Without a Country

I have always thought of myself as an American citizen. I was born in New Jersey (which, jokes aside, does count) and have a birth certificate that proves it. But suppose birthright citizenship were to go away? It wouldn’t be enough to prove I was born here: I’d need in addition to prove that one or both of my parents were citizens, or at least legal residents. (The latter seems enough to satisfy the usual argument about the meaning of “subject to the jurisdiction thereof”, but since this wouldn’t be settled law, who knows?)

My father was also born in this country, but again that’s insufficient. His parents were both from London, and if they ever applied for citizenship, I’ve never seen the paperwork. In fact, neither of their names appears on the Ellis Island website, and there are some hints that they emigrated to Canada first (within the Empire) and later entered the US in not entirely kosher fashion. My mother was likewise native-born. Her side has been here longer, but that only makes things murkier, as it would be harder to find an ancestor with an uncontested legal right to live in the US. Though it’s a bit discomfiting, I have to face the fact that I might, at this late date, become a stateless person.

Fortunately, the rest of the family is not in the same (metaphorical, or, if a country could be found to take me, perhaps literal) boat. My wife, who immigrated here in her twenties, has an official government document issued on the day she became a citizen, and presumably her unquestioned legal status would suffice for the children despite my shaky one. In fact, what might well save me would be a compassionate visa issued to keep the family together. But all of you who are native-born five generations back, well, you’d better find an immigrant to marry (or adopt) you, and damned quick.

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260 thoughts on “Without a Country

  1. If the law were changed to require that your (my) parents be merely legally residing here at the time of your(my) birth, that would constitute ending birthright citizenship, but wouldn’t require you (me) proving that one of them was a citizen; merely that one of them was legally documented. Which could be just as difficult. But ending birthright citizenship (as it exists now) doesn’t necessarily entail that only children of citizens gain citizenship from being born in the U.S. There are gradations of what it could mean.

    Harry Reid introduced a bill that would have done this in the Senate in 1993. He’s since, thankfully, changed his position.

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  2. Given my family, shaky legal footing would be an understatement. Perhaps my honorable discharge from the Navy would bolster my case.

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  3. For what it’s worth, I know some pretty hardy border hawks who passionately oppose birthright citizenship. None that I have talked to seem to believe that it should be reserved only for the children of immigrants. I mean, I’m sure some believe that, but Ted Cruz (for example) doesn’t. Ann Coulter might, but she also believes Cruz is ineligible for the presidency and she is Ann Coulter.

    What I’ve mostly heard, when specified, is that if neither parent is an American citizen, then one or both should be permanent residents.

    I assume that once somebody gets their social security number, their citizenship status could be associated with that. So citizens get one kind of card and non-citizen residents get another kind of card.

    If we were to pursue this (which we shouldn’t, for a variety of reasons), I’m reasonably confident that it could be done. If nothing else, we could investigate what Europe does and emulate the most effective and least burdensome model.

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  4. Interesting… no one with my last name ever came through Ellis Island. Cuz we misspelled it somewhere along the line. I am fucked!

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  5. I’ll always remember the conversation I had with the fellow at the consulate of the country in which I was born, when I called up to ask whether my having been born in his country (of American parents) entitled me to anything. It was a very short conversation.

    Opponents of changing American citizenship laws may soon find themselves forced to produce a better argument – or something better than the argument that “it’s just how we’ve done it and change is dangerous.” That’s not how progressives approach most other issues, by definition. It also is not common on the left to argue to some moral absolute on the question when it applies to other countries – for instance the right of the children of Israeli settlers to citizenship in the territory where they were born.

    As for global norms:

    A study in 2010 found that only 30 of the world’s 194 countries grant citizenship at birth to the children of undocumented foreign residents, although definitive information was not available from 19 countries.[5]

    Almost all states in Europe, Asia, Africa, and Oceania grant citizenship at birth based upon the principle of jus sanguinis (right of blood), in which citizenship is inherited through parents not by birthplace, or a restricted version of jus soli in which citizenship by birthplace is not automatic for the children of certain immigrants. Countries that have acceded to the 1961 Convention on the Reduction of Statelessness will grant nationality to otherwise stateless persons who were born on their territory, or on a ship or plane flagged by that country.

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

    In the meantime, the implicit argument in this post is obviously a red herring, since no one (to my knowledge anyway) is proposing that changes should be made retroactive.

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    • I don’t see how Trump isn’t, unless all of his proposed deportation is sneakily about getting parents to “voluntarily” take their citizen kids and leave. He thinks the parents and kids (Chuck Todd was specifically asking about citizen-by-birth kids of undocumented immigrants) all need to go – together. The ones who are alive now, not future ones.

      That’s what has the GOP so tied up in knots: this is not an uncommon view (not saying the most common, but not vanishingly rare) among immigration hardliners out in the country, but it has been ruled mainly out of bounds among acceptable candidates for GOP leadership. Trump doesn’t care about succeeding to that status (acceptable GOP leader), however, so he’s just saying what many people out in the country want to hear that the rest of GOP leadership won’t say.

      Even Scott Walker, who tried to go there with him, backed off of a position against birthright citizenship, and, as you say, merely being against b.r.c. doesn’t get you all the way to Trump’s position (retroactivity).

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      • Just to be clear: Abolishing or restricting birthright citizenship would be an adjunct to a generally more anti-immigration (or or anti-illegal immigration or or anti-non-documented… etc.) policy, removing one supposed incentive to illegal immigration and complication for an anti-illegal immigration policy (naturalized children with non-naturalized parents).

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          • I’m saying conceptually and practically BRC repeal is independent of any other anti-immigration or citizenship-restriction measures. What Trump’s total policy proposal was yesterday, is today, or will be tomorrow isn’t clear to me, and I’m not sure it’s clear to Trump or his followers either.

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            • ‘Anchor babies’, in the sense of a woman trying to have children to make the US government allow them to stay, are not actually a thing. Considering that those babies have to be 21 in order to try to sponsor any family members to ‘join’ them, and that only works if the family members are not already here, that seems a pretty damn absurd plan to become a legal resident.

              There *is*, however, a thing of wealthy (often Chinese) women coming over here to have children so one day that *child* can claim US citizenship. Some people say this is a hedge in case the Chinese government has problems, but in reality it’s entirely possible it’s just being done for a better possible future for their kid.

              But calling these ‘anchor babies’ makes no sense, because the plan isn’t for them to make the US government to allow people to stay in the US, the plan is that, someday, they (and probably they alone) can *return*.

              Also, there is the question of why the hell we’d need to worry about wealthy Chinese people *possibly* moving here decades later? This appears to be a trend in search of a problem. Do we even have any evidence they *are* moving here?

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              • Vox, from an unsympathetic perspective, summarizing the idea:

                the idea, broadly speaking, is that because a child born on US soil is automatically a United States citizen, adult non-citizens are having US-born children in order to manipulate the immigration system. A person who came to the United States illegally before giving birth — or who gave birth while here on a temporary visa — might be less likely to be deported later on because her child is a US citizen.

                When the US-born baby grows up, she could even deploy her status as a US citizen to petition for legal immigration papers for her parents on family unification grounds.

                The idea is that the baby exists as an “anchor” to keep the family in America.

                And later in the piece they assess the probabilities this way:

                Does having a baby on US soil really protect you from deportation?

                No. It is true that given the bad publicity involved, the parent of a US citizen is less likely to be deported than a childless unauthorized migrant would be. But 200,000 parents of US citizens were deported from July 2010 to September 2012.

                (My emphasis.)

                Who’s to say what an “anchor baby” is or isn’t? No one should be using the term.

                But if we’re going to talk about what things do or don’t exist, then a variety of things could exist. It may not make much sense to come to the U.S. when you are ready to have a baby in hopes of quickly gaining legal recency. But if you’re inclined to try to reside in the United States and have little hope of being able to secure documented entry and residency, you may see having a child here as something that will reduce your odds of being deported, especially if having a child was something you would have been inclined to do anyway.

                And while it’s the case that 21 years is a long time to wait before as U.S.-born relative can aid family members in gaining legal residency, it’s still an advantage you don’t have otherwise. Put it in your back pocket. It’s also not clear to me that parents couldn’t go back to the country of origin toward the enfd of the child’s youth and then seek to be unified with them as soon as the child hits 21.

                In any case presumably the legal immigration game is a lot about stacking up as many advantages in the system as you can to try to make your way forward from the very back of the line. Particularly if you’re in a group who isn’t going anywhere fast from there without any such advantages. It may be the furthest thing from a reliable strategy, but that doesn’t mean it isn’t a strategy.

                None of which is to say that seeing these kids as anchor babies is the right way to see them: they’re humans and fellow U.S. citizens. But in terms of identifying the policy concerns being articulated with the term and whether those concerns have actual “things” as their object, I don’t think “trying to have children to make the US government allow them to stay” or “[non-absurd] plan to become a legal resident” exhaust those concerns. Does having a child who is a birthright citizen reduce the chance you’ll be deported? Two strongly pro-immigration writers at Vox concede as much. Does having a child here provide one more potential path to legal residency that you would not otherwise have without that child, even if it’s an absurd path (within a system in which, for many, all other paths, if they exist, to legal residency are also absurdly protracted and fraught)? It looks to me like it does – in a way that is additive to overall advantages in the system.

                No one should be calling anyone’s children anchor babies regardless of what incentives exist under current law or how people are responding to them. But that doesn’t mean that there are not valid concerns about incentives created under current law. There’s no particular reason to think that when people use that offensive term, they don’t have ideas like the more general one Vox lays out in mind (generally manipulating the system, in particular merely reducing the likelihood of deportation and establishing at least one potential route to legal residency for some family down the road), rather than the particular one you do (somehow gaining immediate, reliable protection from all risk of deportation, or gaining a sure and quick route to legal residency for the family).

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                • In my view, the term – or one representing the concept – ought to exist if for no other reason than that it’s hard to discuss whether the concept exists without having a name for the concept.

                  I am skeptical that it exists in a particularly large number. If I recall, CIS (an anti-immigration group) investigated it and found that to be the case.

                  It probably exists in some nonzero capacity. Some may not understand the applicable laws or might hope for its change (wasn’t Obama’s executive order supposed to help these families?), though nowhere to the degree that we should assume anything of the vast majority of immigrants’ children in the US or of any in particular. And none or almost none are children who weren’t otherwise desired to some capacity, I’d have to think.

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      • I don’t see how Trump isn’t, unless all of his proposed deportation is sneakily about getting parents to “voluntarily” take their citizen kids and leave.

        I think that is the assumption. Which is what I suspect usually happens when parents with children are deported. I could be wrong that that’s what they do. But I doubt they leave the kids here and they (often) (and contrary to popular belief, especially on the right) don’t have a right to stay just because their kids are American Citizens.

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        • Yeah, I kind of got the sense that was what is formally being proposed in the white paper. In practice, of course, this would almost have to be the mechanism, since no amendment nor SCOTUS dexcision reversing BRC will be in the offing. However, it doesn’t really match the rhetoric IMO.

          Because Trump has made the following clear:

          – he thinks the 14th Amendment doesn’t require birthright citizenship
          – he thinks birthright citizenship shouldn’t be the policy
          – he thinks the undocumented have to go (the good ones can come back)
          – their kids, currently citizens, have to go with them.

          Given that, IMO, it would be remarkable if he would then specifically disavow a proposal to make rescinding BRC retroactively the mechanism for deporting the existing kids.

          But maybe that is his position.

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    • Given the state of Constitutional Law, I don’t think any other argument is necessary. It’s unlikely a sufficient number will support doing away with Birthright Citizenship to amend the Constitution. And I don’t think we’re anywhere close to a reversal.

      As for global norms, it’s (mostly) The Americas vs The World. What’s notable to me is that the movement has tended to be in the other directions (nations that used to have birthright citizenship moving away from it). But in Ireland they could have a referendum, and here we can’t.

      On the other hand, perhaps especially given the Constitutional constraints, I’d really hate to see us at the point where it’s like “Overturn Roe v Wade!” or “Overturn Citizens United!”… a rallying cry from safely behind the fence of consequence (more in the case of birthright and Roe than CU where the fence is thinner, I’ll grant).

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      • At the moment no other argument may be legally necessary, but it may increasingly become politically necessary – and that “movement in the other direction” is notable among other reasons for the divisiveness of the issue in many places: where, as here, immigration loosening is preferred by business and political elites, and backed by good left/liberal opinion, but opposed passionately by significant minorities, with a large portion of the populace potentially or actually up for grabs. An ostrich policy towards such “identity” issues is what helps to produce the likes of Trump here and Le Pen and UKIP over there, and the situation may well worsen if a) a new (or re-extended) economic crisis is in the offing, and b) war and political turmoil of the sort driving the current European refugee crises worsen and spread.

