In 1978, I asked a question that led a state senator to kill the ERA in Virginia, perhaps dooming it nationally. (And I can't remember whether I favored or opposed the amendment at the time.)
Bob, I'm surprised you state that the Supreme Court has never clarified the meaning of the 14th amendment. I thought they did exactly that in United States v. Wong Kim Ark in 1898. Wong Kim Ark was a man born in the US to Chinese immigrant parents who left the US to return China, and then was denied reentry to the US. He claimed birth-right citizenship based on the 14th amendment, which the Supreme Court affirmed, allowing him the reenter the US.
You may well be right, Paul. That’s why I said my “non-lawyerly” opinion. :) I’m just going on what I’ve read in various law blogs. But your info merely augments my priors—which is that Trump’s EO will fall.
Paul I don’t think the case US v Wong Kim Ark is applicable. You answered that question in your comment. Mr Ark’s parents were legal immigrants and he was born here during their legal status. The difference is children born to illegal parents. Native Americans were not granted citizenship under the 14th amendment and that was changed by an act of congress. I believe the discussion in Congress by the Senator who proposed the amendment was clear that this was an amendment to clarify the status of the freed slaves and not anyone else. Congress could change this by passing a law like they did in the early 1920’s for native Americans. They don’t do it then but maybe now they have the opportunity to clarify.
I dunno. I feel like Trump's EO on this subject has been wilfully and grossly misconstrued, and can't really be compared to Biden's weird EO on the ERA. The text of Trump's EO is here:
It's plainly written, and seems quite reasonable to me (although I am also not any kind of constitutional law lawyer). All it says, first of all, is that the Fourteenth Amendment does not guarantee citizenship to *anyone at all* born in the United States, a fact which seems to have been recognized throughout American history, and by courts and Congress and all Presidents. The children of diplomats are not citizens, for example, and up until long after the Amendment was ratified neither were Indians. Common sense suggests the Amendment wouldn't have included the additional qualifier "...and subject to the jurisdiction thereof" if the qualifier "born in the United States" was sufficient all by itself. All the debate since then (and during the ratification itself) revolve around the meaning of "subject to the jurisdiction."
Beyond that, the EO just says that the policy of the Executive Branch will be that the Fourteenth Amendment does *not* grant birthright citizenship to the children of parents, one of whom is in the country illegally. The logic seems to be that if you are a citizen of another country, and are not here legally, then you are not "subject to the jurisdiction" in the sense that you have divided allegiance, you are not fully committed to this country. It's logic about which reasonable men can disagree, but it doesn't strike me as nutty or outrageous. My impression is that it's a position not a few constitutional scholars think is perfectly legitimate (e.g. https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment).
The Supreme Court has said more than once that its interpretation of the Fourteenth Amendment is that it covers the children of legal immigrants -- but the Trump EO does not dispute that. It only addresses the children of illegal immigrants -- and I don't think the Supreme Court has ever actually said anything on that subject.
The interesting question is: will they now? My guess is that the Roberts Court will do everything in its power to avoid ruling on the issue, because it will remind them of Dred Scott: a decision which really should be settled politically -- by voting, argument, and consensus among The People -- and most definitely NOT by what 9 lawyers think, however brilliant and thoughtful they might be. (My read of Dred Scott is that Taney was trying to do the same thing, punt the question of the legal and constitutional status of slaves back to The People, and take the Court out of the matter. That he failed so spectacularly as to permanently besmirch his reputation, and bring low that of the Court for a good 50 years, must give the current Chief Justice pause.)
I think it's also worth noting among all the hullabulloo that Congress could have passed a law explicitly giving citizenship to the children of illegals any time in the past century -- and has chosen not to do so. I can well understand the exasperation of the Supreme Court at the tribunes of the People choosing to take a pass on this Constitutional duty and instead punting it to the Executive and Court -- and then cynically beating their breasts about the outrageous fascist behavior of the latter when they actually do act according to their best judgment.
By the way, great story about your salad days as a shoe leather reporter. Lois Lane stuff, or Clark Kent if you prefer, although lore has it that Lois was the better reporter.
You mean Franco died? Again?
