Peter Schuck in the NYT w/ the definitive word on birthright citizenship

[oxcoug]

The most thoughtful commentary I've seen to date on this discussion from Peter Schuck of NYU Law (Peter's also one of the instrumental early advisers to my company and one of the most remarkable minds I've ever been around).

His solution is so obvious and so practical that it's almost painful to realize it's been absent from the public debate so far.

http://www.nytimes.com/2010/08/14/op...k.html?_r=1&hp

Key excerpts:

***"The clause’s purpose was to guarantee citizenship for former slaves — a right Congress had enacted in 1866 — and to overrule the infamous Dred Scott decision, which had denied blacks citizenship and helped precipitate the Civil War.

But the clause also excluded from birthright citizenship people who were not “subject to the jurisdiction thereof.” This exclusion was primarily aimed at the American-born children of American Indians and foreign diplomats and soldiers, categories governed by other sovereign entities."

***By 1868, Congress had come to view citizenship as a mutual relationship to which both the nation and the individual must consent. This explains why it passed — one day before the citizenship clause was ratified — the Expatriation Act, allowing Americans to shed their American or foreign citizenship.

***Fortunately, these strongly competing values, combined with the notion of mutual-consent citizenship, suggest a solution: condition the citizenship of such children on having what international law terms a “genuine connection” to American society.

This is already a practice in some European countries, where laws requiring blood ties to existing citizens have been relaxed to give birthright citizenship to children of illegal immigrants who have lived in the country for some time — Britain, for example, requires 10 years and no long absences from the country.

[RobinFinderson]

I don't know oxycoug, it seems pretty heartless to deny citizenship to little babies because of something their parents did.

Here is a question... would this dude's interpretation mean that legal aliens on a weekend vacation to the states could still drop anchor babies? Sounds like a system one could easily abuse.

[oxcoug]

I don't know oxycoug, it seems pretty heartless to deny citizenship to little babies because of something their parents did.

Here is a question... would this dude's interpretation mean that legal aliens on a weekend vacation to the states could still drop anchor babies? Sounds like a system one could easily abuse.

No one's suggesting it be denied because of something their parents did. And no - his interpretation wouldn't allow for that. Doesn't seem like you read the article Robby -).

What he is suggesting - but much more than "suggesting" as it's explicit in the language of the 14th amendment itself - is that the whole notion of "birthright citizenship" very deliberately excludes people who not "subject to the jurisdiction" of the United States - as he notes "this exclusion was primarily aimed at the American-born children of American Indians and foreign diplomats and soldiers, categories governed by other sovereign entities."

So no one's saying "punish the children" - he's saying as children of unnaturalized foreign citizens, the children of illegals are not subject to the jurisdiction of the United States.

He notes, furthermore, that birthright citizenship was conceived with a specific group in mind - slaves and the children of slaves - and that the authors of the 14th amendment never would have envisioned the current misapplications of their language.

I expect it will be inconvenient for some that this comes from a very prominent center-left member of the Yale and NYU law faculties and not from an easily caricatured southerner.

[RobinFinderson]

No one's suggesting it be denied because of something their parents did. And no - his interpretation wouldn't allow for that. Doesn't seem like you read the article Robby -).

What he is suggesting - but much more than "suggesting" as it's explicit in the language of the 14th amendment itself - is that the whole notion of "birthright citizenship" very deliberately excludes people who not "subject to the jurisdiction" of the United States - as he notes "this exclusion was primarily aimed at the American-born children of American Indians and foreign diplomats and soldiers, categories governed by other sovereign entities."

So no one's saying "punish the children" - he's saying as children of unnaturalized foreign citizens, the children of illegals are not subject to the jurisdiction of the United States.

He notes, furthermore, that birthright citizenship was conceived with a specific group in mind - slaves and the children of slaves - and that the authors of the 14th amendment never would have envisioned the current misapplications of their language.