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        • I don’t really disagree with your point here, though I do not foresee a point – in my lifetime – where any other argument is necessary at least as it pertains to birthright citizenship. We can’t have a referendum, and I can’t imagine support of reversal ever reaching the point where an Amendment is feasible.

          That being said (and apologies if I’m repeating myself, it’s late):
          1) I do consider campaigning on the issue to itself be a harm, in part due to damaging rhetoric and in part because…
          2) There could be other form of blowback. Specifically, if they can’t get rid of birthright, they can more steadfastly promise to send kids back – free to return on their 18th birthday – and pursue anti-immigration policy in other ways that will make things more unpleasant.

          So I’m not sure how much we disagree, maybe a little maybe more than a little. On a personal level, I would very much prefer our presidential candidates not be campaigning on this issue… but at the same time, I consider the responses to discussion about it to be… suboptimal.

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          • I would very much prefer our presidential candidates not be campaigning on this issue

            Meaning birthright citizenship, not immigration generally, I assume.

            The problem is, when thinking through dealing with immigration in general, it is a very real and significant constraint on options. It’s difficult to enforce a restriction on the domain of immigration policy discussion that doesn’t implicate the question at least implicitly. The question is really how explicit the discussion about it becomes. And there will always be pressures on the right to deal with immigration in ways that do conflict with, or, again, at least implicate BRC. Which causes the press to make it an explicit discussion.

            We didn’t have to end up here quite this loudly (Trump’s ability to generate media heat being just one of those weird contingencies you can’t plan for), but if an election is going to dal with immigration, to some extent this issue will be part of that discussion. It was probably folly for the GOP thoughtmeisters to think they could run a primary election in which immigration didn’t playa significant role. From there, BRC is going to get implicated to some degree or other.

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          • I don’t know how much we differ either, but you and I don’t get to choose how The People judge what matters. The fact remains that the Constitution itself is secondary to the People of the United States. Says so right in the document itself, in the very first words.

            Among the issues potentially undermining the trust of the Popular Sovereign in its or our instruments and servants, immigration is an explosive one, since it relates to the means by which the People constitutes itself concretely. I’m not predicting that the People will decide to re-write the Constitution, or re-interpret it, or simply set it aside, but it or we can do so or find ways to do so, as the Supreme Court has demonstrated for us, sometimes to the applause of liberals, sometimes to the applause of conservatives.

            if disquiet over immigration is just a leading and central, triggering symptom within a syndrome of political decay, then that’s problematic enough. I don’t see why you or anyone with a stake in the country’s future and a particular vision of the good society should remain confident that simple repression of the discussion will or could continue indefinitely to work just the way you want it to work.

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      • It’s unlikely a sufficient number will support doing away with Birthright Citizenship to amend the Constitution.

        I believe that there will be no further Amendments to the Constitution in my lifetime. Well, an outside chance if the Big Breakup happens sooner (or I live longer) than I think. And even then, that the various parts agree to do things “legally” rather than just establishing the new parts by other undisputed agreements. Anyway, tinkering around the edges is done; there will be at least 13 states opposed to any small changes. From here on out, sufficient majorities at the national level will simply reinterpret the words that are already there.

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        • Yeah, well said. We no longer require de facto Amendments to the Constitution.

          I look at what is going on in Europe (and Asia) and I find myself suspicious that the Big Breakup will be kicked down the road a ways by the violence that is going to erupt out there.

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          • We no longer require de facto Amendments to the Constitution.

            Seems to me that’s not a cultural/political failing or anything to lament as a loss or any of that. Pragmatics drives the bus and it always has, and the appeal to principles takes a back seat to that, seems to me. And as society gets more complex folks hold increasingly more nuanced views about not only policy but mechanisms to achieve political goals. I mean, personally speaking here, I understand even your arguments in favor or a robust reading of the second amendment as being pragmatically rather than principally motivated. (For other folks it’s ostensibly purely about the principle…)

            But again, it’s not like something has been lost – a “purer time when principles meant something in this country {{sigh}}” – but rather an inevitable because always present consequence of folks trying to “get their way” in a complex world.

            (Hidden deep inside that comment is one important reason I’m not a libertarian.)

            Adding: there are two paths to a revision of birthright citizenship. One is to pass an amendment amending an amendment. The other is to present a challenge the existing SC interpretation of the 14th which rises to the level of the SC where the majority decides to go in the other direction. So, consistently with our own constitutional principles we don’t need an amendment to achieve that particular outcome.

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            • I’m not really lamenting the change (anymore) as much as noticing that it has some serious unintended consequences. If we are allowed to read the 14th Amendment as if the Constitution were a Living Document, we can suddenly find ourselves in some seriously nutty places.

              And we don’t seem to be slowing down.

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              • Well, if we take it as a given that every change to the status quo entails unintended consequences and we take it as decisive that any change which creates unintended consequences can’t be justified, then we’re left with only supporting the status quo, yes?

                Ever since the butterfly effect went public we’re stuck in [epistemic!] stasis.

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          • I look at what is going on in Europe (and Asia) and I find myself suspicious that the Big Breakup will be kicked down the road a ways by the violence that is going to erupt out there.

            I have a bet with Kolohe, dated 5/30/2014, that 25 years from that point the US will no longer be a global conventional superpower.

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            • I’m not sure I agree (don’t disagree either) but I’m curious as to why you think so. My own inclination is to view the absence of centralized economic decision-making relative to other emerging nations as a real impediment to maintaining the US’s place of global economic privilege. (Centralized military decision-making, which the US has relied on so extensively, doesn’t seem sustainable to me.)

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              • I don’t disagree with that. But I assert that along several axes — energy, economy, politics, personnel, weapons systems, allies — the costs of maintaining effective global reach will be relatively too expensive. How many places are there in the world today where the US almost certainly wouldn’t be able to pull off an invasion and occupation? How many more/less do you think there will be in 25 years?

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                  • Yes, and as the American public realizes that the quite expensive two-theater forward presences are largely wasted effort, they will be dismantled.

                    If I were a national leader in Japan, somewhere in the government I would have a group of people looking secretly and in detail at the Israeli option. Japan could put together a nuclear deterrent in a year or less — they have tons of plutonium stockpiled and rockets suitable for delivery. The rest is straightforward engineering. China would make loud noises, but so long as Japan stayed well clear of the South China Sea, it would just be noise.

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    • I personally don’t feel like I have a right to tell you guys how to run your citizenship, but I do have to agree with your point that most of the world does not have birthright citizenship, and we manage OK without generating a massive number of stateless persons.

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    • I’ll carry the burden of explaining why we can’t disregard the 14th amendment for current political preferences just as soon as I hear a compelling justification for the second other than simply that it was written.

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    • for instance the right of the children of Israeli settlers to citizenship in the territory where they were born.

      …what the hell are you talking about?

      There are, indeed, Jewish settlers, living in Palestine, that have said they’d continue to live there as Palestinian citizens. Presumably they also want their children to be citizens.

      But there is no *actual* objection to them being Palestine citizens on the part of Palestine or ‘the left’. Now, there is the point that they are usually living on *stolen* land, so, uh, so once Palestine government is actually in charge, said government is probably going to take the property back and give it to the actual owners. But that has nothing to do with citizenship.

      There is also the oddly delusional idea that many of these settlers have that they could continue using Israeli services, which means they are expecting a *remarkably* open board and mixed economy. I mean, props for the idea that magically all the tensions and inequality disappear, but, uh, that’s somewhat unlikely.

      But, anyway, no one on the left is ‘objecting’ to birthright citizenship…in fact, no one’s even *talking* about the concept. A couple of settlers saying ‘We’d like to stay even if this ends up being Palestine’ has almost nothing to do with birthright citizenship. (And most of those settlers have very delusional beliefs as to how the border will work and whether or not the government will let them keep ‘their’ property, so this is sorta stupid to even talk about. Once they realize how this will actually work, they’ll go back to Israel.)

      In fact, most of the objections to the settlers saying this appear to originating from the *Israeli* government, which seems think this is unsafe.

      And I’d also point out that, legally, Israeli settlers, even if they are living ‘in Palestine’, are *not* under the jurisdiction of Palestine in the first place, and hence even *if* Palestine’s constitution had a word-for-word copy of the 14th amendment, such children would not be citizens anyway, and this entire premise for comparison is stupid! The children of occupying forces are not American citizens under the 14th, and while we’ve never actually have a *court* case saying so, I rather suspect the children born in of a civilian settlement created by, guarded by, and under the jurisdiction of an occupying force wouldn’t be counted either!

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    • I will trade birthright citizenship for a constitutional amendment detailing a maximum process for citizenship that Congress can’t muck with for populist entertainment purposes.

      I’ll think about a formal proposal.

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    • I know you’re being sarcastic, but there are times that I think that in the long run, the best solution would be for the U.S. and Mexico to merge into a single state (or rather, for Mexico’s constituent states to become the 51st-81st states of the US). It solves the labor-movement issues, gives direct economic assistance to Mexico, forces us to deal with the drug and firearms problems we’ve dumped on them, and massively narrows our southern border. Issues of nationalism and culture on both sides of the border aside, I think James Polk really missed an opportunity back in the day to square that particular circle.

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      • I’ve read pieces that assert that some business people in the northern tier of Mexican states are quietly discussing secession from Mexico City, followed by an immediate request for some sort of linkage to the US (territory, protectorate, something). The arguments advanced are that those states are significantly richer than the rest of the country and trust an occupying US military to push the worst of the drug cartel violence south into the next tier of states.

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        • I’ve read pieces that assert that some business people in the northern tier of Mexican states are quietly discussing secession from Mexico City, followed by an immediate request for some sort of linkage to the US (territory, protectorate, something).

          The first question that springs to mind is, would Mexico actually allow that to happen? (Which is not really the same question as ‘Is it legal?’, but it’s close.)

          The second question is: Do we actually want a *completely* unstable and poor region directly to the south of us? Why would we think this is a good thing?

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            • Damn, you beat me to it.

              Anyway, that region is there whether it’s a part of the U.S. or not. It’s just that currently, we have very little ability to actually do something about it.

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              • No, I was responding to the ‘Let just the *north* part of Mexico join us’ idea.

                What that would result in is us completely losing our buffer against the drug cartel territory, while still not letting do anything about the actual problem areas.

                *And* it would result in Mexico losing a good deal of their tax base, so now they can do even less!

                Letting *all* of Mexico into the US would result in problems being solved.(While being completely unlikely to happen.) But letting just the northern prosperous parts of Mexico into the US would be very stupid.

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      • A north American union would be bad for Mexican elites & Canadian non-elites, good for Mexican non-elites and Canadian elites, but the conventional wisdom believes the reverse to be true.

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      • (or rather, for Mexico’s constituent states to become the 51st-81st states of the US)

        I was going to say that would result in a lot of states, and I assumed they’d be over-influential population-wise, but then I realized that Mexico has slightly less than a third of the population of the US, so 31 states isn’t *that* unbalanced.

        That said, it is slightly too many, and you know that would be an issue. Luckily, as far as I know, Mexico’s states don’t have any sort of sovereignty and can be rewritten by whim (Unlike US states), so we could let in Mexico and rewrite their state borders at the same time down to about 20 or so. (We’d have to do this anyway, there are apparently some border disputes?! I’m not sure whether they mean actual ‘disputes’, or the sort of thing that Georgia’s doing with the Tennessee River, where an area that is ‘supposed’ to be in one state ended up in another for a long time, and now the original state is trying to regain it.)

        And also figure out what to do with their Federal district, which has way more than enough people to be a state by itself, in only 577 square miles.

        And I’m saying this like the US would decide this stuff, when in actuality it would be some extremely complicated treaty hashed out between Mexico and the US.

        Of course, this will never actually happen. The US will never agree to it, and Mexico will never agree to it.

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    • Here’s what it’ll say:

      AMENDMENT XIV
      Passed by Congress June 13, 1866. Ratified July 9, 1868.

      Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

      Section 1.
      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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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        • …Why do you think so? Or what point are youmaking?

          I think he might be inclined to lay out some of the history of how this all has worked in practice and under statute since the passage of the 14th Amendment (and before) as he does a little bit in this thread.

          Sounds to me like there’s a fair amount more specific useful historical knowledge (also being put to practical use in his work) where that came from.

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          • The point that birthright citizenship is a constitutional mandate for anyone born here and subject to our laws (not Indians by that amendment–just later law; not children of high-ranking diplomats).

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            • This is not something just about anyone denies.

              But is there nothing more to say about the topic? Some reason to think Lee was going see it that way?

              Lee has a fair amount of specialized knowledge of the legal forms and history in this area (at least compared to a lot of us here). He can be in complete agreement with you about the clarity of the constitution on the point and still have valuable additional insight to add to help us fill in the picture.

