"If our understanding of the rule fails to account for that, then that understanding cannot be right.
But our account of the rule does extend birthright citizenship to the newly freed people. To reiterate, by social compact, we do not mean the explicit consent from both parties to citizenship as would be required for a contract between private parties. We mean that allegiance of some kind has been exchanged for protection, remedying the defects of the state of nature. Any child born to someone who had entered into that kind of social compact with America would be a citizen.
The newly freed people obviously qualify. In our view, enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless. It was a failure on America's part that it did not provide the protection that it owed in return for that allegiance...."
There's a lot more to the Barnett and Wurman response, and
here's my post from 3 days ago linking to their original NYT piece.
पोस्ट्स
३३ टिप्पण्या:
Anyone on either side who says "This is an easy one" or similar quip is full of baloney. The two cases from long ago are somewhat contradictory and not one legal case has reached a higher court that reconciled applying the 14th Amendment to "birthright citizenship." That was a concept introduced to the immigration mess in Ted Kennedy's 1965 Immigration and Nationality Act.
THAT was where the anchor baby concept was born and began to take root, but it has never been challenged in SCOTUS, and really we have no idea what arguments could or will sway Roberts and Barret, while we can be pretty sure nothing will sway the Left Bloc to end it.
It's an absurd argument - substituting a clear rule "subject to it's jurisdiction" for an abstract concept of "a social compact".
There is, in theory, a social contract one makes which forms the basis for democratic institutions. But no actual person has ever signed a social contract, it's a pure abstraction. Many people would reject that social contract under the present terms if it were offered to them. There is no criteria for determining whether someone has partaken in a social compact or not.
What is absolutely clear, is whether someone is "subject to the jurisdiction". The legal concept of jurisdiction is well-developed and is litigated all the time. It would be crazy to substitute a novel abstract concept for a clear, consistent, and text-based interpretation.
The slaves, indentured servants, and similar classes were already permanent legal residents, if not citizens, whose sentences were commuted and their rights restored under the Emancipation Proclamation.
The only way to reconcile the "one toe" citizenship act is to open the border to all prospective toes, perhaps a pinky, too.
The first heartbeat is well past conception, and is self-evident, and scientifically established in the birthing process.
I think the social compact argument--not a contract--makes a lot of sense. The known exceptions--children who might be granted citizenship, but are not--make thinks clearer. Also Congress controls naturalization, and this implies that they can define "subject to the jurisdiction of": residency requirements, etc.
Despite Justice Taney's claim that blacks had "no rights which the white man was bound to respect", to kill a slave was legally murder. Therefore, while it is politically correct to say that they "were not afforded the protection of the law", it is factually incorrect.
That's weird. the word "murder" in my previous post is a hyperlink. And if you hover the cursor over it, that becomes clear. But it is not showing as blue text. I think blogger must be going through menopause.
"What is absolutely clear, is whether someone is 'subject to the jurisdiction'."
For Heaven's sake. It's not absolutely clear what it means in this context. That's the basis of the entire issue.
more murder.
By turning the US into an oppressive, economically barren theocracy, Trump has substantially reduced the number of migrants seeking to enter the country.
By turning the US into an oppressive, economically barren theocracy, Trump has substantially reduced the number of migrants seeking to enter the country.
Help! Help! I'm being oppressed! I can't do a weenie-wave in the YWCA girls' locker room any more!
By turning the US into an oppressive, economically barren theocracy, Trump has substantially reduced the number of migrants seeking to enter the country.
A lapsed-Presbyterian, non-denominational-Christian theocracy building humanoid robots with high-level AI. That's what we've come to.
Abacus Boy, (Kak) LLR-democratical Rich's rhetorical descent would be sad if it just wasn't so gosh darn FUNNY!
LOL
Since Abacus Boy depends entirely, Harry Sisson-like, on New Soviet Democratical talking points and the horrific New Soviet Democraticals are mired in the low 30's in opinion polls the New Soviet Democraticals can no longer censor, LLR-democratical Rich continues to flail and drown.
Its magnificently glorious to behold. Its like the end of LLR-democratical Chuck right before he spittle-flecked screamed at Althouse for the last time and ran crying out of the blog room and no doubt retreated to his meds and pitchers of gin and tonics.
One wonders how far behind Richie and LLR-democratical lonejustice (Chuck's blog compatriots and fellow FakeCons) can be to the same fate?
^^ Classic Trump 12D chess moment!
Still waiting for an explanation about how the baby being "subject to the jurisdiction" changes with whether the parents are legal or illegal.
John Henry
Poor Abacus Boy. STILL no new New Soviet Democratical talking points.
The cupboard remains bare.
I had mentioned that Canadian law grants birthright citizenship to babies born in Canadian airspace even if the plan doesn't touch down. This seems to be written into Canadian law.
I had assumed it was different in the US but realized that I should not assume. I asked Grok 3 is a baby born in US airspace to a Mexican citizen flying nonstop from Mexico to Canada would be a US citizen.
Grok says yes, though it has never been tested, as long as the plane is no more than 12 miles high it is in the US. It cites case law that if the woman had committed a crime on the plane, she would be subject to US law.
Grok says so, it must be true! (Right?)
John Henry
"By turning the US into an oppressive, economically barren theocracy, Trump has substantially reduced the number of migrants seeking to enter the country."
I don't care what their rationale is, don't care what they think about our country. As long as they stop invading, I'm good.
BTW, when is the white liberal exodus to Canada ever going to start? Maybe one of the NGOs can be re-purposed to assist all of those oppressed folk.
Come on, John Henry, you've already had that. The baby is under the control of the parents and has no agency for itself. If the parents aren't under the jurisdiction thereof neither is the baby.
