Trump To End Birthright Citizenship

[Mountain Man]

All of a sudden you're no longer strict originalists eh. Read the words and weep. Trumps idea it's unconstitutional.

[One Bad Pig]

Who? Neither Samuel Alito nor John Roberts are originalists. And as for originalism and intent, caring about original intent (intentionalism) is actually rather rare among modern originalists, which more commonly are textualists, caring about the original meaning of the law, i.e. how its text would have been understood at the time, disregarding whatever the intent of it may have been. As Antonin Scalia said: "We are governed by laws, not by the intentions of legislators."

You appear to be working at cross purposes here. Would not the intent of those who sponsored legislation be relevant for understanding the original meaning of a law as its text would have been understood when passed? It is not uncommon for arguments of law regarding statutes to refer to said statute's legislative history.

United States v. Wong Kim Ark.

Which may or may not apply to illegal immigrants.

Although, even if we accept that the Citizenship Clause does not apply to children of illegal immigrants (due to textualist understanding, intentionalist understanding, or some other understanding), I'm confused as to what exactly authorizes the president to make any adjustments to citizenship by executive order. Wouldn't that be something for congress to do?

Apparently, it's the Executive branch which decided that children of illegal immigrants could be granted citizenship in the first place. It stands to reason that what the Executive branch does can be undone by said branch. In either case, I agree Congress should be involved.

Further reading

[One Bad Pig]

Jim's generally more interested in hurling stones than making sense.

[Leonhard]

So, if a gay man (who isn't Danish) who is in a relationship with someone who is Danish, has a child with a woman who isn't Danish, the child won't be Danish?

If he himself isn't danish, yes.

But it works for women in the same situation? Why? I don't understand.

I don't understand it either. I wasn't aware of this law until I looked it up. I don't know the ends and outs of its application.

[Terraceth]

I'm not sure what your point is. Does not the "textualist" or "originalist" look to the intent of the writer(s)?

Textualism does not look to the intent of the writers; to a textualist, intent is completely irrelevant, what matters is the text of the law, hence the name textualism. This is why Scalia would routinely refuse to sign onto any opinion that used legislative history as evidence.

Scalia certainly did in the Heller case.

Scalia's references to intent or legislative history are fairly brief, are there only to respond to points made by the dissent regarding intent, and are prefaced with statements that appealing to such things are dubious to begin with. They are never part of any major argument he makes.

The Indians were only an example, clarification from the floor debate:

"In one sense all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States [they are still expected to obey the laws of the land and be punished for breaking them], but they are not subject to the jurisdiction of the United States in every sense [they are still subject to the jurisdiction of a foreign government to which they owe allegiance]."

This is the same point that Turley brought up.

The Indians were not only an example; they were, even simply going by that article's representation, the core point of the debate, which was whether their exclusion was clear or not in the text. Due to tribal sovereignty, Indians were seen as being in a special relationship with the United States that applied to no one else who resided within its borders. Hence, the Fourteenth Amendment's Citizenship Clause did not apply to them, as affirmed in Elk v Wilkins. However, this logic applies to no one else in the United States, so the argument that Indians were excluded means nothing to the question of who else is covered by the Citizenship Clause, as was stated in United States v. Wong Kim Ark. In fact, given that that decision is essentially the focal point of the entire debate, as the question is whether or not it applies to children of illegal immigrants, it is curious that the article makes no reference to that decision.

[Terraceth]

You appear to be working at cross purposes here. Would not the intent of those who sponsored legislation be relevant for understanding the original meaning of a law as its text would have been understood when passed? It is not uncommon for arguments of law regarding statutes to refer to said statute's legislative history.

As I noted in my previous post, Scalia was famously dismissive of the idea of relying on legislative history for interpretation. Now to be fair, Scalia is no longer on the court, and he doesn't speak for all textualists, but the usage of legislative history for determining the interpretation of a law has long been controversial, particularly among textualists.