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      • Informed argument from the right on the Constitutional question and legal meaning of 14th Amendment:

        A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Simple legislation passed by Congress and signed by the president would be constitutional under the 14th Amendment.

        Read more at: http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution

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          • The argument turning on the “jurisdiction” clause is a good example of applied “textualism,” which is not synonymous with “plain meaning” and even less with “what people understand when they glance at the passage, while ignoring the parts they find inconvenient or do not understand.” It certainly doesn’t mean “let’s interpret the law according to interpretations based on unfamiliarity with the terms that make it up.”

            Regardless of what school of interpretation you prefer, or are expected to prefer, if “word gets out” that the 14th Amendment was not understood by its framers and was not applied in succeeding generations in the way that it is today widely interpreted, then the Constitutional barrier to reform is undermined, and the potential for turning the issue into a normal political question is strengthened.

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        • Uh, not really.

          The confusion there is a misunderstand of ‘The United States’ in the 14th, assuming it is a reference to the country, and thus, as Native Americans obviously under the laws of the US, that’s not what ‘jurisdiction’ could mean.

          But Native Americans are, in a very strange sense, not actually under the jurisdiction of any state.They’re under the jurisdiction of their tribe. Not just when they are on tribal lands.

          And this was *much* more true in 1865, when we were still making treaties with the tribes. Native American reservations were legally considered separate *nations* until 1871. Even after that, general Federal law didn’t apply. (There were specific laws made instead.)

          And even *after* that, Indian nations were still not considered part of the US. Here’s a quote from the court in 1886 about the change in 1871: [The US government] has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States…. The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection.

          I.e., Indian nations were basically considered to be within the ‘geographical limit’ of the US, but not actually part of the United States of America.

          And, oddly enough, that’s sorta how things stand even to this day. To this day, the tribal nations *still* do not have access to US courts, and thus, in some weird way, are outside US jurisdiction.

          Whether or not they’ve become so entangled with the US that they aren’t ‘really’ outside US jurisdiction, and thus whether birthright citizenship *would* apply, is an interesting question, but rendered sorta moot by laws saying they are.

          But just pretending ‘The laws used to exclude Native Americans from citizenship even after the 14th’ is misrepresented a very convoluted topic and has very little bearing on whether or not the laws can exclude someone born in Nevada by people entirely subject to the laws of Nevada.

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          • tl;dr – Senator Jacob Howard is entirely, 100% correct. The 14th amendment couldn’t possibly make Native Americans US citizens, because Native Americans, in 1865, resided in *other nations* (Which happened to by physically located within the US) that the US made treaties with.

            Whether he’d be correct *now*, after the US sorta-kinda-but-not-really annexed the tribal nations, but they’re really still legally separate, maybe, a little, but maybe not…is an interesting question, but one that hardly seems applicable to *anything else*.

            Edit: I changed ‘countries’ to ‘nations’, which is somewhat more accurate.

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        • American Indians are different because (like foreign diplomats of sufficient rank) they are not “subject to the jurisdiction thereof” in the sense that Indian land is (usually) a sovereign nation. Which the article acknowledges. What the article refuses to even mention is that taking away constitutional rights is different from expanding rights beyond constitutional requirements.

          Senator Howard’s statement, however, is unlikely to be persausive as to the article’s broader assertion that people subject to US law are nevertheless not subject to its “jurisdiction” particularly as the Supreme court has specifically approved the concept (thought the article seems to think the dissent would prevail now for reasons that it doesn’t really specify).

          Nothing about the founders has any relevance to what an 1868 amendment means.

          There is no logical reason why the right to expatriate has any conflict with the right to claim citizenship when born in the US.

          In short, the article reads to me as faux-erudite subject changing that only approaches the point it suggests it is making by quoting one sentator’s statement and offering no additional information to overcome my suspicion that it is doing so selectively and in contrast with what a full review of legislative history would find.

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  6. Jus sangrias citizenship does not work in country with large numbers of immigrants. Unless we really find away to effectively seal the borders and really reduce immigration, which seems basically impossible and prohibitively expensive in the modern world, jus sangrias citizenship will lead to some problems. We do not want a situation where we have millions of people born in the United States but who are not and could never be birthright citizens. It would lead to the same sort of problems being faced in Europe.

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    • I think you mean jus sanguinis. Jus sangrias would be citizenship for sangria drinkers, I think. Not sure about the size of the constituency for that.

      At least you provide the basis for a rational argument against changing the law, which is a step above “the elders did it this way and old ways can’t be changed.”

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    • They could never be birthright citizens, but is there some reason why naturalization would be ruled out?

      The reason that many people insist on undocumented immigrants leaving and then seeking lawful entry (and then perhaps citizenship) is because those immigrants broke a law by immigrating. In the view of many, to sanction their presence without forcing them to respect U.S. law by gaining legal entry is to invite disregard for U.S. immigration law.

      People who are born here didn’t make any decision to break U.S. law. There’s no corresponding reason not to offer them at least a path to citizenship upon becoming adults (or sooner), like any other person seekingto naturalize. The issue is what legal status to accord them while they are minors. They would indeed be in a limbo of some kind, unless a status were created. But a status could be created, one that, while not citizenship, would be a status from which there is but a short step to citizenship.

      I’m not saying I favor this policy. I favor birthright citizenship. But it seems to me that, while it’s technically true that without birthright citizenship, there would be a class of people born in the United States but who are not and could never be birthright citizens, it’s not true that that is a class of people who couldn’t be eligible and indeed prime candidates for naturalization at the age of majority or sooner. The issue is just what legal status they have before they do that – but that can be very straightforwardly dealt with under statute (in a non-14th-Amendment birthright citizenship United States). Again, I’m not saying I don’t want them to have birthright citizenship. But it’s not the case that without it, you have a class of people who can’t be citizens. All you have to do is set out the process to naturalize them (which we currently have in place in the 14th Amendment, and which I favor keeping).

      I find myself wondering how it is that these European countries find themselves with these multiple generations of native-born non-citizens, unless it’s by either a) affirmative choice (which, my point is, as a matter strictly of what our options are, we could consciously avoid in a non-BRC version of our country), b) inability to convince the populations to naturalize, or c) insufficient bureaucratic capacity (perhaps through insufficient resourcing) to effect all the naturalizations, or some combination of those.

      Again, it’s vastly more efficient to give birthright citizenship. But it’s also the very most open and generous policy we could have wrt people born inside our borders, and it’s dictated by the Constitution. Meaning, it constricts our options. But without that restriction, our options would be more various than you suggest here, I think, . It’s not the case that the only other option is a vast class of people who couldn’t become citizens. (I know, you said “could never be birthright citizens,” but given we’re considering the concept of “no birthright citizenship,” that doesn’t seem like anything more than a tautology.) They certainly could become citizens. They wouldn’t be citizens by birthright, but is that a major problem for the millions of people who have become citizens by naturalization? Unlike them, they could even become president (natural born + citizen). (Perhaps? Plausibly, I’d say.))

      It seems to me that the best arguments against this are 1) that it’s just needless bureaucratic hurdles to a desired state, 2)that the nature of hurdles is that some won’t clear it, so that we would in fact have a status of natural-born non-citizens (not that they could never be birthright citizens), and, above all, 3) Mike point in the OP, that it creates a potential nightmare for everyone else, who has every reason to believe they are citizens, to establish it. In a sense, it actually threatens U.S. citizenship itself by significantly reducing the clarity of how it is defined, putting everyone’s citizenship in a bit more jeopardy than current law does.

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    • The problem isn’t the large number of immigrants with a path to residency or citizenship, we don’t really have many of those.

      The problem is the large number of residence with neither. There are actually two way to fix that; the problem is that this group is too big.

      You can reduce the size of this group by releasing some of the constraints that prohibit folks from having a path to residency or citizenship, too.

      Right now, we spend gobs of money trying to keep them out while whittling down the path into the first group, which is about the worst possible solution.

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  7. I just don’t understand how people think we are supposed to end birthright citizenship is going to happen.

    Birthright citizenship is mentioned in the 14th Amendment. The 14th Amendment is around 150 years old. Birthright citizenship was also upheld by the Supreme Court in 1898.

    So where are the recall votes? Hawaii, New York, New Jersey, Florida, California, Mass, Illinois, Oregon, Washington, Minnesota, Connecticut, Maine, Vermont, New Hampshire, Colorado, Rhode Island are no votes to varying degrees.

    How do people intend to repeal the 14th Amendment?

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    • How we change it is easy if there is a will to change it. We all know the template. Determine what the outcome is to be. Shame those who resist the outcome. If in a hurry, question the definitions of the key words and principles involved, and shame those reluctant to re-interpret what previously they understood to be plain meanings. If it becomes “understood by everyone” that the country is a very different place than it was in 1868 (among other things it has around 12 times the population now than it did at that time), then maybe it’ll just be a question of breathing some “life” into our interpretations.

      I’ll note that it wasn’t very long ago that California voted in favor of Prop 187. Since then, the shame strategy has been deployed more effectively on the other side, and associating anti-repeal with the openly racist far right, or just with evil Republicans, might stall movement on the issue. The downside of this strategy for the left is that it makes the racist far right and the evil Republicans seem more “reasonable” to larger and larger numbers of people, while diminishing the force of oppressor-shaming through overuse. If the Constitutional barrier remains insuperable, but supporters can’t provide a good justification for the law, then it will remain politically exploitable, and, as previously noted, help to undermine general reverence for the Constitution and faith in the political system altogether.

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      • I don’t think you are quite getting what I am saying.

        Suppose an R president and R congress pass a law that eliminates birthright citizenship. This goes to the Supreme Court who invalidates it as being violative of the 14th Amendment as Nevermoor points out in the plain-text.

        Now the anti-birthright crowd needs to repeal the part of the 14th that grants birthright citizenship. Do you really think you can get this through Congress and the States without violence.

        Prop 187 was not too long ago but a lot has changed since then. Look at how much changed for SSM from 2004 to 2014.

        This is one of those weird areas where liberals end up fighting for the conservative status quo and conservatives are tear it all down radicals.

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        • Have you read either of the pieces I’ve linked on this thread? The one by Erler – http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution – makes an on first glance quite reasonable argument about what the “plain meaning” of the 14th Amendment language really is.

          I’m not a constitutional lawyer or scholar, so I won’t pretend to judge the merits of the case. As an observer of human affairs, however, I find that when people want a sentence to mean what they want it to mean, even when no one previously or in living memory had thought anything of the kind, they have a way of discerning the strengths of their own semantic arguments, and the weaknesses of the other side’s, but not so much the reverse, and on less obvious bases than the one that Erler presents.

          So maybe the R President and the R Congress pass a law, and the Supreme Court with Justice Erler writing for the majority supports it…

          As for the alternative, where exactly is threat of violence coming from?

          I don’t know about “tearing it all down,” but the conservatism of liberals – or Democrats, or the party of government – in relation to liberal policy and government or administrative prerogatives in place is nothing new. It’s more the norm than anything “weird,” and has been for most of my adult life, at least since Reagan. That’s not an argument against it, by the way, just an observation. On this issue, both sides have claims to conservatisms of different types.

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          • If we’re going to cite op-eds, here’s a guy who clerked for Clarence Thomas and is a former state solicitor of Texas that disagrees. Eugene Volokh, who’s quoting him, concurs on the constitutional issues. I’ll put them up against NR’s state college professor cum right-wing think tank denizen (colleague of such luminaries as John Hindraker) any day of the week.

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          • That article focuses on political allegiance. Isn’t that determined by the individual, not by the state? I think we get into even greater issues if the state can say, “No, we do not consider you to pledge political allegiance to us. Sorry. No citizenship for you.”

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            • Isn’t that determined by the individual, not by the state?

              The question would apparently be to whom one “owes allegiance,” which would be an objective determination according to facts and the law. In most cases, I daresay, an infant will not be capable of expressing allegiance to a state.

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              • That question has nothing to do with the text, plain meaning, or non-cherrypicked legislative history of the 14th Amendment. The question is whether someone is born here subject to US law.

                At the time Native Americans weren’t. Today it’s a much smaller group (e.g. children of high ranking foreign diplomats). But even if today NO ONE was, that would still mean that the people ratifying the 14th amendment were referring to Native Americans. We wouldn’t have to roll our own group to “give meaning” to the clause.

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          • Ugh, what is convincing about that? The jurisdiction clause was clearly meant to exclude Native Americans on reservations, and no reading, no matter how dishonest (as in this case) can reasonably exclude anyone born on American soil.

            The intellectual dishonesty of American partisan politics is disgusting.

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              • If we’re going to discuss it, we shouldn’t be dishonest, as the author of that article is. However, the 14th is clear: if you’re born here and are subject to our laws, you’re a citizen. The amendment admits no wiggle room, except through dishonesty.