I expect it will be inconvenient for some that this comes from a very prominent center-left member of the Yale and NYU law faculties and not from an easily caricatured southerner.

I pointed this out the last time you brought up this subject, and I don't think you responded, but if you were to visit any federal penitentiary, you would find a host of non-citizen prisoners. How can that be when they are not subject to the jurisdiction of the United States? When an indian is off the rez, he is definitely subject to US jurisdiction. Maybe you haven't watched enough Law and Order, but from that show I learned that foreign diplomats can literally get away with murder, because they are not subject to US jurisdiction. I thought that it was special cases like these to which that portion of the 14th amendment was referring.

[Green Lantern]

Thanks for posting. That's a very interesting proposal.

[pellegrino]

I pointed this out the last time you brought up this subject, and I don't think you responded, but if you were to visit any federal penitentiary, you would find a host of non-citizen prisoners. How can that be when they are not subject to the jurisdiction of the United States? When an indian is off the rez, he is definitely subject to US jurisdiction. Maybe you haven't watched enough Law and Order, but from that show I learned that foreign diplomats can literally get away with murder, because they are not subject to US jurisdiction. I thought that it was special cases like these to which that portion of the 14th amendment was referring.

I saw that episode too, brilliant, just brilliant.

[oxcoug]

I pointed this out the last time you brought up this subject, and I don't think you responded, but if you were to visit any federal penitentiary, you would find a host of non-citizen prisoners. How can that be when they are not subject to the jurisdiction of the United States? When an indian is off the rez, he is definitely subject to US jurisdiction. Maybe you haven't watched enough Law and Order, but from that show I learned that foreign diplomats can literally get away with murder, because they are not subject to US jurisdiction. I thought that it was special cases like these to which that portion of the 14th amendment was referring.

It's noted that my education needs some heavy doses of Law & Order.

But the exclusion doesn't just cover foreign diplomats, it also covered American Indians who were largely - in 1968 - under a jurisdiction other than that of the United States government. Illegal immigrants who give birth to their children in the US (a different case, mind you, from legal immigrants who give birth to their children in the US) are not under US jurisdiction as their being in the US didn't meet the consensual criteria understood in/by the 14th Amendment. Those immigrants have far more tenuous claim to American citizenship than American Indians and the children of foreign diplomats.

[il Padrino Ute]

It's noted that my education needs some heavy doses of Law & Order.

Well, Hollywood is the authority of all things political. Everything it does is based on true events with very little deviation from actual events.

[Jacob]

I'd say the guy in the Op-Ed offers a reasonable solution to the problem, if such a solution were allowed under the US Constitution.

However, he hasn't made a compelling case as to the original meaning of the 14th amendment language.

When the language is clear, you apply it as written. Here, all who are born in the US are citizens, unless they are not subject to the jurisdiction of the US. In the Op-Ed, I think he actually is making the case that the illegal children should get citizenship, because they are not very similar to Indians, diplomats, or soldiers--the people who the writer claims is the intended "not subject to the jurisdiction thereof."

I really don't know, having not looked into it, but I'd need better evidence that these children fall under the exception rather than the rule.

[RobinFinderson]

It's noted that my education needs some heavy doses of Law & Order.

But the exclusion doesn't just cover foreign diplomats, it also covered American Indians who were largely - in 1968 - under a jurisdiction other than that of the United States government. Illegal immigrants who give birth to their children in the US (a different case, mind you, from legal immigrants who give birth to their children in the US) are not under US jurisdiction as their being in the US didn't meet the consensual criteria understood in/by the 14th Amendment. Those immigrants have far more tenuous claim to American citizenship than American Indians and the children of foreign diplomats.

