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.
First a belated thanks to Trank for the Library Of Congress Record:
https://web.archive.org/web/20170228210602/https://www.loc.gov/law/help/citizenship/pdf/congressglobe_2890.pdf
Notable Comments
Art: Thanks Mish. I find it interesting that the liberal interpretation of the constitution, as a fluid document that should be interpreted with a modern viewpoint, is now being embraced by conservatives. The ones that decry the liberal viewpoint. As for this specific argument – my great grandfather was a British citizen who jumped ship in California. My great grandmother was English and traveled across Canada. She then entered the US and ended up in California. So, per this argument, I am not a US citizen – since my grandfather was born to illegals.
DanW: There is a process to amend the Constitution. The USA should use it. Birthright citizenship should not apply to children born to non legal residents.
MPO45V2: Excellent points Mish. Don’t worry about the name calling losers, they are simply angry that you are 100% right and are projecting their anger at you because they know their messiah is 100% impotent on this issue. If it gets to SCOTUS they will shoot it down and that will be the end of all the hopes and dreams of the bigots forever.
Phil: Great discussion, Mish, thanks for posting. The irony of Trumpers bashing Biden/Harris followers for realistically doing similar is laughable. Yes, I, too, would rather deal with T than B, but didn’t vote for either any election. Maybe I should start writing in “Mish”…. that doesn’t sound like such a bad proposition.
The 14th Amendment originated in the 1866 Civil Rights Law, which the Supreme Court struck down. Congress (still minus the southern states) then enacted it as a Constitutional Amendment, and secured its ratification by making it a condition for readmission of the southern states to the union. (Not quite cricket, eh?)
There have been many complaints against the 14th Amendment. When I was in High School the teacher complained that the 14th Amendment was misinterpreted to give corporations the same rights as people, while also obstructing the rights of working people. – The Institute for Justice [IJ] complains that the 14th Amendment’s “Privileges or Immunities” clause was gutted by the Supreme Court in ‘The Slaughterhouse’ cases. The IJ is litigating to revive that clause. – We have seen dispute over whether the 14th Amendment’s “Insurrection” clause applies to D. Trump. – We also see dispute over the birthright citizenship clause. The exception for ‘Native Americans’ is still in force for persons born in American Samoa, by the choice of the Samoans. – The 14th Amendment has a clause to deprive states of their representation in Congress if they deny the rights of some of their citizens. That clause has never been applied, and it took the 1964 Civil Rights Act and 1965 Voting Rights Act to do what the 14th Amendment was supposed to do. There are now modern complaints that the Supreme Court is gutting the 1965 Voting Rights Act.
We also ought to think about whether the Amendment Section of the Constitution makes doing necessary changes too hard. This has indirectly come up with regards to two proposed 28th Amendments: One the ‘Equal Rights Amendment’, the other giving the District of Columbia votes in Congress. And Congress hasn’t sent any proposed Amendment to the states since the DC amendment, nor has the other route ever been invoked.
“Can anyone in good faith sincerely tell me the intent of birthright citizenship was not perfectly clear in 1866?”
Nope, it is very clear. But let’s remember that was then and this is now.
Back then closely knit Gypsy communities raised their children within the community with no help or even contact with the government.
And after all, all childern are innocent at birth, correct?
Today a child born on the north bank of the Rio Grand, in view of the Border Patrol and who’s parents then cross back in to Mexaco leaving the chilld behind can be sure that their child can claim 18 years of fosterhome care, healh care, food, clothing, and a free public education. While we have kids born in and of US citizens have trouble getting all those things and much of what they do get is paid for with more government debt. Debt that is then dumped our our children.
Is it fair. No. But what are priorities? My first choice would be to double all tax rates on Democrats.
And then take good care of all our children,
So basically, I just have to get a foreign girlfriend pregnant, fly her to the US, then once the child is born, I can use it to get a green card and work permit, and work in the US without having to bother with applying for citizenship and the global tax rules?
That is exactly how the anchor baby stratigy works. You jump the line and make others pay the cost it works. But should it?