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                • I will add that what bugs me here is the same thing that bugged me with your ID links: someone who acts like an expert, and may even claim to be one, who lies in service of an agenda shared by most of his or her readers who are not experts, and therefore unable to detect the lie, and inclined to believe it because they share the agenda.

                  It’s not a behavior exclusive to the “right,” of course, but man is it rampant there.

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                • That maybe so, howver i doubt that drafters thought there would be a time when our leaders would fail to secure our borders and encourage folks to come here illegally

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          • Among other curious features of that argument is the lack of mention of why one might conclude that Indians were not under US jurisdiction. Even an open borders advocate like myself would be willing to consider repealing birthright citizenship if said repeal was accompanied by handing over the kind of powers enjoyed by tribal governments to undocumented immigrants.

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            • Among other curious features of that argument is the lack of mention of why one might conclude that Indians were not under US jurisdiction.

              Because they *weren’t*? In 1865, the US government was still writing treaties with Native American tribes. Hint: The US government does not write treaties with parts of itself.

              They were treated as separate nations that just happened to be located within the borders of the US.

              This, in a sense, changed in 1871, and in another sense, hasn’t ever changed.

              Tribal sovereignty is a long and complicated discussion, and a lot of people here have no knowledge of the *really* odd classification that tribes have *even to this day* WRT to US jurisdiction, and really should do a bit of research into that before blithely posting, ‘Herp derp, of course Indians were under the jurisdiction of the US, and yet the 14th didn’t apply to them, so the 14th must not actually mean ‘jurisdiction’ in that way’.

              See my post above.

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              • I should probably be less cryptic; my complaint is that the NR writer completely ignores the history you mention and instead pretends that Congress made an arbitrary determination of who was under their jurisdiction. It’s staggeringly dishonest.

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                • Oh, sorry, I thought by ‘that argument’ you meant that *Chris* was saying that Native Americans weren’t under the jurisdiction of the US, but he’d failed to explain why he could think that.

                  Anyway, yeah. The jurisdiction of Native Americans and tribal lands is extremely complicated and subject to all sorts of weird considerations, and anyone who claims ‘But Congress used to make Native Americans not subject to the 14th’ either is lying or has absolutely no idea what they’re talking about, because tribal lands were 100% then, and to some extent still are, *actually* not subject to US jurisdiction. Like, literally. Like, they are actually another nation.

                  Guys, there are all sorts of weird jurisdictional things that happened in the US. The tribal governments are one, the Philippines were one, the Panama zone was one, there are unincorporated territories vs. incorporated territories, there’s people beng born on ships in US waters, or in airplanes, there’s a set of cases called ‘Insular Cases’ that goes into more detail, a lot of stuff over the years.

                  And I also know that absolutely *none* of those jurisdictional oddities of apply to 99.999% of the people that Republicans are talking about, and the only way to make them apply would be for Congress to *forfeit Federal jurisdiction* over US states. (And, heh, it can’t actually do that under Article VI of the constitution.)

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          • “The one by [National Review] makes an on first glance quite reasonable argument”

            Cheap shot: Modern conservatism in a nutshell. “Hey, the words were in a non-self-refuting order. The idea has merit and must be treated with due ‘views on shape of world differ’ credit!”

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    • Not that I endorse this, but…seriously? NewDealer wants to know how to get around an inconvenient constitutional restriction?

      If only there were some historical precedent!

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  8. Actually the question becomes do you define undocumented as under the jurisdiction of the US. The current exception is those whose parents have diplomatic immunity. So the legal question becomes what does under the jurisdiction mean? The current answer appears to be subject to criminal prosecution for bad acts. Which would not allow the change.
    Anyway such an amendment proposed would probably take the route of the 21st amendment and go to state conventions. Interestingly if you did amendments this way you would have the state by state referendums on the issue at hand.

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  9. Good points Mike. It’s sorta strange, as you mention, that if birthright citizenship is canned as a sufficient condition for US citizenship, not only you and me but The Donald himself (probably) couldn’t establish his American Heart bonafides. Seems like the only people who’d satisfy the condition would be folks who were officially and affirmatively granted US citizenship by the fedrul gummint via an application process and presumably the children of such Officially Sanctioned persons. If push came to shove, there’s no way in hell I could demonstrate, in my own case, that I’m here legally. Which is weird. (I mean, I’ve been called UnAmerican before, and maybe those folks were right afterall!)

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          • Well – yeah – that’s kind of the idea: Make it harder for people to claim citizenship. Somehow Botswana, Thailand, and Austria manage to deal with the complexities. Could be that they are just born better able to deal with them, I guess.

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            • Botswana and Thailand aren’t prime immigrant directions and Austria is very Far Right by Western standards. According to Wikipedia, while it is nearly 10% immigrant, the largest immigrant groups are from the former Yugoslavia and it has a low naturalization rate.

              The people who want to get rid of birthright citizenship believe that doing so will somehow lower the amount of immigration to the United States. Considering how many migrants are immigrating to Europe, there doesn’t seem much evidence of this. This makes getting rid of birthright citizenship problematic.

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              • It’s precisely because the US and Europe are “prime immigrant directions” that there are popular movements to deal with the question. So that’s an odd argument against BRC repeal or re-interpretation: like arguing against gun control because states with strict gun control laws have gun violence and gun trafficking problems. It may even be the basis of a tenable argument under some constructions, but facially it’s an absurdity that somehow manages to persuade people already inclined to see things a certain way.

                I picked those three countries somewhat at random, though I guess we could go through all 164 non-BRC countries one by one. As we prepare for this no doubt fascinating if time-consuming exercise, we should consider that anti-immigration activists have their own ideas of the “problematic” nature of the current situation and current trends as they see them, and are eager to get into a comparison of “problems.”

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                • Europe is already filled with blood citizenship countries. The migrants keep coming. I do not see why this would be any different if the United States if we become a blood citizenship country. Unless the developed world becomes a completely undesirable place to live or conditions radically improve elsewhere, your not going to stop human migration. I’m rather sure that the anti-immigrant crowd is not going to want implode their standard or democracy to stop migration.

                  Stopping human migration and deporting all the undocumented aliens would be a expensive beyond belief. In a tax shy United States, I’m not really sure how your going to fund it. We are talking about an amount of money and policing that will make the War on Drugs look a cheap humanitarian mission.

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                  • Europe is filled with money and with very generous welfare states. It makes up for its relative strictness regarding citizenship by relative laxness or leniency and generosity in other ways. In addition to offering material support to non-citizen residents and supporting very open asylum laws (trying to make up for past sins, is the general interpretation), in much of Europe non-citizens even have the right to vote to varying degrees (in local elections, mainly).

                    The right will argue that the problem would begin to handle itself, or take on a form that could allow for it to be handled, once the combined incentives and disincentives were in proper alignment. The expense or, as typically, the mass anguish, in deporting “all the undocumented aliens” is a straw man argument. No one (who counts) is proposing it (just as no one is proposing revocation of already established citizenship). Remember poor Mitt Romney’s sin of using the term “self-deportation”? It was old and familiar shorthand to people who had actually been discussing this question (on other than open borders presumptions) over the last several years, but using it was treated as laughably bizarre – not to mention cruel, and, of course, racist.

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            • Yes, that’s the idea. There are some reasons why it might be desirable (to some). But on balance, I think the idea, per se, in our case, is not something we want.

              To some extent, on reflection, that is just about being against change in this instance per se. Because change just throws things into doubt, and I don’t see enough upside to changing away from a policy that is so admirably clear.

              So I guess that is another reason: not just that change throws citizenship into doubt just because it’s change (but it does), but also because in this case it’s almost necessarily change from something elegantly simple to something somewhat more complicated.

              Lastly (that I can think of now), there is the reputational benefit of this policy for us. It is admirably simple, and, as a result, notably generous. Like, so generous that we’re famous and admired for it the world over. Changing it would not only give that up, it would be an announcement of a rejection of the attitude of generosity that the policy has given us a reputation for.

              I just don’t see enough upside to changing it to overcome these points in its favor.

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              • I agree it would be a change of symbolic importance, something like a statement that the New World phase of world history, or the most recent epoch within the New World period, was over, and that the United States was now to be defined as “just another country like all of the others.” Yet many of the people arguing in favor of BRC will be the same people who embrace that idea and disdain any notion of American exceptionalism.

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                • That is a fair point, but you know that I am not one of them.

                  (I don’t disdain notions of exceptionalism, but I do sometimes wonder about our ability to sustain being exceptional, and in this sense I confess I have moments when I question whether fundamental commitments to constraints on policy like BRC-as-constitutional-principle (rather than elective policy) are in our best interest. So I understand where you are coming from in framing it that way. But on this in particular, I don’t think the upside is there. As I say, my concern is as much internal – with the sowing of doubt in an area where we currently enjoy crystal clear policy – as reputational. But I’m also not ready to move to wanting to send the kind of signal about the end of exceptionalism that you describe. I merely sometimes wonder what its limits are.)

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        • CK,

          Yeah, of course, The logic is to eliminate one incentive for folks to come here illegally, namely, to have kids who’d be granted US citizenship merely by being born here. As far as I can tell from a pretty quick remembrance of the arguments offered, that’d only take out a very small percentage of such-type cases: the ones where pregnant women illegally cross the border right before delivery to have kids here. And that does happen. Is it the cause of our Immigration Crisis?

          All the other folks who come here illegally and engage in secksual relations with partners of their own choosing and have romantic relationships and all that seem outside the scope of a revision to our citizenship conditions. THey’re here to work and end up having kids along the way, yeah?

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          • And because assault rifles aren’t the cause of gun violence problems, and are involved in only a small percentage of total gun deaths, we shouldn’t regulate them at all, right?

            I don’t understand what you’re getting at in the second question, but a jus sanguinis approach to the status of offspring would likely be based on the status of one or both parents. If a French diplomat and her husband happen to produce offspring while she’s stationed here, we do not automatically assume that the children are American citizens.

            I don’t know what the law says if her husband is American, and how much the decision is a matter of choice, how much an automatic determination according to applicable US and French laws. I don’t have any position at all on the matter. My purpose here isn’t to play amateur immigration lawyer or advocate for Trumpism or nativism. It’s mainly to point out that there’s more of a discussion here than most of you all seem prone to acknowledge.

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            • I don’t understand what you’re getting at in the second question

              That eliminating birthright citizenship won’t appreciably alter the number of illegal immigrants entering our country.

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  10. I’m struck by the power of status quo bias on this issue. As Will points out, not having birthright citizenship is the norm in pretty much the entire Eastern hemisphere. If you support any limitations on immigration other than background checks, it makes sense to close loopholes like this. If you want to liberalize immigration, I can think of any number of better criteria to use than “Had a mother who managed to sneak across the border or overstay her visa long enough to have a baby.”

    Birthright citizenship for children of illegal immigrants isn’t a sacred tradition—it’s a side effect of a constitutional amendment intended to provided citizenship for freed slaves. Amending the Constitution to limit birthright citizenship to the children of citizens and legal permanent residents (or taking the Rooseveltian* approach and just ignoring the plain meaning of 14th Amendment) isn’t some crazy far-right idea—it’s the logical conclusion when you start from the premise that immigration should not be completely unrestricted.

    But it’s different from the way we do things, so it’s a crazy far-right idea.

    *Actually, that’s not a fair comparison. Unlike with 20th-century commerce clause jurisprudence, you could actually make a case that this is consistent with original intent.

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    • “Status quo bias” here is “if you want to change this, you’d need to amend the constitution. You can’t. So this is pure pointless xenophobia.” That’s why it’s a far-right idea.

      *Actually, that’s not a fair comparison. Unlike with 20th-century commerce clause jurisprudence, you could actually make a case that this is consistent with original intent.

      Not honestly you can’t. Unless “original intent” means “selective quotations plus forceful ignorance”

      Listen, if you want to play constitutional convention, I’d be happy to discuss this, right along with an affirmative right to vote, repeal of the second amendment, and all the other things I dislike about our constitution. Might be fun.

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    • If we’re simply talking about ending BRC, it’s a position that is both supported by roughly half of the population or more and very much in line with international developed world norms. That’s only far right on an axis without meaning.

      The difficulty in changing the law doesn’t especially change that. Ending birthright citizenship is more consistent with mainstream opinion than the immigration views en toto of over 90% of the commenters on this site (including me).

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      • We disagree. It’s far right in the same way that arguing we should repeal the second amendment is far left. Neither will ever actually happen, so only those on the fringe are so insensitive to the message they are sending by advocating same that they actually try to make the argument.

        I’m not disagreeing with your point about international norms or polling.

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        • Actually, if you actually read the 2nd Amendment, you’d see that it’s not talking about the right of the people to keep and bear arms but it’s actually about a well-regulated militia keeping and bearing them, actually.