Or are you in favor of all babies born to illegal immigrants and birth tourists be taken away from the mother and raised in government orphanages so they can be under the jurisdiction thereof?
Grok says yes, though it has never been tested, as long as the plane is no more than 12 miles high it is in the US. It cites case law that if the woman had committed a crime on the plane, she would be subject to US law.
Didn't find that in previous readings and research, but did find that babies born in territorial waters to non-citizens aren't citizens- requires being on terra firma. I imagine the same applies to aircraft. Found that when I was theorizing birth cruises as a form of birth tourism. Can't happen, gotta be off the ship.
"What is absolutely clear, is whether someone is "subject to the jurisdiction"" Except when the only relevant jurisdiction is the ability to exclude the alien at will. The Constitution does not and should not require the absurd: that by breaking the law an alien unconnected to the U.S. can achieve the supreme American legal benefit.
Gospace: “ Or are you in favor of all babies born to illegal immigrants and birth tourists be taken away from the mother and raised in government orphanages so they can be under the jurisdiction thereof?”
This would be an interesting application of my American Janissary concept.
JSM
"By turning the US into an oppressive, economically barren theocracy, Trump has substantially reduced the number of migrants seeking to enter the country."
Looks like Kaki got his USAID funding cut.
Gospace said...
Or are you in favor of all babies born to illegal immigrants and birth tourists be taken away from the mother and raised in government orphanages so they can be under the jurisdiction thereof?
Yes, if the mothers do not want to take the baby with when they get deported.
I would favor adoption but orphanages and foster care are certainly options.
I feel really strongly about birthright citizenship and keeping it as is.
Enforcing the law about deporting the mother and other non-citizen family members. And exploding, loudly and publicly, the myth of anchor babies. That there is no legal provision granting the mother any rights to stay because of the citizen baby.
How many women would come to the US to have their baby if they knew they could not stay? I suspect it would be low thousands. I could certainly live with a few thousand citizen babies. Maybe count them against the total of legal immigrants.
John Henry
2/18/25, 3:13 PM
What if the baby is born on a cruise ship on a lake entirely surrounded by land, like Lake Tahoe.
John Henry: to follow up on removing the anchor-baby incentive:
Nothing really stops ICE from doing the same thing to county clerks that they’re doing with jails: scouring the birth certificates for illegal alien parents. Big Balls could do big data to compare the certs to immigration records. Slightly more sophisticated data mining, incorporating other public records, could pick up patterns indicative of illegality. Trumpy negotiation with source countries could get us databases of their Matriculas Consulares and other pseudo-ID’s.
Once a few mums get questioned about their kids’ birth certificates, they’ll stop getting them.
And then there will be no proof the kid was born here.
No legal ruling on birthright citizenship needed.
JSM
J Scott said...
What if the baby is born on a cruise ship on a lake entirely surrounded by land, like Lake Tahoe.
Or on the Staten Island Ferry? Where you embark and disembark on US soil. All kinds of one a kind theoretical events could be imagined. The law says - on terra firma. Well, I think it says land... whatever.
So- not a citizen if born of foreign parents.
John Mosby, sounds good to me. Enforcement, enforcement and more enforcement seems to be the answer. We seem to have all the laws we need. If we need more or existing laws need to be tweaked or reenforced, do so.
The baby would still be a citizen, even if not registered with a birth certificate. The hospital would probably have a footprint or fingerprint.
If the baby comes back later and can prove birth in the US, allow them citizenship. Deport the mother.
John Henry
Gospace and J Scott
Every square inch of Lake Tahoe is in the jurisdiction of Placer or Eldorado Counties, California or Washoe, Carson or Douglas Counties, Nevada. It's not some sort of apolitical wilderness.
Tom Locker said...
But that's not the point. Every square inch of territorial waters is not some sort of a political wilderness. That would be 12 miles out from the cost. But it doesn't count for birthright citizenship- it's not land. J Scott brought up an interesting point. Another exception to birthright citizenship- how far does it extend? There are bunches of exception currently in law- territorial waters, American Samoa and Swain's Island, and a few others.
John Henry, I think your "but the baby is under the jurisdiction" argument fails for the reasons, as I understand them, advanced by Barnett and Wurman. Due to their enslavement, Africans and more importantly their descendants could never have given consent to any social arrangement that resulted in their slavery. (I don't think anybody seriously contested the idea that freed blacks who were either naturalized or born to citizen parents were citizens, unlike tribal Indians.) The issue post-1864 was how to avoid allowing that lack of consent, i.e. naturalization, from being weaponized against the newly freed slaves to continue to deprive them of the protection of the US government. As I commented in the prior thread, they were brought here and their children kept in slavery "under the jurisdiction" of the United States and the slave states. This is a distinctly different situation of agency from a woman who enters this country of her own volition presumably knowing that she is violating our entry laws and subsequently giving birth. (This does make 'birth tourism' more likely to be protected but potentially resolvable by appropriate legislation.)
Citizenship is an interesting game to play. In forced slavery, and in native births to illegal immigrant parents, it seems best not to play at all if citizenship is not immediately recognized. With slaves, the allegiance of the former slaves upon being freed definitely deserves a grant of citizenship, also to enforce the end of slavery and to recognize their forced presence here. With the native births to visitors, the allegiance seems to be lacking, and the commensurate citizenship therefore seems to be a bit more questionable.
I suspect birth citizenship will remain, and border enforcement will be recognized as the best means to limit it among those visiting to achieve that sole purpose. And then we'll have horror stories of birth on the bridges over the Rio Grande, just the other side of the middle.
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