Mish, you incorrectly interpret the lack of an “Oxford comma” as meaning that the entire sentence applies only to families of diplomats and foreign ministers accredited to the US. The very next sentence states that the the provisions of the 14A would apply to “all other classes” of persons. That suggests that the preceding sentence defined several classes of persons not eligible, not one class with several adjectives. Your understanding of the rules of statutory interpretation is also a bit simplistic. The plain language of the 14A might seem vague, but the mischief that Congress attempted to deal with was particularly associated with the former slaves who, like it or not, were lawfully admitted to the US and would have otherwise been eligible for US citizenship once they were born there.
The facts of the Wong Kim Ark case hinged on the fact that his non-citizen parents were lawfully admitted and resident in the US, which clearly made him one of the “other” classes eligible for birthright citizenship. This is entirely different from persons who are unlawfully present in the US, i.e. pretty much anyone who does not submit an application to be legally resident in the USA.
Trump’s EO was carefully written to deal with the historical baggage; under the principles of equity, all persons recognised as having birthright citizenship would have relied upon that official recognition in planning and organising their daily lives, so it would not be right at equity (as opposed to at law) to revoke that citizenship. A sane Supreme Court would make that very distinction, allowing for the EO to work prospectively, but not retroactively.
The reasons for birthright citizenship no longer exist, it encourages illegal immigration and makes people take risks so they can plant a foot on the goal line. Asylum, and other standards based immigration is rendered pointless because the time frame is longer than 9 months (and many come here very pregnant already). I libe in NYC, the fruit selling women that are now everywhere are all visibly pregnant or toting a newborn/infant. So now Dems say well it’s cruel to deport parents and leave kids here sp don’t deport them. It’s abusive, and as Mish says it’s not necessary for democracy as most industrialized, progressive countries don’t have it.
But, Trump’s wrong. 14th amendment has been consistently interpreted and is clear in what it says. we’ve not been getting it wring for hundreds of years.
It’s funny how MAGA is now arguing for a modern interpretation, saying it made sense then but no longer does. So much for originalism, so much for conservative interpretation, let’s just throw out what everyone said back then and how the SC has interpreted it. Of course, when Dems point out that the founders never have anticipated the mass production and affordability of modern guns like small, handheld concealable semi-auto pistols with 18+ rounds, and AR-15s, Republicans scream “originalism” and textualism.
i am confident even a very Republican SC won’t adopt Trump’s interpretation.
The 14th Amendment was a Reconstruction amendment, designed to protect African Americans, not illegal immigrants. Why would the framers of the amendment want to reward law breakers?
I am tired of stupid bullsh*t from idiots whop cannot read.
Now read my post again and again until you understand it.
Quoting Senator Howard from the article: “This will not, of course, include persons 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.” So the children of illegal aliens are excluded. Seems like a reasonable interpretation to me.
By the way, Mish, you don’t win fans or arguments by insulting people who hold different opinions than you. I think this question is open to interpretation, and I hope our Supreme Court has an opportunity to consider it.
I look forward to a 9-0 decision if Trump appeals all the way
The 14th Amendment was meant to protect people who are supposed to be here (i.e., they’re here legally). At the time of passage, being one of 3 Reconstruction amendments, protecting African Americans was clearly the main impetus. But yes, the child of a Chinese immigrant laborer was also protected, IF HE WAS HERE LEGALLY. So again, in the words of Senator Howard, “this will not, of course, include persons born in the United States who are foreigners or aliens”, i.e. people whose very existence here is in violation of federal law.
The below quotes are from the movie “A Man for All Seasons”.
It was made in the 60s. I would suggest those unfamiliar with it watch it.
“William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
The above dovetails the point of the 14th Amendment…and the citizenship clause, etc.
The way to Make America Great Again cannot be that of shaking its constititional fundations. It was the constitution that made USA great first time. Thanks to the Jus Solis the sons of the immigrants abandoned their previous identity. They are the ancestors of todays MAGA supporters. Don’t betray your roots.
That was then. This is now.
Trump also has declared a National emergency at Border.
Would be legal consequences coming out of EO.
Far from simplistic approach taken to 14th amendment applications during such times.
Founders and subsequent Generations also believed in Sovereign borders of US.