          This broad reading of amendments to benefit some ideology at the expense of the actual citizens of the US is poisoning our country. It’s a living document, not a suicide pact.

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            • Actually, if you understood what it meant by “this article”, you’d see that it’s making reference to… something else. What’s the Fifteenth Amendment, again? Eh, doesn’t matter.

              If you understood what it was saying, you’d see that the genie isn’t going to go back in the bottle.

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          • I’d be happy to have it read that way, as it would suit my ideological preferences to a T. That said, the text is: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

            To me, it’s pretty clear that the necessity of a well regulated Militia is preamble to “the right of the people to keep and bear Arms, shall not be infringed.” I also think it’s pretty clear that this amendment is a response to then-recent historical attempts to disarm subject populations by colonialist powers.

            If we’re going to have a constitutional convention, I think it’s pretty clear this is a stupid amendment now. The kind of “arms” that would make any difference in defending against a tyrranical US Army are things that everyone agrees private citizens shouldn’t have (at minimum, the kinds of arsenals that organizations like Hezbollah have: rpgs/artillery/ieds). And the difference between what “arms” meant in the eighteenth century and the twenty-first is enormous.

            But those arguments, just like arguments about whether we would prefer to create or not create birthright citizens, simply don’t go anywhere because we have the constitution we have, it says what it says, and we are very unlikely to be in a position to change it any time soon.

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  11. Just so this doesn’t get lost, I’m taking it back top level. More on the National Review’s cherry-picking. In CK’s article, they write:

    Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship.

    Read more at: http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution

    But that’s a flat out lie (or, at best, show of ignorance).

    Two recent cases support the understanding that any child born within the United States is a
    citizen regardless of the citizenship of the parents. INS v. Rios-Pineda, 471 U.S. 444 (1985);
    Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In INS v. Rios-Pineda, Justice White noted for a
    unanimous court that the “respondent wife (an illegal alien) had given birth to a child, who, born
    in the United States was a citizen of this country.” 471 U.S. 444, 446. In Hamdi v. Rumsfeld,
    the plurality opinion noted that alleged Taliban fighter Yaser Hamdi was “[b]orn in Louisiana”
    and thus “is an American citizen,” despite objections by various amici that, at the time of his
    birth, his parents were aliens in the U.S. on temporary work visas. 542 U.S. 507, 510; see 2004
    WL 608887 (U.S.) (Appellate Brief).

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    • Is it the opinion of the distinguished jurists on this comment thread that Richard Posner is “far right,” a liar, an evil heretic rightly giving LWA the willies, or some species of legal ignoramus?

      Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003). “[O]ne rule that Congress should rethink … is awarding citizenship to everyone born in the United States (… United States v. Wong Kim Ark …), including the children of illegal immigrants whose sole motive in immigrating was to confer U.S. citizenship on their as yet unborn children…. We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children…. A constitutional amendment may be required to change the rule … but I doubt it…. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense…. Our [judges’] hands, however, are tied. We cannot amend the statutory provisions on citizenship and asylum.”

      https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark#cite_note-Oforji-166

      As I have already stated, my point in linking the Erler piece and for that matter the other piece by Domenech, was not to advocate for the Trump/nativist position, but to point to a facially reasonable line of argumentation that a constituency and potentially a country determined to go that route, or push in that direction, could seize upon – for political purposes if not necessarily with any hope of winning on the specific legal or constitutional issue.

      I’ll also note that a bit of research (useful summary at the Wikipedia link above) shows that there is little or nothing in the Erler piece original to Erler. Erler recites analysis and argumentation developed by others, and in some instances discussed since before the 14th Amendment was actually passed. Unsurprisingly, most of the anti-BRC burden has been carried by figures that clearly belong on the right, but this being so will serve as a a sufficient indictment only on the left.

      The Volokh piece that OG Schilling links above offers a strong argument from the other side. I don’t personally find it fully convincing on the element of the case that is essentially semantic and historical – as to what was understood and intended in 1868 and subsequently by “under the jurisdiction thereof,” and as to the extent to which we are obligated to submit intellectually and politically to the legal near-consensus that has obtained since Wong Kim Ark.

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      • I’ll also note that a bit of research (useful summary at the Wikipedia link above) shows that there is little or nothing in the Erler piece original to Erler.

        Not surprising. As I said, it’s rampant.

        That said, if the discussion is whether getting rid of birth right citizenship is reasonable, regardless of its constitutionality, that conversation is taking place here and elsewhere without the need for intellectual dishonesty. We can leave Erler and the people he may be aping out of it entirely.

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        • This repetition of the accusation of “intellectual dishonesty” itself verges on intellectual dishonesty.

          “Erler and the people he may be aping” have put forth an argument regarding valid interpretation of the “jurisdiction” clause and its susceptibility to re-interpretation or re-definition, whether by acts of Congress or judicial revision. That argument can be assessed without resorting to attacks on the integrity and competence of those making it. I brought up Posner, and quoted him, because I am not aware of anyone who has attacked him on either score (and because you’d probably enjoy have a chat about Nietzsche with him). Among those taking the “ape” side historically was also the “Great Dissenter” John Marshall Harlan, who was arguing the minority (jus sanguinis) position on Wong Kim Ark just two years after making his honored dissent in Plessy v Ferguson. Though he was a “man of his time” in other regards, in other words something of a racist or racialist by our standards, the same can be said for the majority on Wong Kim Ark (the vote, incidentally, was mis-stated as 5-4 in Erler’s article – it was actually 6-2, with Harlan joined by the Chief Justice in the minority).

          The argument against a piece of settled law, or law taken to be settled, will tend to occur on different, independent but overlapping levels simultaneously. One level in this instance (and not unusually) is what amounts to a philological exercise regarding the meaning of key terms. Your insistence on a single clear, plain, only-liars-charlatans-cretins-apes-demur meaning of the jurisdiction clause reminds me of the marriage equality opponent incessantly and unshakably reciting a claim that “marriage is between a man and a woman.” The tactic worked tolerably well for opponents, until it stopped working, possibly in part because some had used it as an excuse to stop explaining, or recalling, why anyone should think that marriage should be between a man and a woman.

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          • My assessment of the argument is that it is dishonesty. You can see here why, and why I’m not the only one who thinks that. If you want to keep discussing it once its dishonesty has been noted, either because you don’t believe us (as you suggest here in accusing me of dishonesty), or because you have no problem with it because you want the ideas that result from it out there, then I’ll just stay out of it. And if you don’t think I’m being dishonest in my accusation, again shared and backed up by others, then I suggest you follow my example and ignore me on the subject.

            I will ask, though you do not have to answer: seeing that I firmly believe that he has to be dishonest about the history of the 14th amendment, why should I engage his ideas? You haven’t argued against the claims of dishonesty, merely stated that they are themselves unfair. So why? What would I get out of engaging ideas built on lies?

            You claim it’s a philological exercise, but I see nothing in his article to suggest he sees it that way himself, and even if that’s what he’s doing, that he has to mislead about history to make his meaning defensible again leads me to my question: why should I engage it? Where well it take us, intellectually, other than to poisoned fruit?

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            • Not to stick my nose into this too deeply (I have a big nose, afterall) it reminds me a bit of Rothbard’s argument that during the US civil war the South was engaging in a Just War. His argument relies on the claim that the war wasn’t fought in defense of slavery being true, and if someone were to reject his argument wholesale because that claim is false a defender could respond by saying “he’s jut engaging in a philosophical exercise etc yadda blah blah”. But at *that* point, why even bring up the US civil war since actual factuals are no longer relevant? The move to treating the argument as making a philosophical point would be viewed as glaringly disingenuous. (Which it in fact is, in that case.)

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              • Right, if someone were to point to other contexts (legal or otherwise, to start at least) in which “jurisdiction” can be reduced to “allegiance,” and not “subject to the laws of” (either as a conjunction or disjunction), an interesting conversation might erupt. As of now, we have “some historical inaccuracies, if they held, could lead us to interpret the text in a different way,” which can only lead to hypothetical conversations about counterfactual worlds that, to the extent that they have any lessons for this world, are unnecessary, as those lessons can be had easily without them.

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            • seeing that I firmly believe that he has to be dishonest about the history of the 14th amendment, why should I engage his ideas?

              No reason at all, since “engag[-ing] his ideas” is something you have already declared off-limits. You have declared yourself immune to conversation, incapable of dialogue on the particular matter. It is un-engageable for you, along with anyone who takes a position in favor of its engageability. Your silence on the questions I have posed to you directly, on arguments put before you in “plain” English, and on the examples I have given of competent observers widely honored for their integrity who have taken the position that you declare prima facie “dishonest” follows naturally from your presumptions. You have already declared honest disagreement impossible, so how could you possibly acknowledge its existence? Really, you might as well go talk about movies you hate on some other thread: It will have as much to do with these topics potentially under discussion for others, but not potentially for you.

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              • If the foundation for the position is historical positions that were not held, supported by carefully selected quotations removed from their context, as it is in this case, then anyone who, upon recognizing this, continues to argue the soundness of the argument is, by definition, being dishonest. Your honest sources (Posner is clearly saying something else, so if you’re lumping him in, you are being dishonest, by definition, as you know I’m not talking about his position, which says nothing about “allegiance” in the 14th, much less historical arguments for it, at least not in the quoted text), to the extent that they are making the argument in the NR piece, are being dishonest, by definition. You, to the extent that you fail to acknowledge both this and that it is what I am saying, are by definition being dishonest.

                I am willing to discuss birthright citizenship. I am even willing to discuss interpretations of the 14th that might rule it out for undocumented immigrants. I am not willing to discuss sophistry, dishonesty, misrepresentation of history and jurisprudence, and the like, as serious intellectual positions. I think I’ve been clear on this. If you want to continue to accuse me of ruling the topic, rather than that particular line of argument, off-limits, then I will, for now, follow my own advice about engaging dishonesty.

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                • If the foundation for the position is historical positions that were not held, supported by carefully selected quotations removed from their context, as it is in this case,

                  Presumably, someone making these claims has in mind 1) an assertion regarding a position once held; evidence that the position was not held, and 2) full contexts demonstrating that quotations have been made selectively and dishonestly. I don’t see where either of these have been produced in this discussion.

                  Posner is clearly saying something else, so if you’re lumping him in, you are being dishonest, by definition, as you know I’m not talking about his position, which says nothing about “allegiance” in the 14th, much less historical arguments for it, at least not in the quoted text.

                  You have stated categorically that no one could honestly disagree as to a plain and binding interpretation of the 14th Amendment establishing BRC, absolute except for special exclusions from “jurisdiction” (diplomats, soldiers, Natives – no one else). I do not see how Posner and Harlan, et al, could accept your interpretation, and maintain (Posner) that a Constitutional amendment would not be required to extend those exclusions to children of foreign nationals, or (Harlan) that Wong Kim Ark was decided incorrectly, and that the 14th Amendment should not be read as establishing jus soli citizenship in cases of the same type. On what other basis than an opinion in some ways more commensurate with Erler’s than with yours could they have reached their conclusions?

                  The notion of “owed alllegiance” as underlying “subject to the jurisdiction thereof,” and explaining exceptions at least including Native Americans, foreign diplomats, and soldiers of an occupying power may seem initially obscure, as is in the nature of close semantic scrutiny, but is not hard to understand. Another exception would be the child born to foreigners traveling in the U.S. or legally residing here whose citizenship in another country will remain uncontested (though in some circumstances may be a matter of choice). I don’t believe we see ourselves as in the business of stealing children from foreigners. We don’t make a policy of declaring all children born here but with citizenship established and accepted in other countries to be “ours.”

                  The argument made by Erler and others, that Erler and others claim informed the views of some 14th Amendment sponsors and contemporary interpreters, and that Harlan and Posner seem to support, is that “subject to the jurisdiction thereof” implies “complete,” or sole and entire, jurisdiction. In other words, a foreign diplomat today in the U.S. or, in 1868, a Native American non-citizen, would in fact be subject to U.S. law or under the practical “jurisdiction” of the U.S. or state governments – for instance, in committing an offense against a U.S. citizen – but also under the jurisdiction of other governments. The diplomat may enjoy immunity from U.S. laws, but may lose it, or suffer expulsion(*), so is in that sense under what, for purposes of this illustration (it is only an illustration), we could call “qualified” or “mixed” jurisdiction.

                  The theory of the opponents of your “plain meaning” argument is that the allegiance – or “jurisdictional status” in this construction – of a child born to foreign nationals in the U.S. should be presumed to be that of its parents, as indeed in some of the additional exceptions we also presume – just as we do not presume that children born to Americans in foreign lands (like me!) are automatically or morally-absolutely to be considered non-American.

