and then work the system to collect benefits is not a constitutional protection.
Is there any other country on Earth, where an American citizen can enter illegally, or overstay a visa, pump out a baby, and the baby automatically is a citizen of that country eligible for all its benefits, including the right to vote a given age. If the answer is "none" than maybe we are doing something really stupid.
A bit long but this article is fascinating. It posits that the lawsuits and injunctions are a trap of the Demmie's own making. He doesn't say it but it is sort of Trump saying "Don't throw me in that briar patch!"
The real action is in Congress, according to this article, with Mike Johnson. He is preparing a budget bill that will implement most of the EO spending cuts into law.
After all the yelling about how the president does not have the power, that the power resides in congress, congress seems ready to exercise that power. Now, if Congress and Senate pass a law eliminating, say, USAID or DOE, or authorizing DOGE and so on, how can the Demmies complain? They will, but they will look even more foolish than they do already.
Link to article https://www.coffeeandcovid.com/p/swamp-apocalypse-wednesday-february H/T Insty
John Henry
"You can't allow hundreds and hundreds and hundreds of federal judges sitting in obscure parts of the country somewhere... in Rhode Island or somewhere in the south of California to issue an injunction that covers everybody in the United States.."
Sounds like a Constitutional Crisis to ME!
these unelected "judges" are attempting to usurp the Elected Leaders of our Country..
If THAT is Not a Constitutional Crisis.. What IS?
The 2020 election integrity revelations that will drop sometime in the next two years may very well provoke a "constitutional crisis".
I have a different question. What is the reason why people want birthright citizenship? What benefit does it confer to the US? Could someone provide me with another answer besides the fact that Democrats believe that people who obtain citizenship in this way will more likely vote for Democrats when they are old enough to vote?
Dersh to Dems: Be kind. Please rewind.
I am a Citizen of The United States. I am ALSO a male..
BECAUSE i am "subject to the jurisdiction thereof"; i can be DRAFTED into the US Army.. EVEN IF i am living abroad..
If a Chinese person comes into the United States, Can that Chinese person be Drafted?
If the answer is NO (And, the answer IS no)..
Then HOW is that Chinese tourist "subject to the jurisdiction thereof" ??
????????????
That's a very complicated question. There are some situations where a legislative definition can affect what a constitutional term means
It seems that Congress has effectively, over the last 100 years, decided what the commerce and general welfare clauses mean: Whatever the h*** they want them to mean.
In Canada, the citizenship law says that a baby born over Moose Jaw to a woman flying non-stop from Mexico City to Anchorage is a Canadian citizen by birth.
The specific language regarding birthright citizenship includes "Canadian airspace" Also, the language says that if one is born on the bottom of Lake of the Woods, one is a birthright Canadian citizen.
I am not sure that a baby born on a flight over the US, not stopping on US soil, is a 14A citizen. Anyone know? It is rare enough that I don't really care one way or the other.
Also, the Canadian healthcare system is responsible for hundreds of thousands of Canadian babies being US citizens. 10-15m mothers per year are sent to us hospitals to give birth because of lack of space or difficult conditions.
In 2007, there was not a single Canadian hospital that could handle the birth of the Jepp quadruplets. They wound up going to Great Falls MT (Pop 60m) which could. Those kids are as American as you and me.
John Henry
Richard said...
"What is the reason why people want birthright citizenship? What benefit does it confer to the US? "
Citizens (male citizens at Least), can be called into the militia (by which i mean, can be drafted and sent to Asia to fight the Chinese (like they did to my father in 1952)).
Dersh: “ The Constitution was not capable of resolving that issue without a war so we had indeed a constitutional crisis”
Sorry Dersh, you’ve been a law prof since before I was born, but you are wrong on this issue.
The constitution was capable of resolving slavery without a war. The Reconstruction Amendments resolved it.
But, Mosby, you say, that only happened after a war.
Well, Dersh, the war was necessary to drag the South to the table. But that’s not a defect of the Constitution. It’s a defect of the men of that time.
Secession, on the other hand, was a true constitutional crisis. And maybe that’s what Dersh means. The constitution (still!) doesn’t say you can secede, or that you can’t. And it certainly does not lay out procedures for secession. Perhaps the amendment process could be used, as there seems to be no limitation on the subject matter of amendments. But that would require more than just the seceding state to vote for secession. I don’t know enough about the makeup of Congress at the time to know if a secession amendment for all the Confederate states would have made it off the Hill; if so, maybe there might have been enough sick/tired Northern voters to say “just go!” and approve the amendment?
I still like my alternative history early Jim Crow scenario: just go straight to Jim Crow, skipping the war and failed Reconstruction. Then without the sunk cost of blood, market forces and social development could have got us from Jim Crow to effective civil rights much earlier than 1964.