They were practical people and at heart Legal system tends towards practical decisions.
Will be interesting how the appeal process advances working way to Supreme Court.
“Trump also has declared a National emergency at Border.
Would be legal consequences coming out of EO.
Far from simplistic approach taken to 14th amendment applications during such times.”
So the next time a democrat is president, he (or she) can declare a national emergency and suspend the 2nd amendment and seize guns. Is that the path you want with these executive orders?
Here is Bill O”Reilly one of the sharpest Political minds out there.
https://www.youtube.com/watch?v=GTBE_7gHdUI
As for your reference, US Constitution is designed as a Living Document.
It is set up so that as future populations designated by word Posterity (from preamble “In order to form a more perfect Union”) go about desirably creating a more perfect union, have the means to do so.
This leaves a Political method to shape via electorate the Road that Government takes.
Everything right with raising question as to intent of 14th and what it was enacted to address, which at that time was aftermath of American Civil War..
This being 2025 and not late 1800’s there are different events shaping Modern US society.
If people have taken notice Hegseth was confirmed. All those Senators milling around during vote, hung out to make sure it went the distance.
VP Vance did the tiebreaker so this nominee was squarely placed at Trumps feet and Trump owns it.
Noem in for Homeland Security. Interesting two Senators voting for her confirmation Warnock of Georgia and Fetterman of Penn.
Warnock who is a progressive also has hurricane Helene cleanup needs.
Long and short Hegseth confirmed means Bondi confirmed and others as he will most likeley be most controversial.
Bondi confirmed means don’t stand in way of Federal enforcement of immigration Law under Trump, as per O’Reilly link above.
The more you speak the more you make the case for revoking the 2nd amendment. Did the founding fathers intend on AR15s for everyone or just a single shot musket?
If it’s a living document then the case is made for a “national emergency” on gun violence and revoking or re-interpreting the 2nd amendment. That’s where your line of thinking is going and you seem to be oblivious of it.
You twist like a true progressive. But you twist to no avail.
The Constitution makes ability for We The People to create the kind of Government that serve the people not the elite.
To ask US Supreme Court to clarify intent of 14th Amendment is 100% Legitimate.
Constitution is set up to be more then George Bush’s just a piece of paper, it is a guideline on how to form Government. That done in a manner which paints broad strokes.
This is no longer the time of Civil War coming to its ultimate end of freeing slaves and making sure those Freed Slaves are citizens with the right to vote.
Nor are US Borders a true Physical Barrier due to a vastness and emptiness.
In my World when my House goes on fire I will put out that Fire if possible.
You post as a True Progressive, let the Fire consume everything then Discover there should of, could of been Water in the Hydrants but you know. it does not fit the ideology.
Bummer.
Heh. Around 1900 the 1880 census records and half the 1890 records were destroyed in a fire. Whoever was in charge decided what remained of the 1890 records weren’t worth keeping so they got tossed.
You can imagine what a circus that would make if people had to prove their great great grandparents were citizens. What a hoot.
Birth Tourism is a real thing. There have been several occurrences where nefarious interests helped pregnant women travel to the US, some paying more than $40,000, to give birth to babies who would automatically have American citizenship. Further, foreign tourist birth parents can apply for permanent US residency once their child turns 21. This as a problem. Of course, it is illegal to enter the US with this as your specific goal, but, proving that a pregnant woman is only traveling to the US to have a baby has its challenges. Got any ideas how to address this problem while preserving the 14th Amendment?
On a related note, i head Tennessee Rep want to propose a constitutional amendment to allow president to be elected 3 times. lol …
What happens when a president willfully and knowingly violates the constitution?
If impeachment is the only solution and congress refuses to impeach, then what?
This is a serious question. I think most of his actions are in the right direction but through an unconstitutional process. So, how does it play out?
Of course, that’s the fear with Trump. The GOP is completely enthralled to him and will never vote to impeach. So what happens if he ignores the courts, and kicks out American born children anyway? How many millions will cheer? Then he decides he will run for a third term. Again, millions will cheer. Then, he appoints his son President for Life. And sends the 3rd Infantry Division to put down protests by the radical left Democrats…
Biden ignored the court with his student loan bailout and millions cheered. The Supreme Court has no enforcement arm.