                  We in other words accept jus sanguinis as a substitute for jus soli, both for our own citizens and their children “over there,” and for foreign nationals and their children “over here.” The Posner-Harlan-Erler “dishonest” position seems to me to be that in regard to the children of never-legalized immigrants, just as in regard to the children of non-immigrant foreigners here, or non-emigrant Americans there, it should be considered within the powers of Congress or potentially the courts to supply definitions and restrictions for presumptions regarding citizenship, or allegiance or owed allegiance or jurisdictional status, not immediately visible to all in the simple text of the 14th Amendment.

                  (* example deleted: I need to look into law and practice regarding diplomatic personnel and types of immunity)

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                    • Thanks for those links.

                      The first piece is too conclusory to offer much help on this particular question on the possibility of an “honest” disagreement between informed discussants. It does, however, introduce an argument that might give some second thoughts to rightwing BRC opponents:

                      …if being born in the U.S. does not establish citizenship, then the federal government would have to implement systems for producing, adjudicating, and recording the legitimacy of parents’ documents upon the birth of a child. This would likely require the creation of a national registry of U.S. citizens and affect not only children of undocumented immigrants, but also the children of all American citizens

                      Those interested in conducting a discussion with and even changing minds might consider arguments like that one in place of attacks on the character and intelligence of those who disagree with them.

                      The law review article I found much more interesting. Based on a quick read-through focusing on the subject under discussion here, I would say, preliminarily, that it is most successful casting doubt on the positive originalist case – that 14th A framers demonstrably intended a more restrictive reading of the text. However, the author’s own creditable acknowledgment of limitations for any attempt at a determinative originalist interpretation pro or con leads him to arguments by analogy (e.g., regarding gypsies) whose adequacy modern restrictionists will dispute. In the meantime he offers concessions on other aspects of the restrictionist logic and does not meet the whole of the opposing argument in my view.

                      In any event, I’d be interested in seeing a similarly high level response from an opponent. To the author’s credit, I think he would, too. Though a partisan on the issue, as he makes clear, his tone is collegial and respectful, even complimentary, toward the people whose ideas and reasoning he is criticizing. He nowhere makes any crude accusations of “cherry-picking,” and never impugns the integrity or questions the seriousness of his intellectual adversaries. He offers evidence for his assertion that they are wrong, and asks the thoughtful reader to reach his or her own conclusions regarding the matter in question.

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                      • I get that I won’t persuade the National Review guy by accusing him of (1) cherry-picking by quoting about two sentences of legislative history and implying it was the whole story and (2) being either dishonest or uninformed by asserting there has been no Supreme Court law since the 19th century. But he was both things, and that ought to help convince anyone here on the fence about how to respond to his article.

                        I don’t see any need to pretend he wasn’t. And specifically reject the idea that my burden is to pretend people like him are engaged in a well-intentioned quest for truth that is susceptible to patient and kind explanation.

                        You’ll note I haven’t made those allegations against the whole movement (or Posner specifically). I have said that politicians (e.g. Trump) running on the platform are appealing to xenophobia because they know they’ll never implement the policy change, which I think is true not because the policy is necessarily xenophobic in the abstract (seriously, let’s have a constitutional convention and hash out a bunch of these issues!) but because they are using it as a signal of their willingness to attack undocumented immigrants.

                        If Posner has laid out the argument somewhere, I’d be interested to read it. And I bet it’d be a damn sight more persuasive than the NR guy. If all he’s done is opine in a sentence that he “thinks” something I disagree with, I’m not really able to engage.

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                        • Chris extends his denunciation beyond Erler to all of “the people he may be aping,” and declares the argument itself “dishonesty.” As for your position, the approach of someone sincerely interested in testing the argument, when presented with a defective example of it, would be to address a superior rendition of it, or to strengthen the argument on your own. The other alternative is to set aside whatever can be gained from even the defective example, and focus on the apparent opportunity to put points on an imaginary scoreboard. It’s the difference between seeking a short-term political victory and seeking a better approximation of the truth.

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                          • Is Posner [1] one of the people Erler is aping, or does he have any genuinely persuasive arguments? If the latter, Chris isn;t taking about him.

                            And to be quite blunt, I do not go to NR looking for honest arguments, not do I think I’m missing anything that way. I do not think, for instance, that Obama is am anti-semitic, anti-American illegal immigrant, nor am I interested in reading Andy McCarthy to gain insights on whether he might be.

                            1. A respected legalist, not a political scientist associated with a partisan think tank.

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                            • Chris’ reference to “aping” came after the comment of mine which began with a question about Posner and quoted him. Chris then insisted on a distinction between Posner’s views and those of the apes, but has not yet answered my question on it. You can follow the rest above. Whether you find Posner’s or anyone else’s reasoning “genuinely persuasive” may depend upon whether you are truly open to an alteration of your own views.

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                              • Ugh, this is getting really annoying. If you go back to my aping remark, you’ll see that it is a response to one particular sentence of yours. A sentence I quoted in the comment. I’m done here. You linked the piece out of ignorance, which is fine, but you’ve continually misrepresented my position, showing exactly why it’s impossible to engage dishonesty: the only way it can be defended is dishonestly.

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                            • Posner is not. Posner’s never made that argument. He made a different one. CK’s lumping them together as the sorts of people I’m calling dishonest is, again, dishonesty.

                              Having done a little research, it’s clear now that Erler basically copied this, though even that work is honest enough to admit that there were other opinions in the debate, even if it fails to note that a.) the debate was settled with the view that it would mean the children of non-citizen immigrants would be citizens if they were born here and b.) the people Erler quotes who argued otherwise ultimately opposed the final language, specifically the “jurisdiction” bit. So it’s more honest than the NR piece that basically cribbed it, but it’s still pretty slippery.

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                          • the approach of someone sincerely interested in testing the argument, when presented with a defective example of it, would be to address a superior rendition of it, or to strengthen the argument on your own.

                            Huh? Why can’t I say the argument is stupid without spending hours searching for a better one?

                            As for “strengthening it on my own” I don’t see how to do that. The 14th amendment reads very clearly to me, so I don’t think there’s any argument there at all. If someone disagrees, seems like its on them to come up with a reason why that isn’t the faux-erudite garbage in the first article.

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                            • Exactly. Under this view, not only would you and I be required to seek out better examples of Erler’s argument (which I ultimately did, and found that they were less dishonest, but still dishonest in their eliding of the outcome of the debates they use to suggest “jurisdiction” might mean something like “allegiance”), but CK would be required to seek do the same with the counter-arguments, particularly as he found our criticisms wanting. Since he hasn’t done that, I can only conclude that CK doesn’t actually believe his own prescription here. I can’t really imagine anyone believes it, though.

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                            • Why can’t I say the argument is stupid without spending hours searching for a better one?

                              I gave the reason already. As for the second part, Epps disagrees with you, and within limits does a creditable job of trying to put the counterargument in a strong enough form to make it worth defeating. I don’t find attacks on the quality of National Review articles very interesting, while Chris’s determination to make the discussion one about “honesty” leads just to where Chris now finds himself: just where he began, except a little more “annoyed,” now grouping me with the lying apes.

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                              • Epps disagrees with you, and within limits does a creditable job of trying to put the counterargument in a strong enough form to make it worth defeating.

                                He definitely disagrees with me. I don’t think he does a creditable job of anything unless the “within limits” means “with a predetermined need to do his best possible job of one-sidedly advancing conservative political aims”, and made that clear in what (at least to me) seems like overwhelmingly convincing fashion. He’s wrong on the legislative history, wrong on the law, and empty of anything else relevant.

                                If you aren’t interested in knowing whether your starting source (about which you clearly did no pre-citation digging), then maybe you shouldn’t trust it to form your opinions.

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                                  • Whoops! Yes, I am.

                                    He (very politely) seems to agree with me throughout:

                                    Citizenship Without Consent is the foundation of the argument for a
                                    restrictive reading and thus merits a close reading. That I disagree with its
                                    conclusions should not suggest that I deprecate its
                                    scholarly seriousness. But I will suggest that it has two shortcomings:
                                    (1) it produces seemingly valid conclusions from the wrong sources and (2)
                                    it shortchanges and misunderstands the actual legislative record of the
                                    Clause.

                                    I (not politely) have said the other guy (Ehler?) is not engaged in any search for truth whatsoever.

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                              • I gave the reason already.

                                No. You didn’t. You just said debunking crap is nothing more than “putting points on an imaginary scoreboard.”

                                Let’s run the tape:

                                Someone (“S”) links to a dumb argument.
                                Someone Else (“E”) says “that’s a dumb argument and here’s why” with sufficient support to expose the deficiencies of the original argument.

                                Are you really saying E just failed to contribute anything relevant to S’ point simply because there might-somewhere in the world-be a better argument on the same subject as S’ link and E didn’t find or manufacture it before commenting?

                                Why does S have no agency in presenting the best possible version of their own argument?

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                  • Yeah, you keep accusing me of something I haven’t done. I have said that the 14th leaves little wiggle room, but I’ve also described types of evidence that would make me reconsider. In insisting that I’ve shut off the discussion of the 14th itself, rather than a particular dishonest argument, you, not I, have rendered the topic un-discussable.

                    With that said, there’s no reason for me to discuss it any further. If you would like, at some point, to offer an argument (if you read the Posner opinion without the ellipsis, he gives a brief one; you could just use that, though “Congress doesn’t always take this stuff literally” seems pretty weak to me), perhaps discussion will be possible again. Hell, if you wanted to have a genuine discussion about the 1866 debate and the civil rights act debate that preceded it, that’d be cool. We’d then know that the senators who didn’t want “aliens,” for example, to be citizens, wanted to change the “jurisdiction” wording to make that clear, and opposed the amendment as it is worded, and that when Johnson and others answered that the amendment would mean that children born to non-citizens would be citizens, the debate on that topic was over, we could go from there, instead of pretending that it was otherwise for contemporary political purposes.

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          • This repetition of the accusation of “intellectual dishonesty” itself verges on intellectual dishonesty.

            This doesn’t change the fact that a lot of the arguments for asserting children of illegal immigrants could be non-citizens *are* intellectually dishonest.

            As I have, at this point, repeatedly pointed out, Native Americans *actually are not* under the jurisdiction of the US, and that are more true when the amendment passed. It slowly became less true over the years, but at what point a threshold of being ‘under the jurisdiction’ was reached that would require BRC is unknown…perhaps it hasn’t happened yet, perhaps it happened after 1924, perhaps it happened *before* 1924 and that just never made it through the courts before Congress gave them citizenship anyway.

            *Anyone* using the example of Native Americans ‘being excluded from BRC by Congress’ is being intellectual dishonesty, period. (Unless their plan is for Congress to revoke Federal control over other parts of the US….which, oddly, it can’t constitutionally do for any part of an existing state.)

            Likewise, anyone using the example of foreign occupiers being excluded is ignoring the rather obvious point that foreign occupiers, pretty much by definition, are not under US law. The whole premise of a foreign occupation is that another country has located part of itself inside the US. (And, again, this has not ever been proven in court, as far as I can tell.)

            So, again, intellectually dishonest.

            The *closest* Congress has come to withholding BRC from anyone that is *actually* under the jurisdiction of the US is withholding it from embassy workers and other people. Yes, some of those have diplomatic immunity (Thus no jurisdiction), but some don’t, and yet those latter people’s children somehow aren’t US citizens…

            …or *are* they? The law may say they’re not, but there’s not actually been a court case about that, as far as I know.

            Someone wants to make an argument on *those* grounds, that there actually *are* a few people that logically should be subject to BRC, but aren’t (supposedly) by an act of Congress, is being intellectually honest.

            People make arguments using examples of people who actually *aren’t* under US jurisdiction are not being intellectually honest.

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  12. Birthright citizenship IS a sacred idea, and has been for at least the past 150 years. Yet in a climate of fear and anxiety, we now have serious people suddenly questioning it.

    I am actually more disturbed by the posture of cool detachment by intellectuals, than the hot raw anger of Trumpists.

    Because at least they have the honesty of their fear against immigrants. The posture of dispassionate analysis masks what would be in practice something every bit as horrific as the Japanese internment or Jim Crow.

    There isn’t any crisis provoking this, there isn’t even the fig leaf of some Lifeboat Problem, where such a horror might be justified.

    This is fear and cowardice, where America is suffering economic anxiety and depression, looking for an easy scapegoat and lacking the courage to make hard choices that affect us.

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    • So sacred an idea that one of the two major parties had eliminating it on their 1996 platform and the Senate Leader also supported nixing it during that time frame and roughly half of the public or more has, as near as I can tell, always supported nixing it.

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      • I would say this makes it more sacred.

        I find it absolutely tragic that the Republican Party is turning their back on one of their greatest accomplishments. Party of Lincoln to Party of Calhoun.

        I am not convinced one way or another that numerorsity of support corresponds with acceptability, ethics, or morality.