Which may or may not apply to illegal immigrants.

Whether the decision does or not, the case is absolutely critical to the question, to the point I feel no one should opine on the subject without having actually read the decision. But if someone doesn't want to read the full opinion, they should at least read this critical excerpt declaring the conclusions:

The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

Emphasis added. It does not say children born of legal resident aliens; it says all children born of resident aliens with no qualifier outside the ones stated immediately thereafter, which say nothing about legality. And this, as far as I can tell, echoes the opinion as a whole--at no point in the entire decision did I see any indication that the legality of the parents mattered in the conclusion.

That's not to say there can't or shouldn't be a court case to actually give a definite ruling on the subject, but I struggle to see how one can, under the precedent of United States v Wong Kim Ark, properly conclude that the Citizenship Clause does not apply also to children of illegal immigrants.

[seer]

Textualism does not look to the intent of the writers; to a textualist, intent is completely irrelevant, what matters is the text of the law, hence the name textualism. This is why Scalia would routinely refuse to sign onto any opinion that used legislative history as evidence.

Scalia's references to intent or legislative history are fairly brief, are there only to respond to points made by the dissent regarding intent, and are prefaced with statements that appealing to such things are dubious to begin with. They are never part of any major argument he makes.

Scalia was most certainty an originalist and did look at the intent of the original writers and their meaning. Since language changes over time how can you know the meaning of a text if you do not know what the writers meant? And I'm not speaking of legislative history after the fact, but what the writers of the text meant. https://www.youtube.com/watch?v=XUnI3gaEmGY

To quote Robert Bork

If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: "Law...." This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones. Any time he does so, he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people....the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.

http://cstl-cla.semo.edu/hhill/ui305...pretationa.htm

The Indians were not only an example; they were, even simply going by that article's representation, the core point of the debate, which was whether their exclusion was clear or not in the text. Due to tribal sovereignty, Indians were seen as being in a special relationship with the United States that applied to no one else who resided within its borders. Hence, the Fourteenth Amendment's Citizenship Clause did not apply to them, as affirmed in Elk v Wilkins. However, this logic applies to no one else in the United States, so the argument that Indians were excluded means nothing to the question of who else is covered by the Citizenship Clause, as was stated in United States v. Wong Kim Ark. In fact, given that that decision is essentially the focal point of the entire debate, as the question is whether or not it applies to children of illegal immigrants, it is curious that the article makes no reference to that decision.

Let me ask you something, if a french couple were in the US on vacation, and the wife happen to give birth early, would that child automatically be a citizen? If not, why not?

[Terraceth]

Scalia was most certainty an originalist and did look at the intent of the original writers and their meaning. Since language changes over time how can you know the meaning of a text if you do not know what the writers meant?

According to him, one interprets a text based on the meaning of the words at the time, not by any intention of the drafters at the time. "The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators." Although written by someone in disagreement with Scalia, I always thought this article was a pretty interesting good look at his philosophy and impact.

Now, obviously, no one sets out to write or vote for a law that says something other than what they intend it to say, so there is of course frequent crossover between original intent and original meaning. But that doesn't mean the plain text meaning of a law, even at the time of its passing, can't end up being something other than what was intended due to factors such as imprecise language.

And I'm not speaking of legislative history after the fact, but what the writers of the text meant. https://www.youtube.com/watch?v=XUnI3gaEmGY

I'm not talking about legislative history after the fact either, but the legislative history that was written down during debates, prior to a law's passing. And having watched the video, I do not recall seeing Scalia ever say anything about law's intents. He talks about the importance of following the original meaning, but does not mention original intent. Of course, the problem with a video is that I cannot actually search for particular words or phrases, so perhaps I missed such a case, in which case I would not have an issue with being corrected.

Robert Bork, according to your quote, apparently had a different opinion, and was an intentionalist rather than a textualist. At any rate, this is somewhat of a tangeant.