It’s called “banana republic”.
I will repeat, what does subject to jurisdiction mean? Does it mean subject to every law of the US? If so, the Supreme Court needs to say so. Someone who comes here for 30 days to drop a kid is not subject to every law of the US. Do they have to pay income taxes on every cent of worldwide income like citizens and green card holders? NO. Can they buy a gun here? NO. Can they be prosecuted here for violations of laws in other countries not directed at the USA? NO. It was expected that the EO would be immediately stricken down. The whole point was to try to get the issue to the Supreme Court for review. Whether the S Court will take it or not remains to be seen.
In the meantime, the IRS should aggressively pursue collecting taxes from those born here but living abroad. Force them to renounce their citizenship, or pay the taxes on worldwide income and possibly face criminal charges.
Especially that kid of the UK former royalty who is now a US citizen and subject to all the IRS rules and other laws including FACTA.
Mish,
You are flat out wrong (in my interpreation) but are certainly entitled to yours. But, you didn’t help your case by selectively emphasizing certain discussions outside of their full context, which clearly deal with specific exceptions, not the general case. You are right that the intent is clear. The child of an illegal alien is not subject to the jurisdiction of the US, since the mother is subject to a foreign nation. I fail to see why this is so controversial or difficult to understand. There is legal precedent supporting Trump’s decision. Your dislike for his policies, in general, doesn’t make you right and the forcefulness of your declarations undermines your objectiveness and frankly, is off-putting. Further, your interpretation is contradictory to the phrasing of the amendment and, if accurate, would make the amendment irrelevant.
You are entitled to whatever nonsense you want to believe. The District Court already made this clear.
So when is a district court the final judicial authority in the USA?
It isn’t.
Maybe you should be a guest on a program like the View or similar program to share your views.
Debate is not law either.
I’m not sure what the correct answer is, but I don’t find the historical debate as clear as you seem to. If the phrase ‘subject to the jurisdiction’ has no additional meaning why is it there? Why not just remove and state clearly ‘all persons…’? I don’t see where the historical debate explains that and that is exactly the question. Although clearly making all the descendants of the many immigrants over two centuries non-citizens is nonsensical, and perhaps that alone should carry the day. With the border closed and legal immigration being slow and tedious coming here to anchor a baby is now much more difficult already.
Perhaps the only intended exception was foreign diplomats. If so it probably should have been stated explicitly.
Mish I been reading your blog for years, since your early days. Your a great writer, your analysis spot on. I do wish you were president. Next election I’m writing you in. Thanks for this blog.
Thank you very much. I do think I got about 25 votes or so.
I am going to do a post on economic policy soon. My plan vs Trump.
“and not subject to any foreign power”
If you enter the country illegally and have no legal right to be here, you are still a citizen of (and still a subject to) the country you came from.
I agree it’s ‘clear’ how the Supreme Court has ruled in the past, but I presume these were cases where the immigrants came here legally.
If not, as we have seen with Roe v Wade, precedent can be overturned.
No chance because of Res Judicata.
Mish, why don’t you submit your position in the form of an Amicus Curiae brief?
I do not believe it’s possible, or if it is possible, anyone would look.
I will ask my Constitutional Lawyer friend if there is a way.
Perhaps he can do that, but it may be a matter of standing.
This is one of the better pieces on the topic that I’ve seen. I agree with the author fairly infrequently, but he’s laid out the historical record very well. Since the supreme court invented it’s new “historical understanding” interpretation criteria, it will be interesting to see how a couple of the more Trump supporting justices either cave to logic or twist themselves into a knot to oblige the president here. I didn’t think they’d go for the kind of immunity decision they did (which was spun from whole legal cloth), so I’m not taking bets on this one either. But this logic is sound. I’m appreciative of the writeup.
Thank you very much
This is getting silly Mish, arguing pointless statements made from 150yrs ago. Trumps action do not entend to deport any USA born illegals this is boarder line stupid.
What actually trickles down from the top? The lack of respect for the rule of law:
“The ICE officers also didn’t have a warrant, in ‘plain violation’ of the Fourth Amendment, Newark Mayor Ras J. Baraka said in a statement.”