JSM
I'm not wholly against birthright citizenship, but the idea that our constitution says a non-citizen pregnant woman can illegally cross the border, give labor, then return to the origin country and that baby is now a U.S. citizen does not work for me as an intended citizenship strategy.
More concerning to me is with the lack of definition of Jurisdiction, why is the MOST EXPANSIVE VIEW POSSIBLE being the interpreted and applied view? And is this not the purview of the executive to interpret and apply, until such time as congress passes appropriate laws?
Gusty, see my comments on Canada. But also Mexico and almost every other South and Central American country. Colombia is the sole exception.
Also Pakistan, Mozambique and a few other countries offer unlimited birthright citizenship.
https://www.reddit.com/r/MapPorn/comments/nn7evq/places_where_birthright_citizenship_is_based_on/#lightbox
John Henry
The phrase "subject to the jurisdiction thereof" had a clear meaning at time it was written, going back to British common law. That is- the subject (person) had a loyalty to the state (king) and the state (king) had loyalty back. In other words- not illegal immigrants openly flouting the laws. And not birth tourists, with no residency, hopping back to China after birth. And not people passing through.
I know in Britain non-subjects (remembering Britain does not have "citizens") have been prosecuted for treason- that had accepted the crown's hospitality. In the USA, that would be greencard holders. Here legally, established residency, agreed to follow the rules, and in return, allowed to stay with full legal rights. I don't know if we've ever prosecuted a non citizen for treason. With a greencard holder, it would be a no brainer- they're eligible. With an illegal immigrant? They've expressed no loyalty to the state, so they could be charged with many things- but treason would not be among them. Same with birth tourists and people passing through.
"But the one certain thing in American politics is that either particular party may ride high for a while...
But there's another certain thing in American politics thay may be at odds with the assertion above—political parties go extinct. Common wisdom often refers to the two-party system, which doesn't exist. Thanks to mandated structure of the Legislative Branch, second tier parties often form alliances with a first tier party to have an effective voice. Today, the Libertarians generally vote with the Republicans, and the Democratic Socialists (the square rounders, as I call them) follow Chuck Schumer like a cadre of robots. But sometimes they just dissolve, vanish. Whigs, Free Soilers, Know-Nothings, Copperheads, Greenbacks—the list is a long one. Nearly all have gone and have left hardly a trace of their existence, the vital interest that once united their members having evaporated like the dew. The Democrats have been around since the presidency of Thomas Jefferson, but came into their own with Andrew Jackson. Their foundational issues were the expropriation and removal of the Eastern tribes and the expansion of slavery into the Western Territories. Quite a nasty set of aspirations, if you ask me. Thanks to Reconstruction and the political incompetence of Ulysses Grant, the Democratic Party survived the Civil War with only the appearance of reform. (They could don white robes and hoods whenever necessary.) Today they're the champions of high taxes, exploding debt, and the all-powerful Administrative State. It's time for their demise.
Then HOW is that Chinese tourist "subject to the jurisdiction thereof" ??
Irrelevant.
It is the baby that is granted citizenship, not the tourist. The baby, as an American citizen, is subject to full jurisdiction of the US. Including being eligible to be drafted at 18 if male.
Are they also subject to Chines jurisdiction? That would depend on Chinese citizenship law. Does the baby become a Chinese citizen because of Chinese mother and/or father? (I don't know)
Some (many?) countries do not recognize babies born outside borders as citizens regardless of parents.
I do know that a child born to a pair of Indian tourists in the US is NOT an Indian citizen under Indian law. Thus would not be subject to Indian jurisdiction. They have some preference to becoming an Indian citizen, if they return to India but have to jump through some hoops. (I wondered about Kamala's citizenship, which is why I looked this up last year. She has US and Jamaican citizenship but not Indian as far as I could tell.)
Also, people born in Mexico, to Mexican citizen parents or others are not automatically "citizens" at birth. They are legally "Mexican nationals" under Mexican law. Nationals get passports and most rights of citizenship. But can't serve in military, work for govt, vote and a few other things. At 18, if they have behaved themselves they become "Mexican Citizens" with full rights. I don't recall if it is automatic or they have to apply.
John Henry
Brave AI saus this:
Additionally, a child born outside China with at least one Chinese citizen parent is a Chinese citizen, unless the Chinese citizen parent has settled in a foreign country and the child has acquired foreign citizenship at birth.
So maybe not the child of the tourist. Though maybe so. But a the child of a Chinese couple who are in the US illegally but with permanent intentions, would NOT be a Chinese citizen, because they are American. And NOT subject to Chinese law.
So would seem to meet the implied "only" that so many people seem to see in the jurisdiction clause. As in Only subject to US jurisdiction.
John Henry
they actually think Trump is Hitler, and Musk is stealing their Social Security.
Dumb fucks. The only way things like Social Security and Medicare survive is by taking a chainsaw to all the other garbage we blow money on.
