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Started By
Message
re: Who determines “jurisdiction” in the 14th amendment? The president?
Posted on 12/10/24 at 10:37 am to JimEverett
Posted on 12/10/24 at 10:37 am to JimEverett
quote:
There is no precedent for such a question.
There is, but then we get into the "footnote" discussion.
But, the reason there is no specific precedent for that specific fact (ignoring cases after Wong and for the sake of this conversation) is the textual and historical analysis of Wong.
I'll give you a recent example on a different Amendment: Bruen.
Every gun case that came after Bruen had to fit the facts within the textual and historical analysis laid out in Bruen. Yes you could slightly tweak the facts a bit, but the analysis still is beholden to the precedent.
Unless the Court either overrules Wong entirely or rejects Textualism and the historical analysis adopted by modern textualists (bordering on originalism, but I digress), then you're going to use the same analytical framework laid out in Wong.
Most people who vehemently argue against Wong applying today haven't read it. I posted multiple posts in this thread of the historical analysis from English common law through early colonial precedent for this reason...so people would read it to understand the historical context of the crucial language.
This post was edited on 12/10/24 at 10:38 am
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Posted on 12/10/24 at 10:58 am to SlowFlowPro
quote:Again, geographically, reservations fall under jurisdiction of the United States.
It is when you're focusing on an argument based in geography (the Indian tribe/reservation one)
Posted on 12/10/24 at 12:07 pm to SlowFlowPro
quote:
The Supreme Court in the 1800s already did
What case? Some of us would like to read it instead of just taking your word.
Posted on 12/10/24 at 12:20 pm to WeeWee
quote:United States v. Wong Kim Ark (1898)
What case? Some of us would like to read it instead of just taking your word.
Posted on 12/10/24 at 12:27 pm to WeeWee
Jim Everett summed up the crux nicely.
quote:
The question before the Court in Wong Kim Ark was (quoting the case)quote:The legal analysis of that case and the precedent it sets applies to those facts.
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution
Now suppose this question before the Courtquote:There is no precedent for such a question. The idea that such a basic a view of how the law functions requires a belief that the Constitution is a "living document" is bizarre. The Constitution does not change, the facts presented have changed. If the Court had made a ruling on the citizenship status under the 14th Amendment for former slaves why would that legal analysis apply to persons born here to parents without legal status?
Whether a child born in the US to parents who have no legal status in the US is a U.S. citizen under the 14th Amendment?
This is not some weird esoteric belief. It is literally basic U.S. law
LINK
Posted on 12/10/24 at 12:50 pm to NC_Tigah
quote:
United States v. Wong Kim Ark (1898)
Gracias amigos
Posted on 12/10/24 at 12:51 pm to NC_Tigah
quote:
Again, geographically, reservations fall under jurisdiction of the United States.
You're fighting with the case again. That argument is dead, and has been for 120+ years
Posted on 12/10/24 at 12:53 pm to SlowFlowPro
Am I the only one who thinks this entire thread is retarded????
Posted on 12/10/24 at 12:54 pm to NC_Tigah
The analysis, however, remains the same. The Supreme Court's decision in United States v. Wong Kim Ark (1898), like the common law, does not consider the parents' United States domicile, residence, or business to be relevant.
The only relevant questions are: (1) where was the child born, and (2) is the child the offspring of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
The only relevant questions are: (1) where was the child born, and (2) is the child the offspring of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
Posted on 12/10/24 at 12:59 pm to NC_Tigah
quote:
The idea that such a basic a view of how the law functions requires a belief that the Constitution is a "living document" is bizarre.
When the textualism and history behind that textualism is established, to disagree requires a rejection of textualism and a reliance on a "living document" version of a standard.
Your problem is that you're picking out small parts of very long posts where I have explained this already (probably 5 times min in this thread alone).
quote:
The Constitution does not change, the facts presented have changed.
And we know the Constitutional framework to apply to whatever new factual scenario you want to create.
You are trying to reject that Constitutional framework (see first quote-response in this post) as your argument instead of applying your hypothetical facts to the actual framework of the case at hand. That was Jim Everett's issue as well.
quote:
If the Court had made a ruling on the citizenship status under the 14th Amendment for former slaves why would that legal analysis apply to persons born here to parents without legal status?
The textual and historical analysis of the language of the amendment to be analyzed won't change without reversal of the precedent.
This was already discussed with quotes from the case on page 2
quote:quote:
We all know the 13th and 14th were the Civil War amendments to free the slave and "jurisdiction" at the time was the governing bodies at the time controlling the slaves.