Mayor Rages as U.S. Military Vet Nabbed in Trump’s Much-Hyped ICE Raids
Another armchair left wing wing nut that doesn’t understand the law.
Thanks Mish. I find it interesting that the liberal interpretation of the constitution, as a fluid document that should be interpreted with a modern viewpoint, is now being embraced by conservatives. The ones that decry the liberal viewpoint. As for this specific argument – my great grandfather was a british citizen who jumped ship in California. My great grandmother was English and traveled across Canada. She then entered the US and ended up in California. So, per this argument, I am not a US citizen – since my grandfather was born to illegals.
It was a long debate on the 14th amendment from 1866-68 in which southern states did not participate for obvious reasons. The debate was long and contentious and your cherry picking of the parts you agree with is very much debatable. Under no circumstances did the senators Anticipate the mass illegal entry from Mexico in post war period. In no way are immigrants from prior generations in doubt. That is a canard. One federal judges opinion. Is just that, an opinion. Jurisdiction is the key term here and people who entered country illegally are not under US jurisdiction.
Authors didn’t anticipate glocks and ar15s when they wrote the 2nd either, yet here we are.
And yet US citizens cannot own tanks, fully automate weapons, bombs, etc.
There was no such thing as “visas” or even “illegal immigration” in the 1880s. Adhering to Mish’s tortured reasoning it means that EVERY person who enters the US automatically gets US citizenship.
It is a difficult matter given the context of extreme abuses of the Constitution as with at least two forms of bribery legalized (campaign contributions and “gifts”) as well as gutting “Congress shall declare war” – which ignores “police actions” and conflicts that Senators don’t even know about (Sen. Paul). Yes, I can see that discarding long standing precedent is de facto radical but we sadly may need to do so at times.
Why doesn’t Trump just shut the borders, like he said he would. Get control.
Deportations are underway, planes are loaded.
Arrests of criminals is first. This is happening now.
1500 troops already sent,, as much as 10,000 said to be coming.
Southern border already shut.
Check where you are getting your information from. Taking control of border was first priority and Homan has acted by unleashing ICE
Videos circulating of actual raids being conducted with subjects arrested.
“ 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”. Selective read much? Aliens are not included, and that would include the illegal kind.
– A conversation Via: “Congressional Globe, May 30, 1866”
> This does not qualify as a conversation relevant to today, in regards to this specific topic IMHO. We are talking about a Law “Strictly Tied To Travel/Ability to be someplace, and at a specific time.
>> Under this scenario, I can load a plane, bus and 1,000’s of cars, With 9 month old pregnancies onboard. They get off the plane, bus, or cars and there American Citizens and existing citizens must now pay for them, and support them.
This Makes Sense?
How does it matter if it makes any sense?
C’Mon Mish, A conversation Via. “Congressional Globe, May 1866” Seriously…
It matters because this is “Birth Right” Citizenship we’re talking about, and “Everything” that comes with that understanding and realization!!!
So your telling me that, “Under The Realization” That China & India could flood “Our Country” with 3M-5M “People Each Year”, over the next decade with the “Law As Is”. This would be a potential “Total Of 100M New American Citizens, or roughly 30% of “Our Nations Current Total”
Now also realize that the “Voting Block” is together in “Age Bracket” so they start voting in 10 Years, and all for the same things, as they are the same age and cultures. Add the existing 10M-20M of the existing Legal Citizens that are here already, and we are talking about 40% of the Vote! That is enough to pair with another class (Middle Eastern?) to gobble up 51% of Our Countries Votes/Laws in “10 Years And Legally”
Oh, here is the kicker!! The entire 10 Years leading up to the takeover, “American Taxpayers” (You & I) will be potentially paying for their Education, Language, Housing, Food, Computers, Cellphones, Etc. We may be broke ourselves by then, so we would be asking too I suppose…
Has this Realization and Understanding actually taken place, or are we going to huff and puff and “Claim 1866” are the “Rules We Should Follow” for Our Country No Matter What!! Why on Earth would Any Citizens Wish for this possibility? When did America start saying MAGAA (Mae America Go Away Again)? You Added a Letter, I saw that…
Before you think it would never happen, it may have already started a decade ago in the 1M-2M under the radar number.
