The question is not realistically subject to logical debate, and I can prove it.
Congressional Globe, May 30, 1866
Please consider the Congressional Globe, May 30, 1866.
The debate was very lively. It included discussion of gypsies, Mongols, and other terms that would be politically incorrect today.
Here are a few snips.
Senator Howard (Lead Image)
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.
I do not propose to say anything on that subject except that the question of citizenship has been discusses in this body as to not need any further elucidation, in my opinion. This amendment is simply declaratory of what I regard as the law of the land already, that every person born within the United States, and subject to their jurisdiction, is by virtue of natural law a citizen of the United States.
This will not, of course, include person born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question pf citizenship and removes all doubt as to what persons are or are not citizens of the United States.
Trump and others hinge on a ridiculous translation of the sentence in italics. Note that it is a continuous phrase qualifying “families of ambassadors or foreign ministers.”
Further discussion among the Senators also clarifies.
Senator Cowan
Senator Cowan Comments
Is the child of a Chinese immigrant in California a Citizen? Is the Child of a Gypsy born in Pennsylvania a citizen?
If the mere fact of being born in the country confers that right, then they will have it; and I think it will be mischievous.
Senator Howard Response
The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed that they be citizens.
We have declared that by law; now it is proposed to incorporate the same name in the fundamental instrument of the nation.
I voted for the proposition that the children of all parentage whatever, born in California, should be regarded as citizens of the United States, entitled to equal right of other senators of the United States.
We are entirely ready to accept the provision proposed in this amendment, that children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.
Can anyone in good faith sincerely tell me the intent of birthright citizenship was not perfectly clear in 1866?
Law of the Land Already
What did Howard mean by “law of the land already” and “incorporate the same name in the fundamental instrument of the nation.“
He was referring to the similarly worded Civil Rights Act of 1866 says “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
A Court Appointee of Reagan Correctly Blocks Trump’s Birthright Citizenship Order
Yesterday, I wrote A Court Appointee of Reagan Correctly Blocks Trump’s Birthright Citizenship Order
During a hearing on the matter, Judge Coughenour said of Trump’s executive order, “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.”
Has anyone ever heard that language about a presidential action?
One reader commented ““As far as I know not a single European country has birthright citizenship. If you can name one please do so. The 14th amendment may be ambiguous on this issue or maybe clear based on your view of case law, but it is a terrible policy as currently practiced.”
Above, I presented a “clear case” only parts of which my friend has seen before. Hopefully it is crystal clear now, historically speaking, of the full debate that took place and the intent of the amendment.
Moreover, it’s imperative the law be practiced as is. I will get to why in a moment. However, I concede that a very good case can be made for changing the law. Those are two different ideas.
All I have tried to do so far, is state the legal case. And the legal case is constitutionally clear by any reasonable interpretation.
To repeat: Judge Coughenour said of Trump’s executive order, “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.”
Everything else is a side show.
To My Friend
How does Europe matter? Is Spain or Germany now the model for US law? Have you been following recent Freedom of Speech (lack thereof) actions in the UK and Germany?
But to address your question with a question: How many European countries were founded by people from multiple countries crossing the ocean to escape persecution of whatever?
That is the basis for the 14th amendment. There have been 6 challenges to the 14th and all of them failed.
The Supreme Court does not and should not decide cases on what it believes to be poor law or even a “terrible law as practiced”.
TikToc is an excellent case in point. On very narrow grounds, the SC ruled 9-0 the TikToc ban passed by Congress and signed by Biden was constitutional. That means Trump had no legal authority to suspend the ban. So twice now, already, Trump has taken two blatantly unconstitutional or illegal actions.
I believe taking down TikTok was wrong. I find the idea that TikTok is a national security threat is essentially a joke. Others are free to disagree.
But recall that the TikTok law arose because Trump’s initial executive order failed in the courts.
But now, Trump does not like the law he is responsible for. So he banned enforcement of the TiKTok law with no legal authority to do so.
It is precisely these kinds of actions Trump fans blasted Biden over.
Hypocrites cheer. And the MAGA fans cheer Trump’s threat to put 25% tariffs on Mexico and Canada. That’s another illegal action because USMCA passed 89-10 in the Senate, and the Senate has constitutional authority to approve treaties.
February 1 will be interesting. If Trump puts tariffs on Canada and Mexico it will be in direct violation of a treaty that Trump himself negotiated.
Canada may respond with an export ban or export tax on Canadian crude. Let’s have the global trade war and see what happens.
Some people don’t like the 14th Amendment. Fine. I understand why. But it made perfect sense at the time (many if not most will say it still does). Regardless, that interpretation has been challenged and failed 6 times already, so don’t pretend Trump is making some brilliant argument.
The Constitution must be changed legally, not by “blatantly unconstitutional order.”
Today, someone called me an “unamerican fagg*t” for writing what I did. I am used to this. It has happened many times before. Some people prayed I would be tortured to death. Lovely.
Q: Is there a case for changing the Constitution?
A: Yes. However, there is zero chance of that.
So, Trump decided to break the Constitution just as Biden did with student debt.
Trump refuses to honor the TikTok law he is essentially responsible for. And now he threatens to break his own “best deal in history” USMCA law.