I'm not sure how the American Indian example applies to illegal immigrants. American Indians were promised a degree of sovereignty in recognition of their unique status as the original Americans who were displaced to make way for the rest of us. This was a bone, thrown out of guilt for decimating their populations and taking their land. Even today, on the rez, we are all subject to tribal jurisdiction. I don't know if it was a racist rumor or truth, but growing up in Montana, it was widely reported that a non-indian had to be damn careful about the law when spending any time on the reservations, because if you wronged someone, tribal law always broke in favor of the indian. So how exactly does this indian sovereignty relate to illegals? And if illegals aren't subject to our jurisdiction, then why are there so many of them in our prisons?

What exactly is this consent thing? I still don't get it. How does a baby consent to be a citizen? I don't remember consenting to anything when I was born, but I must have, because I have a US passport.

[oxcoug]

[quote from Jacob: However, he hasn't made a compelling case as to the original meaning of the 14th amendment language.

When the language is clear, you apply it as written. Here, all who are born in the US are citizens, unless they are not subject to the jurisdiction of the US. In the Op-Ed, I think he actually is making the case that the illegal children should get citizenship, because they are not very similar to Indians, diplomats, or soldiers--the people who the writer claims is the intended "not subject to the jurisdiction thereof."]

I really don't know, having not looked into it, but I'd need better evidence that these children fall under the exception rather than the rule.[/quote]


I think maybe you didn't read the whole article?

He makes three critical points about what was intended in 1868:

1. The language itself opens the exceptional "under the jurisdiction thereof" space which excludes the children of foreign nationals born in the US - illegal citizens ARE foreign nationals, they hold foreign passports and they are under the primary jurisdiction of their home countries

2. He points out - as we all already knew - that there was no consideration given to what to do with the children of illegal immigrants because there was, at there was no such thing - as such the 14th amendment isn't, in itself, adequate to deal with what we face today

3. He points out the Congress and the US government had "come to view citizenship as a mutual relationship to which both the nation and the individual must consent." This is overlooked but absolutely central - "mutual consent" means that if the US government hadn't consented to you being there then you weren't a citizen and the 14th amendment didn't apply to you.

[oxcoug]

I'm not sure how the American Indian example applies to illegal immigrants. American Indians were promised a degree of sovereignty in recognition of their unique status as the original Americans who were displaced to make way for the rest of us. This was a bone, thrown out of guilt for decimating their populations and taking their land. Even today, on the rez, we are all subject to tribal jurisdiction. I don't know if it was a racist rumor or truth, but growing up in Montana, it was widely reported that a non-indian had to be damn careful about the law when spending any time on the reservations, because if you wronged someone, tribal law always broke in favor of the indian. So how exactly does this indian sovereignty relate to illegals? And if illegals aren't subject to our jurisdiction, then why are there so many of them in our prisons?

What exactly is this consent thing? I still don't get it. How does a baby consent to be a citizen? I don't remember consenting to anything when I was born, but I must have, because I have a US passport.

The American Indian application is this:

Defenders of Birthright C. like to pretend that the 14th amendment established universal citizenship for anyone born in the United States. It didn't. In fact it excluded members of a group - the children of people born inside the territory of the US who's parents were also from that territory - who obviously have a more natural claim to citizenship than the children of people who don't come from the territorial U.S.

So the myth of universal inclusion under the 14th amendment is exploded right out of the gates by the American Indian exclusion.

And if anyone at all is excluded then it's certainly an openended question as to whether the children of people in the country illegally would be included.

[Jacob]

[quote from Jacob: However, he hasn't made a compelling case as to the original meaning of the 14th amendment language.

When the language is clear, you apply it as written. Here, all who are born in the US are citizens, unless they are not subject to the jurisdiction of the US. In the Op-Ed, I think he actually is making the case that the illegal children should get citizenship, because they are not very similar to Indians, diplomats, or soldiers--the people who the writer claims is the intended "not subject to the jurisdiction thereof."]

I really don't know, having not looked into it, but I'd need better evidence that these children fall under the exception rather than the rule.

I think maybe you didn't read the whole article?