Bob, I'm surprised you state that the Supreme Court has never clarified the meaning of the 14th amendment. I thought they did exactly that in United States v. Wong Kim Ark in 1898. Wong Kim Ark was a man born in the US to Chinese immigrant parents who left the US to return China, and then was denied reentry to the US. He claimed birth-right citizenship based on the 14th amendment, which the Supreme Court affirmed, allowing him the reenter the US.
You may well be right, Paul. That’s why I said my “non-lawyerly” opinion. :) I’m just going on what I’ve read in various law blogs. But your info merely augments my priors—which is that Trump’s EO will fall.
Paul I don’t think the case US v Wong Kim Ark is applicable. You answered that question in your comment. Mr Ark’s parents were legal immigrants and he was born here during their legal status. The difference is children born to illegal parents. Native Americans were not granted citizenship under the 14th amendment and that was changed by an act of congress. I believe the discussion in Congress by the Senator who proposed the amendment was clear that this was an amendment to clarify the status of the freed slaves and not anyone else. Congress could change this by passing a law like they did in the early 1920’s for native Americans. They don’t do it then but maybe now they have the opportunity to clarify.
Ah, OK. So I’ll move priors right back where they were before Paul commented. Subject to further revision. :)
Birthright citizenship for the children of illegal aliens is NOT enshrined in the Constitution. Judges have been intentionally obtuse on the matter.
I dunno. I feel like Trump's EO on this subject has been wilfully and grossly misconstrued, and can't really be compared to Biden's weird EO on the ERA. The text of Trump's EO is here:
https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/
It's plainly written, and seems quite reasonable to me (although I am also not any kind of constitutional law lawyer). All it says, first of all, is that the Fourteenth Amendment does not guarantee citizenship to *anyone at all* born in the United States, a fact which seems to have been recognized throughout American history, and by courts and Congress and all Presidents. The children of diplomats are not citizens, for example, and up until long after the Amendment was ratified neither were Indians. Common sense suggests the Amendment wouldn't have included the additional qualifier "...and subject to the jurisdiction thereof" if the qualifier "born in the United States" was sufficient all by itself. All the debate since then (and during the ratification itself) revolve around the meaning of "subject to the jurisdiction."
Beyond that, the EO just says that the policy of the Executive Branch will be that the Fourteenth Amendment does *not* grant birthright citizenship to the children of parents, one of whom is in the country illegally. The logic seems to be that if you are a citizen of another country, and are not here legally, then you are not "subject to the jurisdiction" in the sense that you have divided allegiance, you are not fully committed to this country. It's logic about which reasonable men can disagree, but it doesn't strike me as nutty or outrageous. My impression is that it's a position not a few constitutional scholars think is perfectly legitimate (e.g. https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment).
The Supreme Court has said more than once that its interpretation of the Fourteenth Amendment is that it covers the children of legal immigrants -- but the Trump EO does not dispute that. It only addresses the children of illegal immigrants -- and I don't think the Supreme Court has ever actually said anything on that subject.
The interesting question is: will they now? My guess is that the Roberts Court will do everything in its power to avoid ruling on the issue, because it will remind them of Dred Scott: a decision which really should be settled politically -- by voting, argument, and consensus among The People -- and most definitely NOT by what 9 lawyers think, however brilliant and thoughtful they might be. (My read of Dred Scott is that Taney was trying to do the same thing, punt the question of the legal and constitutional status of slaves back to The People, and take the Court out of the matter. That he failed so spectacularly as to permanently besmirch his reputation, and bring low that of the Court for a good 50 years, must give the current Chief Justice pause.)
I think it's also worth noting among all the hullabulloo that Congress could have passed a law explicitly giving citizenship to the children of illegals any time in the past century -- and has chosen not to do so. I can well understand the exasperation of the Supreme Court at the tribunes of the People choosing to take a pass on this Constitutional duty and instead punting it to the Executive and Court -- and then cynically beating their breasts about the outrageous fascist behavior of the latter when they actually do act according to their best judgment.
By the way, great story about your salad days as a shoe leather reporter. Lois Lane stuff, or Clark Kent if you prefer, although lore has it that Lois was the better reporter.