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          • Don’t we often talk about how tyranny from the majority is a sacred American ideal? The whole basis of the religious parts of the First Amendment are based on this. Isn’t this the basis of Liberty Enlightening the World? “Give me your tired, your poor, your huddled masses yearning to breath free. The wretched refuse of your teaming shore.”

            https://en.wikisource.org/wiki/Letter_to_Touro_Synagogue

            From George Washington:

            “The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.”

            And I am not very sympathetic to the idea that America’s greatness comes from having an Anglo-Saxon and/or Caucasian character based in Protestantism. I am not sympathetic to the grandchildren and great-grandchildren screaming “GET OUT” when their ancestors came here just as tired, just as poor, just as hungry, just as fleeing from persecution, and just as hated.

            Their grandchildren and great-grandchildren have learned nothing. Nothing.

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            • Tyranny of the majority is concept that applies to democracies and permits all sorts of negative analyses often culminating the necessity for robust conceptions of rights and rights-protections. Those considerations and critiques apply internally, so to speak, to the nations governed by democratic principles. Birthright citizenship doesn’t touch, even tangentially (seems to me) those issues, since if a person is here illegally then they aren’t logically part of the democratic process whereby majority meets tyranny.

              I mean, you might be saying that a majority of people shouldn’t be allowed to alter the concept of birthright citizenship, but not – if we’re using words with their conventional meanings – because it’s an example of tyranny of the majority. It isn’t.

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              • I agree that tyranny of the majority is not the applicable concept. I am glad that it is out of the democratic purview, though lament that a lot of people seem to think that this means the appropriate response in this conversation seems to rely solely on constitutional imperviousness and shrieks of horror at those who don’t think it’s a good idea.

                The pro-birthright side has gotten lazy. More the pity because they’re ultimately right.

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                • I’m not relying on constitutional imperviousness, but I am relying on the argument that broadminded acceptance of immigrants, and specifically citizenship of birth is a fundamental part of the American character.
                  That we have fallen short of it doesn’t change the fact that the struggle for “what American means” includes this.

                  And the shrieks of horror are justified. This idea is not generated out of some benign attempt to right a wrong or more equitably distribute resources or power.

                  The entire purpose of eradicating birthright citizenship is an unjust purpose. It is a deliberate attempt to inflict pain and suffering on an entire class of people.

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                  • I agree with you about what the American character should be, but it’s not really an argument except to those who share your priors. Ditto for the shrieks of horror.

                    These aren’t really arguments. If I didn’t agree with your conclusion it would do not a thing to move me towards that conclusion.

                    In fact, it would make me think you don’t have substantive or convincing argument at all.

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                    • Ahh, you want some erudite argument, that would, by its logic, compel Trumpists to admit their folly?

                      The people who fear and hate immigrants aren’t going to be persuaded by Brookings Institution graphs and Voxian explainers, because their fear doesn’t originate there.

                      When someone’s argument is that immigrants are an inferior type of human, dirty and criminal, then the most appropriate counterargument is a shriek of horror, a slap across the face of “how dare you!”

                      Their vision of immigrants, and of America, is itself an obscenity. We have seen it before, and we know where it leads.

                      Don’t let these people off the hook, and treat their ideas with dignity and respect.

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                      • Not do worried about convincing the Trumpkins. A little worried about equating the half of the population or more that disagrees with birthright citizenship as bring Trumpkins, having their concerns dismissed as Trumpism, and so on. Perhaps more precisely, the equating of different views on immigration as being Trumpist.

                        Putting people in a box is not so helpful when that box may contain more than half of the population.

                        But I could care less about the Trumpkins themselves. Except that I would prefer they lose more than whatever sense of gratification I might get from equating people who are critical of this policy or that one of practically being a Trumpet. Especially when it comes to views widely held.

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                        • Will,

                          I hear on that. I think it’s important to divorce a policy proposal from the (worst) intentions expressed by a segment of that policy’s advocates. Not completely divorced, mind. Just enough to evaluate the merits of such a proposal. Course, the worst intentions ought not be discounted either and ought to form part of our overall calculus.

                          Seems to me anyway.

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                          • I think it’s important to divorce a policy proposal from the (worst) intentions expressed by a segment of that policy’s advocates.

                            Well, yes, but if we argue the policy ‘We should remove BRC’ on the merits…the merits lose pretty badly. Because the alternative to BRC actually has a really stupid outcome.

                            We’ve never deporting all the people who are here illegally. We simply cannot do it.

                            Thus the *actual* outcome of getting rid of BRC is a lot of people living in this country, and their descendants, forever, without citizenship.

                            I understand *why* this might be a popular goal for certain segments of Republicans, in exactly the same that Voter ID laws that deny voting rights to sections of the population is a popular goal. (In fact, it’s *literally* the same goal.)

                            It’s still an *extremely undemocratic* idea, however. And it’s really really stupid (and immoral, but also stupid) to create a permanent underclass.

                            Now, if we want to stop birth tourism, we could remove the BRC and then make a law making everyone born in the US a citizen until they spend more than 10 years out of the country before age 18. No one would have much of a problem with that…but, then again, it’s almost certainly *not* the reason that people are pushing to remove BRC in the first place.

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                            • We’ve never deporting all the people who are here illegally. We simply cannot do it.

                              Thus the *actual* outcome of getting rid of BRC is a lot of people living in this country, and their descendants, forever, without citizenship.

                              It might be the case that this will be the actual result, but it’s not necessarily a function of not being able to deport them all. If it were necessarily the result of ending BRC, it would be a function of being unable to install a a process for naturalizing those born here that would be completed at a rate of 100%. And “forever” would be a forever of the indeterminate variety… i.e., it may be that some families would have some descendants in every generation that don’t become citizens, but it wouldn’t necessarily be because they couldn’t. It would be because they didn’t complete the process. That would depend on the nature of the new set of policies we chose.

                              Getting rid of BRC does not (necessarily) mean you create a class of people born here who cannot be citizens. It just means that their being born here doesn’t itself confer citizenship (citizenship, not legal status – we could confer legal status on everyone born here that isn;t citizenship). But a legal world in which there is not BRC in the U.S., but citizenship is nevertheless available to people born here pursuant to a process laid out for it, is only a decision to create that legal reality away.

                              But that process would be a bureaucratic hurdle, and, as I said above, the nature of bureaucratic hurdles is that some people eligible to get over them nevertheless don’t. Either the process is under-resourced, or the will is not there on the part of the constituents to complete it, or both. So some people born here in all likelihood would not become citizens.

                              That is the only factor that would cause not having BC to necessarily create a class of people born here who would not (would not, not could not) be citizens. Not the inability to deport them all combined with a situation in which some people born here are never eligible for citizenship, or not until they leave to someplace else and then complete the kind of process we have now. That kind of thing would only exist in a no-BRC U.S. if we specifically elected for it to exist in the course of completing such a change of policy. It’s not a result of ending BRC per se.

                              Ending birthright citizenship means making it so that U.S. birth itself doesn’t confer citizenship. But it could also mean making naturalization and citizenship available to those born here pursuant to a process for it, and offering legal residency status to the native-born that would hold over until that process were completed. That is something that would be entirely possible in a U.S. without birthright citizenship.

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                              • For what it’s work, Mark Krikorian has said that ending birthright citizenship would likely have to coupled with some sort of amnesty.

                                (For those of you who don’t know, Krikorian is huge in anti-immigration circles, and not for being moderate. He’s the head of Center for Immigration Studies, which is one of the two leading consortiums for generally opposing amnesty, getting tough on illegal immigration, and reducing legal immigration. Aside from politicians, he is the leading voice on the subject.)

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                                • Amnesty going forward for future native-born, so basically birthright legal status short,of citizenship?

                                  Or just an amnesty for…. well, they’d be BR citizens at time of enactmeant, as is at pains to point out, so he (Krikorian) is just saying no retroactivity?

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                                  • Amnesty going forward for children born to illegal immigrants who are here right now. And the illegal immigrants here would be able to stay (but would not, I don’t believe, themselved obtain citizenship – probably ever).

                                    From the Washington Post:

                                    Krikorian opposes birthright citizenship, but he argues that ending birthright citizenship would only be possible along with amnesty for those undocumented immigrants already in the country so that their children would be citizens. Otherwise, he said, he would be worried about the unauthorized population—unable to work and without any legal connection to their native country.

                                    “It’s a lot of people,” said Krikorian. “I don’t think it’s a good idea.”

                                    I want to repeat that Krikorian is not a moderate by most definitions of the term. His group is on the border of being a hate group, according to the SPLC. He’s pretty avid about securing the border and stopping the flow. But he’s also realistic about mass-deportation and that some degree of compromise would be necessary.

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                                      • It strikes me as almost impossible to distinguish undocumented immigrants who were here on a date certain from undocumented immigrants who came afterward, at least within a fair number of years of that date. Over time, you can judge age by appearance, but short of that…

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                                        • Also, it seems like this concern remains pretty significant if you don’t offer native-born legal status and a path to citizenship on an ongoing basis, not one time:

                                          Otherwise, he said, he would be worried about the unauthorized population—unable to work and without any legal connection to their native country.

                                          “It’s a lot of people,” said Krikorian. “I don’t think it’s a good idea.”

                                          I realize his vision is of radically more border security. But… I think you’re still talking about a big group of this were only to be a one-time amnesty.

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                                        • There are a couple of possibilities. First is that they register and are given residence status but not citizenship. The second is that they be able to provide some documentation that they were here before such-and-such date. Or some combination of the two.

                                          I don’t think this is new ground as it comes up during regular amnesty discussions. If passed, amnesty would require some sort of demonstration that you were here when the law was passed, or at some point before that, lest there be a last-minute border surge.

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                            • DavidTC,

                              You mentioned that the idea of ending BRC is stupid a couple times and that it’s a bad idea and such, but you never gave a reason why it’s stupid or bad

                              So, why is it stupid and bad?

                              And to be clear, I’m not advocating for ending the policy nor am I (inshallah) supporting Trump’s views. I just don’t see why the proposal is denigrated so easily by folks who haven’t given any reason for why it’s so easily denigrated.

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                              • I thought he did a decent job with it here. The danger is intergenerational apartheid, which would be bad for the country.

                                I think that Michael Drew is right though that he’s only looking at one scenario.

                                In my view, the importance of other countries doing it is not that it means we have to question why we aren’t (American Exceptionalism Ho!) but that we can look at different models, see how they work, and get an idea of how we might do it here if we wanted to.

                                I still think it’s a bad idea, but it’s not clear that it just couldn’t work.

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                                • Will,

                                  Are we talking about DavidTC here?

                                  Apart from merely defining what the policy entails (as if doing so reveals its badness) the only thing he wrote is this: “But it could also mean making naturalization and citizenship available to those born here pursuant to a process for it, and offering legal residency status to the native-born that would hold over until that process were completed. That is something that would be entirely possible in a U.S. without birthright citizenship.”

                                  I’m not at all sure why that’s a decisive criticism of repealing the policy, myself. I mean, I wait 3-4 weeks for my drivers license to arrive in the mail, yeah? So waiting for byuwrockrosee to work thru its wheels isn’t necessarily a bad thing. (Unless you’re Damon. :)

                                  Adding: I should add that having citizenship conferred for everyone via a bureaucratic process is actually my main objection to the proposal. But that certainly isn’t the end of the story, even for me.

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                                  • Alsotoo, the issue of intergenerational apartheid could be resolved by merely fast-tracking citizenship for folks who’ve been here for … whateverfillintheblank.

                                    I don’t see how one relates to the other, actually.

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                                  • It could, but would not necessarily. David assumes a nearly most extreme scenario (thank you Dominican Republic for forcing me to add “nearly”) and that’s a weakness of his argument as Drew pointed out.

                                    But it would leave a lot more to legislative whims than I am comfortable with. (And I oppose it for other reasons but my arguments are somewhere between redundant and tepid to right-wing on this forum. Maybe on Hit Coffee at some point.)

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                                  • he only thing he wrote is this

                                    …I didn’t write those words, Michael Drew did.

                                    Anyway to clarify what I am saying: First, obviously, the US *could* repeal the 14th and then make laws that duplicated it. But the entire premise of repealing it is so that we can have *different* rules about immigration, otherwise there is no point. So obviously ‘replacing the 14th with identical law’ is not what anyone who wants to repeal the 14th wants to do.

                                    And, yes, there is possibly some middle ground of letting basically everyone born in the become US citizens, just without *automatically* making them US citizens.

                                    But there are two problems there: 1) As pointed out, that is a bureaucratic nightmare that appears to accomplish nothing at all, while making things more difficult for every single American. And 2) There is really no evidence that this where the people who want to repeal the 14th want us to end up, considering it does *nothing* about the problems they’re screaming about.