He makes three critical points about what was intended in 1868:

1. The language itself opens the exceptional "under the jurisdiction thereof" space which excludes the children of foreign nationals born in the US - illegal citizens ARE foreign nationals, they hold foreign passports and they are under the primary jurisdiction of their home countries

2. He points out - as we all already knew - that there was no consideration given to what to do with the children of illegal immigrants because there was, at there was no such thing - as such the 14th amendment isn't, in itself, adequate to deal with what we face today

3. He points out the Congress and the US government had "come to view citizenship as a mutual relationship to which both the nation and the individual must consent." This is overlooked but absolutely central - "mutual consent" means that if the US government hadn't consented to you being there then you weren't a citizen and the 14th amendment didn't apply to you.[/QUOTE]

I read it, and I didn't find it convincing. Why should we think that a hispanic child born here falls under the classification "not subject to the jurisdiction thereof?" How are they similar to indians, diplomats and soldiers? Does it depend on whether foreign law grants them citizenship by birthright? What if it doesn't?

I don't really care how congress came to view citizenship in 1898. It's not necessarily congress's meaning that concerns me. We are talking about a constitutional amendment passed directly by the people of the states.

Finally, if, as the writer states, that language was intended to reverse the ruling in Dred Scott, is that so different than a birthright citizenship case? In Dred Scott the court ruled that the black man was still subject to the jurisdiction of the slave state he left rather than the territory he entered. I can see some similarities with a person born here to illegal parents. If the amendment intended to overrule that, I think it speaks for the birthright citizenship.

Just to clarify, I find myself on the law enforcement side of this issue. IOW, I think we ought to 1st secure the border, then talk about what needs to be done about illegals.

[oxcoug]

I think maybe you didn't read the whole article?

I read it, and I didn't find it convincing. Why should we think that a hispanic child born here falls under the classification "not subject to the jurisdiction thereof?" How are they similar to indians, diplomats and soldiers? Does it depend on whether foreign law grants them citizenship by birthright? What if it doesn't?

I don't really care how congress came to view citizenship in 1898. It's not necessarily congress's meaning that concerns me. We are talking about a constitutional amendment passed directly by the people of the states.

They aren't similar - that's the whole point. They would have LESS rights, not MORE than people who are lawfully born in the US.

Finally, if, as the writer states, that language was intended to reverse the ruling in Dred Scott, is that so different than a birthright citizenship case? In Dred Scott the court ruled that the black man was still subject to the jurisdiction of the slave state he left rather than the territory he entered. I can see some similarities with a person born here to illegal parents. If the amendment intended to overrule that, I think it speaks for the birthright citizenship.

Not really clear on where you're going with this line of thought. How is it so different? Because the 14th was fundamentally focused on correcting a single, confined, colossal national wrong - and it's not a clean line of legal logic of a constitutional correction on the rights of slaves who came to the US against their will to the rights of a category of people that Congress, the SCOTUS and the US people hadn't even imagined yet, let alone debated.

[Jacob]

They aren't similar - that's the whole point. They would have LESS rights, not MORE than people who are lawfully born in the US.




Not really clear on where you're going with this line of thought. How is it so different? Because the 14th was fundamentally focused on correcting a single, confined, colossal national wrong - and it's not a clean line of legal logic of a constitutional correction on the rights of slaves who came to the US against their will to the rights of a category of people that Congress, the SCOTUS and the US people hadn't even imagined yet, let alone debated.

If they aren't similar to those exempted from the general rule of birthright citizenship, then that cuts against your argument.
But again I'd like to see more on the meaning of 'subject to the jurisdiction thereof'.

As for your other point, whether they intended it, you and I can't really say, but the best evidence of intent is the actual language. In this case it it pretty clear you are either 1. Born a citizen or 2. You were not subject to the jurisdiction of the US at the time of your birth.

If they didn't intend it to mean what it clearly says, then the way to remedy that is by constitutional amendment.