Here, I have a copy/paste from that thread I'll insert here. You're attempt at cleverness is bordering on stupidity, at this point. This should clear it up.
quote:quote:
Parents were here legally, thus unquestionably under US jurisdiction.
That is not how the case defines the terms.
quote:
The real object of the fourteenth amendment of the constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Coke, 1, 18b; Cockb. Nat. 7; Dicey, Confl. Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent, Comm. 39, 42.
The court is specific. The words of the 14A exclude 2 classes of children:
Those born to diplomats.
Those born to soldiers in an active campaign on US soil or to occupied US citizens during an active war campaign and occupation on US soil.
The court explains its historical precedent to both scenarios:
1. Children born of alien enemies in hostile occupation:
quote:
In U. S. v. Rice (1819) 4 Wheat. 246, goods imported into Castine, in the state of Maine, while it was in the exclusive possession of the British authorities during the lase war with England were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: 'By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.' 4 Wheat
2. Children of diplomatic representatives of a foreign state:
quote:
In the great case of The Exchange (1812) 7 Cranch. 116, the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country, were set forth by Chief Justc e Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous case of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards, in Cherokee Nation v. Georgia (1831) 5 Pet. 1; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in U. S. v. Rice, above cited. But in all other respects it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.
LINK
The court specifically says the exclusion is to 2 classes of people, and I give you how the court discusses those 2 classes.
Explain to me how "a child born in the US to parents who have no legal status in the US" falls into either of those 2 classes. That is applying your factual scenario to the law.
Posted on 12/10/24 at 12:59 pm to SlowFlowPro
quote:
The Supreme Court in the 1800s already did
Their decision does not mirror its usage today
Posted on 12/10/24 at 1:02 pm to SlowFlowPro
In short, the only relevant questions are: (1) where was the child born, and (2) is the child the offspring of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
Posted on 12/10/24 at 1:02 pm to Red Stick Rambler
quote:
Am I the only one who thinks this entire thread is retarded????
I'm sure there is a discussion of the latest episode of Ow! My Balls in another thread.
Posted on 12/10/24 at 1:06 pm to Salviati
quote:
In short, the only relevant questions are: (1) where was the child born, and (2) is the child the offspring of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.
That's it.
Your other options are:
1. Rejection of textualism and historical analysis of the text used
2. Reversal of the decision
I even went into detail earlier on how this alleged distinction is legislative in nature and should be wholly subservient to Constitutional requirements. It would be the same argument as Congress banning "Boom Sticks" and defining them to be, effectively, firearms, then people claiming "well the Constitution is silent to a regulation of 'boom sticks', so we can ignore Bruen and Heller when analyzing the issue.
Posted on 12/10/24 at 1:13 pm to SlowFlowPro
Chicken needs to create a "Pointless Legal Debates" forum.
Posted on 12/10/24 at 1:16 pm to Red Stick Rambler
That's largely the history of this board
Posted on 12/10/24 at 1:24 pm to Wednesday
quote:Wrong. No. It was a child of subjects of the emperor of China.
My recollection is that the SCOTUS only addressed this point in dicta, and the case dealt with American Indians - not illegal aliens.
quote:It does not, and the SCOTUS did not.
“In the jurisdiction thereof” can and should be construed to mean legal permanent residents.
quote:Wrong. No. It is controlled by Common Law that long preceded slavery in America.
The language was designed to address slaves born here and who were not citizens. The 14th A naturalized them. It has nothing to do with illegal aliens.
quote:Neither an EO nor a statute can "clarify" the Constitution. Such an EO or statute would be as permanent as an afternoon summer shower.
To answer OP the president could clarify with executive order. Congress should do it with a statute so it’s permanent.
Posted on 12/10/24 at 1:25 pm to SlowFlowPro
quote:Exactly.
That's it.
Your other options are:
1. Rejection of textualism and historical analysis of the text used
2. Reversal of the decision
quote:
I even went into detail earlier on how this alleged distinction is legislative in nature and should be wholly subservient to Constitutional requirements. It would be the same argument as Congress banning "Boom Sticks" and defining them to be, effectively, firearms, then people claiming "well the Constitution is silent to a regulation of 'boom sticks', so we can ignore Bruen and Heller when analyzing the issue.
Posted on 12/10/24 at 1:35 pm to SlowFlowPro
quote:
That's largely the history of this board
Fair point....
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