A lot of land (Farms, they got to eat), and Banking (need money), and technological achievements (Clone it), and so, so much more, but I digress…
P.S. Look to have Bought and Paid for some other Um… More Valuable Um… Things?
Clearly they were against gypsies.
Well the Laws today should then be voted on the remove the gaming of Birthright Citizenship. But could enough votes ever be obtained today with so much division being deliberately fomented between the Parties?
No.
Without getting into the Constitutional issue, it is perplexing that someone here illegally can have a child who then becomes a citizen. This simply encourages illegal immigration and the total breakdown of our borders…….
That may be perplexing but it is the law of the land.
Dredd Scot was the “law” of the land: How’d that stench from the bench work out? The courts’ required five has never ruled that children born to foreign persons here illegally or on a temporary visa for surfing or artichoke picking are eligible for citizenship at birth, and hence was never the legitimate law of the land. “The Supreme Court confirmed that understanding (albeit in dicta) in the first case addressing the 14th Amendment, noting in The Slaughterhouse Cases in 1872 that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” John C. Eastman is Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, a Senior Fellow of the Claremont Institute, and a long-time professor of constitutional law. He is author of Born in the U.S.A.? Reassessing Birthright Citizenship in the Wake of 9/11.
Hey Mish You’re wrong about this one. Rewarding criminals with then gift of US citizenship is ridiculous. Just another encouragement for them to break the law.
You are trying to debate the law on merits.
The Court does not consider merits – only constitutionality and this is decided explicitly and purposely by the text I displayed and the following SC decisions.
What were they thinking was asked.
Getting something that needs get addressed into the public dialogue.
Part of immigration and naturalization policy which has to be reviewed.
Review will come from Supreme Court as to intent of 14th.
Removing an incentive for illegals to break US Immigration Law would go a long way towards resolving abuses.
Why should a criminal (an illegal alien) be allowed to pass on the benefits of an illegal act to his children? We move heaven and earth to return art work stolen by Nazis.
The 14th Amendment’s Citizenship clause also provided all person living in the US equal protection under the laws but that did not stop many states from discriminating against black Americans (the Jim Crow laws). In 1896, in Plessy v Ferguson, the Supreme Court upheld racial segregation laws. This decision was not overturned until 1954. It will soon be up to the Supreme Court to decide whether anchor babies will be classified as citizens.
Menthol cigarette ban withdrawn by Trump administration. Big 🎪
Constitutional ammendments can be over turned.
That is the next step after deportations and a secure border.
The momentum to overturn the 14th is building.
If the 14th does stand, there is NO reason to have any borders.
When the Roman empire lost its ability to defend its northern borders, it was gradually overrun by Germanic tribes.
Many of the defenders of the norther borders where Germanic immigrants themselves……. auxiliaries loyal to Rome. In fact near the end of Rome several emperors where part Germanic or full.
It was more complicated than that. Germanic people had been living as Romans for some time.
Momentum – what a hoot.
If the Senate is dumb enough to take this up, they will waste 2 years on it.
Great discussion, Mish, thanks for posting. The irony of Trumpers bashing Biden/Harris followers for realistically doing similar is laughable. Yes, I, too, would rather deal with T than B, but didn’t vote for either any election. Maybe I should start writing in “Mish”…. that doesn’t sound like such a bad proposition.
From this angle it seems the new and improved U S Taliban finally started to show its face. Beautiful just beautiful.
“This is so damn clear that I suspect Trump may not even appeal…” — Mish
“Obviously we’ll appeal it” — Trump
And we believe Trump?
I hope he does appeal, not once but twice so the SC can hand him a 9-0 slap in his face
No, but nearly all MAGA Republicans do believe Trump…
and that may be a bigger problem than Trump himself.
A leader who misleads, is no leader at all.
He’ll appeal for sure. He will have zero qualms blaming his appointees for getting it wrong or accusing them of treason.
Turns out it is Trump who is the one who wanted to override the Constitution all along, no wonder he always claimed the left wanted to do it.
