Dafydd, if you're going to get into interpretations of why the framers wrote what they did I can guarantee you the concept of an anchor baby wasn't on their minds.

Whether or not the amendment is being appropriately applied is sort of moot; it ought to be changed. Citizenship shouldn't be something we take so lightly as to hand out the way we do now.

As far as I know, no other nation on earth use both the rule of country of birth and the rule of blood in automatically bestowing citizenship. Given the abuse of anchor babies, the rule of country of birth needs to be narrowed to children of parents legally residing in our country.

Dafydd, I can't resist sticking my nose in where I am much less informed than you are, but it would seem to me that you have analyzed it properly. It is my understanding, of the present laws, that in order to stop children of illegal aliens from from automatically becoming citizens when born in the United States, the Fourteenth Amendment would need to be overturned. I don't see that happening, but I freely admit that I have guessed wrong on what the Supreme Court would decide on many issues, so I suppose anything is possible.

You wonder how the illegal aliens are not "subject to the jurisdiction" of our laws. Let's see, now. They don't have Social Security numbers, don't pay FICA or Medicare taxes, don't pay federal income tax, don't pay state income tax, have immunity for certain crimes (e.g., being in the country illegally), don't obey the minimum wage laws, among others. Does that maybe explain Sen. Kyl's reasoning to you?

You wonder how the illegal aliens are not "subject to the jurisdiction" of our laws. Let's see, now. They don't have Social Security numbers, don't pay FICA or Medicare taxes, don't pay federal income tax, don't pay state income tax, have immunity for certain crimes (e.g., being in the country illegally), don't obey the minimum wage laws, among others. Does that maybe explain Sen. Kyl's reasoning to you?

I agree with your parsing, Dafydd. As much as I'd like to say it would be simple, it doesn't seem that way to me.

It's worth noting that in spite of the clear meaning of the words of that amendment, the intent (which is quote reasonably and correctly not accepted in courts) was simply to ensure that no native-born black slave could be denied citizenship.

I do think that it would be a Very Good Idea to get rid of "anchor babies." But the language of this amendment is clear (even if it's clearly wrong for its intended purpose), and it absolutely will take another amendment to correct it.

Oh, and mxzptlk: you're wrong. Sorry. Jurisdiction doesn't require any of those things. It simply means that we can enforce our laws against 'em. (And no, they do NOT have immunity for certain crimes; we simply can't enforce our laws on those crimes.)

I agree that a literal reading of the Fourteenth Amendment requires anchor babies to be guaranteed citizenship. However, there is a real question as to whether the intent was to cover people who aren't supposed to be here, solely because they too are technically subject to jurisdiction here.

Maybe we CAN enforce our laws against them, but we sure DON'T enforce our laws against them. De facto, they might as well be diplomats, which goes back to the distinction Dafydd was asserting.

Is it possible that the clause "and subject to the jurisdiction thereof" may have been referring to Native Americans? After all, at the time of the writing of the 14th amendment many Native Americans had been born in the United States, but were not subject to the laws thereof (just ask Custer).

I do believe, though, that it should be a basic human right to be welcome in the place you are born, unless you have renounced your citizenship. This should be the case regardless of the crimes of your parents.

Two observations 1)It seems that the idea that illegals are not now subject to US law has become ingrained among many in the United States.For example, the Minneapolis police department declined to get involved in investigating a forced prostitution ring because the victims were illegal aliens.I also recall hearing about a case a while back where the ACLU sued some city (in Ohio, I think) because they arrested some illegals aliens who were involved in a brawl.As best I can recall, the ACLU argued that they could not be arrested because they weren't subject to US law.This leads to observation #2: Should this belief-as exemplified by the Minneapolis police department and the ACLU-that illegal aliens aren't subject to US law ever be quashed either by congress or the supreme court-The ACLU will be suing the very next day arguing that illegal aliens are ALREADY citizens of the United States because they are subject to US law.

Speaking of MEDVED. I wish he was on more stations. He is a fresh of breath air. Reasoned conservative debate.

As someone that has a law degree, not that means much we just look it up lol, I think it is clear we would need a Const Amendment to change birthright citzenship.

ALso people need to recognize that besides my State of Louisiana that operates off the Sane Civil law system , the UNited States come from a common law tradition.

That Common law tradition was never challenged and is part of our English and YES American heritage.

IN fact in the Supreme Court Case in the WOng Case I think in 1898 said the 14th amendment conferred the common law practice of BIrthright citizenship. SO with all respect to Sen Kyl I think this has been settled.

HEre is good piece that goes into the famous Calvin Case
http://www.emory.edu/EMORY_REPORT/erarchive/1996/October/ERoct.7/10_7_96price_questions.html

TO say the least Birthright citizenship was known to the founders as well as to the people that wrote up the 14th amendment.

.