Both the mother and father are legal, permanent residents and their child is natural born. Also, naturalized through legislative discretion.
The question is if the child is a Choice or a Person, and the legal status of the relation of the mother and father to the child. The question is if US of America is a legal jurisdiction under the Constitution or a geographical domain subject to invasion.
This isn't a tough question.
Slaves who were brought here involuntarily, and their descendants, were under the jurisdiction of the US according to both pre-war (Fugitive Slave Act) and post-war (Reconstruction) legislation. They were granted citizenship by the 14th Amendment, as were their future children.
In the days of the frontier, Indian tribes were under their own sovereign jurisdiction, and dealt with the US via treaty as putative equals. Their children were not citizens. Congress recognized the de facto conquest of Indian country back in the 1920's or whatever, and essentially annexed the tribal lands, granting citizenship to all tribal members. Indian children were automatically citizens thereafter.
Diplomats, then and now, are under their home countries' jurisdiction and immune to our jurisdiction. Their children born here are not automatically U.S. citizens.
Green-card holders and visitors with valid visas have subjected themselves to the jurisdiction of the US, and their children are citizens. If there's a problem with birthright tourists from a particular country , that can be addressed at the level of the visa-granting authorities in our embassy.
Illegal aliens are under their home countries' jurisdiction, and by entering without permission, they have refused to submit to U.S. jurisdiction. Their status is no different than soldiers of an invading enemy army. Their children born here are not citizens.
This stands up to textual analysis, original intent, and historical precedent.
JUST IN: Matt Taibbi Takes Aim At John Kerry, USAID In Direct Warning Of Threats To Free Speech
Watch watch watch. The Soviet Censorship State is real. and it must die.
Darkisland said... ( to my question)..
Then HOW is that Chinese tourist "subject to the jurisdiction thereof" ??
" Irrelevant. "
It is TOTALLY relevant..
we do NOT live in Canada (this seems to confuse you?)
we LIVE in The UNITED STATES.
and Our Constitution's amendment states that, in order to be a citizen..
Your PARENTS have to be ""subject to the jurisdiction thereof"
You KEEP quoting Canadian (and Mexican (and MadeUpVille)) law, AS IF that makes a difference HERE..
(again, it SEEMS to confuse YOU Where we are living)
If a person's PARENTS are NOT ""subject to the jurisdiction thereof"
Then, NO birthright citizenship.
I REALLY CAN'T Believe that you can't get your mind around that; and thus MUST assume that YOU are being willfully ignorant.
Again; if you CAN'T be DRAFTED, you AREN'T "subject to the jurisdiction thereof"
(and. Yes; female citizens COULD be drafted, by law)
Of course.. Details.
Is a citizen of American Samoa "subject to the jurisdiction thereof" The United States??
*i* don't know.. Let's ask the Selective Service
https://www.sss.gov/register/who-needs-to-register/
Citizens of American Samoa are nationals and must register when they are habitual residents in the United States or reside in the US for at least one year.
hmmm.. i guess NOT until they are eligible for US Citizenship.
A few years ago, a federal judge ( I don’t remember his name) wrote an essay arguing that suits seeking national injunctions should be heard only by three-judge panels. That would greatly mitigate the judge-shopping problem that we have today.
I think that the fact that a local judge in New York State had the power to imprison the President Elect of the United States of America based on a nonsense case which was carefully withheld from scrutiny by any higher court is a constitutional crisis.
Jaq, You are wrong about two things. First, the local judge did not have the power to imprison the president-elect. If he wanted to impose a sentence of incarceration, the jail time could not have started until the president left office. Two, nothing was “withheld from scrutiny by any higher court.” Trump had the right to appeal once the case was concluded, including sentencing. That’s how it works for every defendant. Why should it be different from Trump? However, you are correct that it was a nonsense case.
"Trump had the right to appeal once the case was concluded, including sentencing. "
Which the judge carefully avoided doing, for just that reason, and just as he carefully orchestrated the timing of his hearings to maximize political impact on Trump.
Question: How is a baby, considered under the jurisdiction of any government anywhere? He cannot answer for himself, by himself, in any way whatsoever. In common sense, in fact, and in law, unless removed by law, he is under the jurisdiction of his parents.
The Congress should be able to pass a law denying legal residency to the baby's parents, without saying if the kid is a citizen or not, so not constrained by the 14th. But good luck getting Congress to do anything useful.
US citizens, no matter where they live, are subject to filing an income tax form. If a person wants to assert birth citizenship then they should be fined if they did not file over all years. They should be subject to all federal laws that apply and should certainly be drafted, and if they provide aid and comfort to an enemy of the us they should be arrested for treason.
I even dislike dual citizenship, many wealthy people pay to get extra passports as a status symbol. You are either one thing or another but not both.
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