Let me ask you something, if a french couple were in the US on vacation, and the wife happen to give birth early, would that child automatically be a citizen? If not, why not?

From my understanding, the answer is yes, although it probably wouldn't be until the child reaches the age of 18 that the citizenship would actually be of any practical benefit to them.

[seer]

According to him, one interprets a text based on the meaning of the words at the time, not by any intention of the drafters at the time. "The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators." Although written by someone in disagreement with Scalia, I always thought this article was a pretty interesting good look at his philosophy and impact.

Now, obviously, no one sets out to write or vote for a law that says something other than what they intend it to say, so there is of course frequent crossover between original intent and original meaning. But that doesn't mean the plain text meaning of a law, even at the time of its passing, can't end up being something other than what was intended due to factors such as imprecise language.

I'm not talking about legislative history after the fact either, but the legislative history that was written down during debates, prior to a law's passing. And having watched the video, I do not recall seeing Scalia ever say anything about law's intents. He talks about the importance of following the original meaning, but does not mention original intent. Of course, the problem with a video is that I cannot actually search for particular words or phrases, so perhaps I missed such a case, in which case I would not have an issue with being corrected.

Robert Bork, according to your quote, apparently had a different opinion, and was an intentionalist rather than a textualist. At any rate, this is somewhat of a tangeant.

You can't have meaning without knowing what the writers intended to convey by the words. Scalia would even used history, like the right of self defense in English common law and how the Founders would have understood that in the Heller case.
https://www.law.virginia.edu/news/2010_spr/scalia.htm

From my understanding, the answer is yes, although it probably wouldn't be until the child reaches the age of 18 that the citizenship would actually be of any practical benefit to them.

I actually don't think that if someone happens to give birth here on vacation that the child becomes a US citizen. They are French citizens, their child is a French citizen.

[carpedm9587]

Or at least try. I don't think any European country allows this.

You are correct. This is largely (but not exclusively) a phenomenon of the Americas. 30 countries have this practice.

[carpedm9587]

I read elsewhere that Canada dropped it back in 2009.

In 2012, Citizenship and Immigration Minister Jason Kenney proposed to modify the jus soli birthright citizenship recognized in Canadian law as a means of discouraging birth tourism. ... As of 2016, however, Minister John McCallum said during an interview that there is no plan to end birthright citizenship.

https://en.wikipedia.org/wiki/Canadian_nationality_law

[seer]

Sen. Howard, from the original intent:

I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

https://www.nationalreview.com/2015/...itution/#_ftn3

[Sparko]

You can't have meaning without knowing what the writers intended to convey by the words. Scalia would even used history, like the right of self defense in English common law and how the Founders would have understood that in the Heller case.
https://www.law.virginia.edu/news/2010_spr/scalia.htm



I actually don't think that if someone happens to give birth here on vacation that the child becomes a US citizen. They are French citizens, their child is a French citizen.

The baby would probably have dual citizenship. This is the whole crux of the Birth-Tourism trade.

I think this is the sort of thing Trump is trying to change.

[seer]

The baby would probably have dual citizenship. This is the whole crux of the Birth-Tourism trade.

I think this is the sort of thing Trump is trying to change.

Well no, they shouldn't according to those who wrote and passed the amendment, see post #42 above. And for most of its history.

[JimL]

Well no, they shouldn't according to those who wrote and passed the amendment, see post #42 above. And for most of its history.

You don't understand the link you posted. Everyone born in the U.S. regardless of the circumstances, who is subject to the juristiction therein, is a citizen, period. Foriegners, and their families, who are here as Ambassadors, or Foreign Ministers are not subject to the juristiction and therefore, even if born here, would not be a citizen. Trump is lying to you once again. The wording of the Constitution is perfectly clear and there is nothing he can personally do to change that fact. It's another election time gimmick, like his new middle class tax plan lie. When are you going to learn!