Ah I looked at Wilki and they have the other the case I was thinking about

Under the U.S. Constitution's guarantee of birthright citizenship, any person born within the United States and subject to its jurisdiction is automatically a U.S. citizen, regardless of the legal status or the citizenship of that individual’s mother or father. Children born to foreign diplomats or to hostile enemy forces or born on U.S. territory while it is under the control of a foreign power are not considered subject to U.S. jurisdiction and therefore are not citizens at birth. Throughout the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship.[1]

Birthright citizenship has its roots in English common law. Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that under English common law “a person's status was vested at birth, and based upon place of birth--a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."[2] This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country…since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866).

http://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States_of_America

I can't imagine that a COurt would overturn all the common law precedent. IF they do then let me say we should be fearful what Country we live in then because what is next!!!

I would also like to point out in the irony of ironies that Michelle Malkin is Anchor baby

Isusportsfan is absolutely right. The seminal case is U.S. v. Wong Kim Ark.

Further, the term "anchor babies" is absolute [that which comes out an Angus's anus]. Under current immigration law, United States citizens under 21 years of age cannot repeat cannot sponsor their parents for permanent residence. So where is the anchor? I am as anti-illegal immigration as anyone but this cowardly attempt to visit the sins of the fathers and the malfeasance of an inept, short-sighted "in-the-pocket-of-every-special-interest-group" government on the heads of innocent children transcends vileness.

As I often say to those that want to deny the intent of the Second Amendment to the Constitution, "If you want to change it, amend it". The Framers created a mechanism for that for a reason. If you can't get an amendment passed, it is working as intended. I'll have none of this "rubber clause", "living document" garbage.

As I posted before, if the Congress passed a Law that specifically addressed the issue of "Under the Jurisdiction" to mean those who have applied for legal status, then those who have NOT applied for legal status would not have children granted automatic citizenship.

The Supreme Court overturns Settled Law all the time.

Common Law is a fall-back for when the Legislature has not addressed a specific issue... when the Legislature DOES address a specific issue, Common Law can influence a Court, as can legal Precedence... but it is up to the Court to determine the legality as held up to the Constitution, not to Common Law.

In the end, I think that the Supreme Court would not overturn the will of the Legislature to interpret the phrase 'under the jurisdiction thereof' to exclude those who's actions attempt to avoid that jurisdiction. I understand TB's support for a concrete Constitution... and I don't see this as changing the Constitution as much as deciding which interpretation to use as Law.

"In the end, I think that the Supreme Court would not overturn the will of the Legislature to interpret the phrase 'under the jurisdiction thereof' to exclude those who's actions attempt to avoid that jurisdiction. I understand TB's support for a concrete Constitution... and I don't see this as changing the Constitution as much as deciding which interpretation to use as Law."

I think think the Supreme Court would be very hesitant. I understand what you are saying about common law and that is correct. However, the problem is that this issue came up in the debates on the 14 th amendment. It was quite clear the Congress was aware of what this would do as to birthright citizenship. What we are discussing here was talked about.
"To this Senator Edgar Cowan of Pennsylvania added “Are the people of California to remain quiescent while they are being overrun by a flood of immigration of the Mongrel (Chinese) race? Are they to be immigrated out of house and home by the Chinese? I think not… there are nations of people with whom theft is a virtue and falsehood a merit… it is necessary, a part of the nature of things, that society shall be more or less exclusive. It is utterly and totally impossible to mingle all of the various families of men, from the lowest form of the Hottentot, up to the highest Caucasian, in the same society”

Senator John Conness of California replied that his State was not in danger of being overrun by the Chinese. He declared “

We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and equal protection before the law with others

.”
http://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States_of_America

THe line of cases on issues related to Birthright Citizenship is strong. THe Supreme Court overturns past precedent far less than people think. I have a extremely hard time conceiving that the Court would look kindly on this attempt.

THere is also a huge problem with this on a practical level. What happens while this legislative statute is moving up the Courts. Some circuits declaring that the Law is UNconstitional and thus these are American Citizens while other circuits declaring that no these are not citizesn and thus can be deported?

Would the Courts Try to fast track this Case to the Supreme Court much like the Bush/Gore case?

A lot of unanswered questions. Just as a matter of practical nuts and bolts governing I would find this approach undesirable because in some circuits and District courts you would have real massive injury done on a unprecedented scope to a COuntless HUndred of THousand if not more plantiffs. I realize that often happens of course but when one talks about Citizenship and its protections that is a whole different kettle of fish

...but that situation is not analogous. In the case of the Congress passing a measure stating that those who purposefully choose to avoid the punishments of the Law gain no benefit from the Law, the Parents themselves are making a choice... they can from now on sign up for their Z-Visas, and their newborns on our soil will be US Citizens. Only those who choose to avoid the law will manage to avoid the benefits of that Law. As the choice is the Parents' and the ability to avoid the ruling is not only easy but required, I see it as more analogous to somebody deciding to renounce their Citizenship.

Since when can parents renounce their children's Constitutional rights?

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