Those are the facts. Here’s another: Hypocrites cheered Biden and now they cheer Trump. Very few people really want to see the Constitution or laws upheld. They only want laws upheld when they agree with them.
This should easily be a 9-0 Supreme Court ruling. Perhaps we see some tortured opinion that makes it 6-3 but I rather doubt that given the clear District Court ruling and the Congressional Record that I posted above.
Perhaps the SC just upholds the Appeals Court ruling as obvious without taking the case because like it or not, it is obvious.
Q: Could we improve the 14th amendment?
A: Yes, we could improve the wording.
But we won’t.
Obviously, this confirms me an “unamerican fagg*t” who should be tortured to death, by the Right and Left, simply because I did not take an extreme position one way or another.
All of which makes me proud of my vote. I wrote in Mish for President. That’s a decision that’s looking better and better every day.
A Terrible Policy as Currently Practiced?
I can easily see why some people would believe that. But they are wrong.
This is a subject that came up with other friends of mine, one of whom has argued many cases before the Supreme Court.
Friend One (studied law but is not a lawyer):
I am not a lawyer, but I am very much an originalist (and that makes you put a lot of emphasis on the text as written at that time). To me this a clear put down on Trump. Too much time has passed and society and the government has had a common shared view on this for many, many decades. In a logical world this should be 9-0.
Friend Two (Constitutional Expert):
Well, you have stated very well the rationale that underlies the doctrine of res judicata. Generations of immigrants — and by extension, their offspring — have literally for hundreds of years relied on the common understanding of the law. Even if that was technically wrong in retrospect, res judicata says that you cannot unsettle the lives of law-abiding people who have relied on what the courts said the law was. I cannot think of a clearer case for its application.
It would open a hornets’ nest, since most 19th century immigrants were never naturalized — it was understood that one’s kids were Americans by birthright — and thus most of the US population would be rendered aliens. We have no precedents to deal with this and it would be a total judicial mess.
Look at the Constitution itself. It plainly requires that: No Person except a NATURAL BORN Citizen . . . shall be eligible to the Office of President.” So the concept of a person being a “natural born” American is right in the Constitution.
Res Judicata
Res judicata refers to the principle by which one judgment has a binding effect on subsequent proceedings.
My friend comments “I cannot think of a clearer case for its application.”
This might even apply to me. My grandfather came over on a boat. My father was born here. Was he a citizen by birth? If not, then arguably neither am I.
Recent cases may be easier to understand. What about a couple who came into the US illegally 25 years ago at age 35? They had kids who are now suddenly not citizens. Those kids might have kids who are not citizens then either.
Q: Is the Supreme Court really going to mess with this? Let Trump say it only starts now?
A: No and No.
This is so damn clear that I suspect Trump may not even appeal just so he can piss and moan about a bad court ruling for the next 4 years.
But I hope he does appeal. I look forward to a 9-0 ruling.
Meanwhile, I wait to see whether or not Trump is really going to violate the USMCA treaty he himself negotiated as “the best trade deal in history”.
For discussion, please see Trump Renews Threat of 25 Percent Tariffs on Canada and Mexico
If Trump is indeed stupid enough to break his own USMCA deal, not a single country could ever trust entering a deal with Trump.
Perhaps they shouldn’t anyway. And the same obviously applies to Biden.
Trump “Will Demand Interest Rates Drop Immediately”
Also please see Economically Clueless Trump “Will Demand Interest Rates Drop Immediately”
With his video address to Davos today, Trump proves he is economically clueless.
Trump’s speech at Davos was truly pitiful.
However, Biden and Harris are both so bad that I still prefer dealing with Trump.
Finally, this extremely painful nonsense was expected, which explains my vote.
Addendum
Many people are trying to debate what they believe are the merits (or lack thereof) of the 14th Amendment. One idiot said the 14th was never ratified was never ratified.
Merit is not the issue. The text of Senate debate unquestionably shows the complete intent. The exchange by Senator Howard clarifies everything. Birthright citizenship was the law of the land via the Civil Rights Act of 1866.
Q: Why did Howard propose a Constitutional Amendment?
A: To purposely make the law very difficult to change.
The law was upheld many times, especially United States v. Wong Kim Ark 1898, and Regan v. King 1943 as cited by Judge Coughenour.
Once again, I point out Coughenour’s statement “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is. This is a blatantly unconstitutional order.”
The intent of the law is proven history, the court has upheld the law numerous times, and there is obvious Res Judicata on top of it all.
Trump was smacked hard by Coughenour, and deservedly so if you at all believe in the Constitution. The text and intent of the law is not subject to logical debate any more than debating the Flat Earth Society.
You may not likely this, but it is. If Trump wants to change the Constitution he needs to do so in a legal fashion. It is his right to ask Congress to propose a Constitution amendment of his liking.
And if he wants to waste time and energy, he can try. His base will cheer. So will Democrats (despite their howls), because such a bill has zero chance of passing the Senate, and zero chance of being ratified if it did.
This case is closed. But you are free to believe what you want, no matter how illogical, just like Trump and Biden.
Addendum II
An actual case for Res Judicata in real time.