Trump is making an argument. He is not overriding the Constitution. Per your thought, do you believe all presidents who argue before the Federal courts are “overriding the Constituon?”
Biden, Obama, etc all make legal arguments and experience legal defeat. Why single out Trump?
Because of their bias. And I’m starting to wonder about Mike, whom i think can be brilliant, and on many topics and levels.
Laws passed from 1866 are obviously being abused today.
Its a different world.
This needs supreme court and congress to pass but I agree with Trump. Hate me
Didn’t Arizona just use an 1864 law on its books to prevent abortions? Consistency never survives hypocrisy.
So? are they the same things? 2 wrongs make a right?
Are you a Democrat?
Exactly! Laws very often go under review, for all sorts of reasons. This is most definitively a possible Law that falls under this guideline, if you will.
– Can it be enforced? > Not as written.
– Does it make sense any longer? > Not as written.
– Does it leave open, the possibility of Abuse? > Beyond belief for why it was written.
This list has roughly 50 more possibilities for reasons to Amend the Law, to match up with todays World!!!
Great, so letks do away with the 2d Amendment too. Founders weren’t thinki g of Glocks and AR15s, and the country isn’t at risk like kt was back then with a weak military.
Because with all liberals, it’s only “fair” when they win.
Because it’s so blatantly wrong. It’s not subject to interpretation.
What were the senators thinking concerning the application of the citizenship clause to children of foreign immigrants who entered illegally? Probably nothing at all since all immigration was legal until 1882 when Congress created a specific exception for ethnic Chinese so the concept of “illegal immigrant” did not exist in 1868. That probably leaves us with an ambiguous qualifier “subject to the jurisdiction [of the United States]” without much useful guidance from the legislative history.
The Alito/Thomas fan club has spoken
What about Oliver Wendell Holmes?
Man is that an excellent point and I honestly was not aware. Which backs my point that a law from 1866 or 1868 is just being abused today and as written is not reflective of a countries national security. It should be changed on that last point alone……..Thru supreme court/ Congress
All you have to do is deport the mother
Without the child which then gets put up for adoption / orphanage.
The word would get out quickly to stop coming here for birth tourism unless you want to abandon the child (very very few want to do that)
So put both Mom and her child on the plane back home, when he’s ready to travel, and give her the childs birthcertificate so he can come back when he’s ready.
Breaking up famlies is a big part of our child welfare support programs now. Just another “moral hazard” of Goverment policy
It seems that your way-too-extensive justification of why 2+ 3 = 5 is overkill. If it were as simply obvious as you say, one sentence would have sufficed.
There are some similarities in your argument to the Roe v. Wade decision in 1973 that suddenly found a federal right to abortion in the Constitution. One that was hidden from most talented attorneys for decades, that suddenly was discovered. Maybe we can run the 14A by the Supreme Court again, to re-visit birthright citizenship, without getting hysterical (historical??) about it.
Agree! But hysterical is what people do.
I prefer an amendment to the Constitution to clearly state the law. I hate that Federal policy is such a knotted mess of Executive Orders, Bureaucratic regulations, Random court decisions and Selective law enforcement.
The whole “birthright” debate wouldn’t be as big of a discussion point, if the previous administrations since say 1972, had bother to actually enforce the laws against illegal immigration.
That and anyone here on a H1B IMHO shouldn’t be entitled to ‘birthright’.
Enforce the immigration laws to the letter. Born here even to illegals? Great, I guess you’re in, but mom and pop have to go back. Split families? Well, life choices are hard sometimes. Get used to it.
Cruel, heartless? Sorry, I’m all out of give a damn having been trampled by such overdone arguments for decades.
The 13th Amendment ended slavery. The 14th Amendment extended citizenship to recently freed slaves. The immigration policy at that time was to grow the population to have strength in numbers against other countries. Since there was really no immigration laws to break, the scenario of an illegal alien giving birth in the US was never considered. We no longer need to grow the population of the US to guarantee a large army. Other countries are using US immigration policy against the US The 14th Amendment needs to be updated to grant birthright citizenship to those born from mothers in the US on a permanent visa. No birthright citizenship to those born of parents on student visa, H1B visa, or tourist visa.
Then petition your rep to pass a constitutional amendment…..that’s why Congress exists.
Agree. First step is to have clarity on what the existing Constitution. That will help guide the text of the amendment.
Problem is the 14th will never be updated as to ratify an amendment would require a number of blue states to support that amendment and those are the states that oppose deporting illegals etc.
Perhaps the only workaround is to declare any birth in the US not to a lawful resident or citizen as the birth of a diplomat. That meets the letter of the 14th that excludes diplomats and makes the baby easy to deport just by revoking their diplomatic status as soon as the mother has recovered enough to be deported. The law in most countries frequently has such examples of legal workarounds in regards to citizenship.
Excellent points Mish. Don’t worry about the name calling losers, they are simply angry that you are 100% right and are projecting their anger at you because they know their messiah is 100% impotent on this issue. If it gets to SCOTUS they will shoot it down and that will be the end of all the hopes and dreams of the bigots forever.
Ultimately, it doesn’t matter because even in bizarro world where SCOTUS agrees with Trump, this country is in a demographic death spiral and the only thing keeping it alive are the immigrants. It’s damned if you do and damned if you don’t and nothing Trump or anyone does is going to fix that now.
Do you know that most countries do not grant birthright citizenship? Are they all racist, bigoted countries?
For example, the EU countries do not have birthright citizenship – other requirements must be met.
Always astounds me when people criticize Trump for wanting the USA to do what is normal in other countries!
Other countries have socialism and communism, do you want that here too? WTF do I care what other countries are doing? We are talking about the law of the land which is the US Constitution. Other countries don’t have a US Constitution this one does and the laws on it should be followed.
That’s what this discussion is about THE US CONSTITUTION as the law of the land. If you don’t like what it says there is a way to formulate a “grievance” and petition the state to change it.
If SCOTUS somehow ends up agreeing with Trump then wait till a democrat president re-interprets the 2nd amendment. Other countries don’t have a 2nd amendment so I guess we should get rid of that too. Is that you line of thinking?
What does it mean to be an American citizen? What does it mean to be a French citizen?
Does it matter if citizenship doesn’t have anything other than a legal, technical definition? If loyalty to country does not matter to citizenship, then why bother even defining who is and who is not a citizen?
Good stuff no doubt as to its legality.
It’s hard to believe you can break the law (parents illegally here) and they have a baby and that baby gets the citizenship under a an illegal cloud.
Just doesn’t seem correct or well thought out.
I wish the 1866 debate could have covered millions of people breaking the law and entering the country and granting their kids citizenship.
There’s a simple solution to all of this, everyone takes a DNA test and gets shipped back to their country of DNA origin. If you don’t have a drop of native american DNA, you go back to where you came from…easy peasy.
Uh huh. My foreign born father’s DNA test says he’s 60% celtic. Therefore he should be sent to Ireland. But he was born in Austria and most of the people there carry indigenous celtic DNA. So, that doesn’t entirely work.
Works perfectly, destination is somewhere in Europe, once you get there figure it out.
That’s ok – the Irish aren’t Celtic. They have some of the Celtic culture, but not their DNA – that is from central Europe.
Except there is no pure Native American DNA. Lots of it shows Polynesian traits because North America was colonized from there at some point maybe 10,000 years ago.
So literally the entirely continent would have to be depopulated.
Not really, only the ones that are using the US Constitution as justification are the ones that need the DNA process.
“Trump’s speech at Davos was truly pitiful.”
Your TDS is very strong today.
TRUMP told the WEF where to go . . . and its about time !
Wanted to point out the insanity of birthright citizenship as it exists today. A foreigner who never pays taxes to the USA, pops out a baby in a LA hospital. The mother and baby return to their native country and again, never pay taxes to the USA. The child is not educated in America (probably to the child’s benefit lol).
On what basis is this child an American citizen? None Except as a technicality.
Is it any wonder that a government that treats citizenship so cheaply also treats its own citizens so poorly?
Birthright citizenship (aka legally as jus soli) is pretty much the standard across the western hemisphere. The US is not an outlier in this regard.