                                    I think some of you are looking at a *hypothetical* ‘Do we need this in the constitution?’ question, whereas I’m saying ‘Let us assume these people wanting to repeal the 14th have their way, and the laws after that reflect *their* position.’

                                    And from what *I* can tell, the premise is, after getting rid of BRC, the next step is *not* to make citizenship available, upon request, to everyone who would have been eligible for BRC. In fact, the next step appears to be the opposite, to make sure that people whose parents are here illegally, or even here on a legal visa, *do not* get citizenship.

                                    And now someone’s about to say okay, *that* generation might not be citizens, but they’d be here legally, so the next one would be citizens, I’d point out there are a lot of assumptions being made about laws that *do not exist*. No one can actually guarantee that’s how it would work, or how it would continue to work. Maybe *none* of them would be considered to be here legally, or maybe children of legal residents wouldn’t be citizens.

                                    Which, as I said, is exactly how you get a permanent underclass.

                                    With the 14th, we get an absolute stopgap to a permanent underclass of non-citizens, which is, indeed, the entire point of it. Without it, the laws are at the whim of the people, and the people who want us to *be* without the 14th have an entire different set of laws in mind. Postulating some sort of hypothetical universe where the 14th can disappear *in a vacuum* is interesting, but not very relevant to the actual political movement to repeal it.

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                                    • …I didn’t write those words, Michael Drew did.

                                      Sorry bout that. Really. That’s inexcusable.

                                      I’ll re-read what was happening upthread as well as the new stuff and get back to ya on the right stuff, one way or the other, this time.

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                                    • Ehh, I think the logic is reversed, actually. The idea is that by removing the “anchor baby” option, folks who don’t belong are expected to (as Mike said in the byline to the post) Get Thee Out.

                                      I mean, what you take as a criticism of the proposal seems to me like its purpose. Now, we can disagree about whether or not that purpose is justified but it hardly seems like a valid criticism to a policy proposal that it’ll do what it’s intended to do.

                                      Course, it’s possible I still don’t understand what you’re saying.

                                      Oh, and regarding the permanent underclass, that seems like something resolvable by a different process than BRC, as I said earlier. Those two things are distinct in my view, especially given that (as we both probably agree) illegals will still cross our borders looking for work irrespective of the BRC issue, and they’ll continue to have bebbies once they get here.

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                                    • You present one possible variation, and a troubling one at that (a near worst case scenario, after DR). I would say that it’s not even the most likely scenario. A middle ground isn’t just possible, but rather likely even in the unlikely event of their success. Krikorian is talking about actual amnesty and citizenship for the children born to those illegal immigrants already here.

                                      There’s actually a lot of room to maneuver, and there are other countries we can look at which actually kept automatic citizenship after a certain period of time after they got rid of birthright citizenship.

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                                    • And thinking about it: If the 14th has enough support to be repealed, well, it’s not actually a matter of new harsh laws, or whatever. We’d end up under *existing* law, and existing law assumes the 14th exists and thus no part of the law explicitly restates it, AFAIK.

                                      Instead, we fall back to a bunch of laws that grant citizenship based on parentage, which are designed to apply to births *outside* the US, but would suddenly apply everywhere.(1)

                                      And, because Congress is completely broken, and even if it slightly fixes itself, any group that can pass a constitutional amendment is, (even if only a majority by gerrymandering), at least large enough to *stop new laws*.

                                      I could be wrong here, though. Perhaps some part of the law does restate the 14th.

                                      1) These laws, incidentally, are often epically stupid, like the law that Obama would have fallen outside (If actually born in Kenya) because his mother had not resided in the US for five years after the age of 16…because she was fricking 18. They’ve fixed that particular problem, but, seriously, the ‘born outside the US’ citizenship laws are a crap sandwich, and no one seems inclined to fix them because they don’t actually matter…people who fall through the cracks and want citizenship often can get citizenship anyway. But put the *entire population* under those laws…wow.

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                        • Its been my experience that most people don’t really follow politics closely like we here do.

                          Which is why most people have political ideas that are a confused jumble of disparate positions- they want a balanced budget and a strong defense for example.

                          The half that wants to end birthright citizenship aren’t hard core nativists who hold an unshakeable position, in other words- they are the soft outer core whose position can harden or peel away, depending on which way the mob turns.

                          When everything they hear from people like you and me is that this is a serious reasonable position, but which ultimately is unwise because argle bargle, we have already lost the war.

                          I admire conservatives in their willingness to stake out hard moral grounds, with sharp contrast. We should be willing to do the same.

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                          • The half that wants to end birthright citizenship aren’t hard core nativists who hold an unshakeable position, in other words- they are the soft outer core whose position can harden or peel away, depending on which way the mob turns.

                            When everything they hear from people like you and me is that this is a serious reasonable position, but which ultimately is unwise because argle bargle, we have already lost the war.

                            The problem is when we equate birthright citizenship opposition (or skepticism) with being a hard core nativist. We’re essentially taking them and saying, with shrieks of horror “If you believe that, you belong in that box over there with them!”

                            The worst case, and more likely than the preferable one, is that they might believe you.

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                            • Yes, exactly.

                              I’m refusing to accept the existence of an honest and good faith opposition to birthright citizenship.

                              There is a good faith argument for controlled immigration, for finding methods of dealing with the wealth imbalance between Mexico and the US.

                              This isn’t it. Not even close.

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                              • I’m refusing to accept the existence of an honest and good faith opposition to birthright citizenship.

                                How bout the bare fact that it’s arbitrary. Eg., why should merely being born here accord citizenship? I mean, it’s clearly our custom and convention, but what’s the argument in favor of that policy?

                                Am I being dishonest by asking that question?

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                                • Right. As others have said, the U.S. unusual in this regard. In some ways, I think that makes birthright citizenship the position in need of defense, putting aside Constitutional issues. Though of course, the fact that such an amendment was necessary might suggest an argument in favor of birthright citizenship.

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                                • Ask yourself that question.

                                  Are you being honest? What is your opposition to birthright citizenship? What do you envision as the outcome of this debate?

                                  Is it something personal to you, a matter of justice? Or is it the sort of abstract philosophical question that people engage in, who have no stake in the matter?

                                  The only real reason America is discussing this right now is because Donald Trump said that Mexican immigrants are coming here and raping white women.
                                  The Minutement patrolling the border, radio DJs advocating enslaving immigrants, people bitching about “losing their country”, Michelle Malkin pining for internment camps…
                                  This is the context in which you want to have a civil and polite discussion about revoking the citizenship of millions of Americans.

                                  No, this isn’t an honest discussion, unless you acknowledge that very real fear and loathing that animates it.

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                                  • Ask yourself that question. Are you being honest?

                                    Yes.

                                    What is your opposition to birthright citizenship?

                                    I don’t have any.

                                    What do you envision as the outcome of this debate?

                                    Don’t know. That’s why it’s important to engage the debate.

                                    Is it something personal to you, a matter of justice?

                                    A matter of justification!

                                    Or is it the sort of abstract philosophical question that people engage in, who have no stake in the matter?

                                    No.

                                    See? Easy peazy.

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  13. Here’s a fun question I’ve seen no one address:

    Lot of people seem to think that repealing the 14th would only apply to the future. I’m not quite sure why that would be. The 14th states that certain people ‘are’ citizens of the US…why would they continue to be citizens without that?

    Let’s check how it worked for the repeal of the only amendment repealed, looking at the only relevant parts:

    18th: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

    21st: The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

    The 18th said it *is* prohibited, and the 21st said that amendment is repealed…and from there we concluded that the prohibited status is gone.

    Let’s check the relevant part of the 14th: 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.

    They *are* citizens. Just like the 18 ascribed a status to alcohol, the 14th ascribed a status to people. The 18th said ‘This *is* true.’, and the repeal *undid* that status.

    So if repealing the 18th made that status of alcohol disappear, then repealing the 14th…. ?

    Note I’m not saying this would happen retroactively. Those people *would have been* citizens, just like that alcohol *was* prohibited. It’s just, after the repeal, that’s no longer true. (‘But you can’t remove citizenship without due process or overt action’, says the imaginary rebuttal in my head, to which I reply, ‘Those are laws and/or constitutional protections, and thus an amendment to the constitution trumps them’.)

    Now, obviously, this would be completely insane to actually happen. It would, of course, be possible for the repeal to grandfather in all existing citizens or something, or mere laws to do so.

    I just don’t see anyone mentioning this.

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    • The amendment in question would not likely repeal the 14th, but revise it to allow Congress to pass and the president to sign in to law a restriction of citizenship to children born of citizen parents. It can further state that until such a time as the law is passed, existing law and interpretation of the law remains in effect.

      We can assume a poorly drafted amendment if we wish, but these are things that can be addressed.

      Actually repealing the 14th en toto is even more a nonstarter than ending birthright citizenship, and I’m not sure anyone of note has explicitly advocated a full repeal (as opposed to ending birthright citizenship, which has been characterized by others as such, but which would only constitute a revision of part of the 14th).

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      • The 14th wouldn’t be repealed, just clarified:

        * It does grant corporate persons all the rights of flesh-and-blood persons.
        * it does not grant BRC, SSM rights, interracial marriage rights, integrated schools, one-man one-vote, the right to purchase birth control, or any similar perversions created by judicial activists

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      • We can assume a poorly drafted amendment if we wish, but these are things that can be addressed.

        My point was not actually that this would happen, it’s that everyone seems to say ‘Of course, everyone who was a citizen under birthright would remain one’, instead of saying ‘Of course we’d make the *new* amendment continue existing citizenship of people previously granted it.’

        Everyone just seems to have this weird idea that citizenship already granted can’t be removed, or at least can’t be removed without specific laws…which is a reasonable assumption most of the time, but not when we’re talking about a constitutional amendment, which certainly *can* do that, and I think actually *would* do that (Based on the example of the 21st and how that worked) unless we specifically stop it.

        And here’s a question: Has anyone actually *created* such an amendment? Is there one actually floating around out there?

        Actually repealing the 14th en toto is even more a nonstarter than ending birthright citizenship, and I’m not sure anyone of note has explicitly advocated a full repeal

        There are only two sentences in the 14th amendment that do anything currently, plus an enabling one. The *other* sentence is the one that resulted in the incorporation doctrine, which is the one that requires state governments to not violate the civil rights of their citizens. Along with making states have due process and equal protection. (Although technically that part is a bit redundant, I think, if incorporation means states already have to not violate the 5th.)

        …and, honestly, I wonder how many people who want to get rid of BRC are ‘states right’ asshats who would see getting rid of *that* as a useful side effect.

        But yes. While repealing BRC has almost no chance of happening, repealing the *other* part of the 14th is not something that could actually happen. All you’d have to do is point out that state or local governments could then outlaw various speech or religions, or force their own religion on people.

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        • Automatic citizenship stripping could be done via an amendment, but the amendment would have to be very explicit about that, because even many conservative judges would be very disinclined to allow it to happen otherwise. It would have to be a case where they would have no choice. I don’t think there are two justices on the Supreme Court that would assume Congress that ability, and there aren’t more than three.

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        • I’m sort of with here.

          Not that it would be the likely outcome by any stretch. But I’m not so sure it’s not possible that if we started monkeying around with BRC, given the forces that would in all likelihood drive that effort (which is a point he’s right to make so long as my point about what ending BRC necessarily doesn’t mean is accepted), that we couldn’t slide with shocking ease into a legal world where people were under real threat of being de-citizenized. Especially if this were accomplished by a judicial reinterpretation of the 14th Amendment on the issue of BRC.

          Again, very likely Congress then passes laws clarifying that once a citizen always a citizen. But I don’t personally know what the legal prophylactic against that is short of Congress displaying that wisdom.

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            • I think if such a decision were to come down, it would be at the behest of forces that would have a particular immigration agenda. I think Will’s right that that agenda would likely include affirming that people who had been citizens under the law at the time of there birth always would be. But I am not as sure that that policy would be enacted as he or CK are, I agree with you there. The difference to Shelby County is that that case accomplished essentially what the movement behind was seeking to accomplish. Changes to law in reaction to it are at the behest of those opposed to it. Here, such a decision would not accomplish what the movement behind the decision are looking to accomplish. More law would be needed for that.

              That’s the problem with judicial decisions – they are so unbound when you start to work with really strained interpretations of law. For example, are they bound by ex-post-facto? Unless I am mistaken, I think they can change (interpret) what the law was at previous times, unlike legislatures, which are bound by ex-post-facto. So conceivably SCOTUS could say that the 14th Amendment never itself bestowed citizenship on certain classes of people, and then what is their status? (Maybe there is currently a statute that affirms it? Thinking about this, actually that might not be a bad thing to have.)

              I also think it’s highly unlikely, within the almost vanishingly unlikely scenario any decision like this would ever come down, that the decision itself wouldn’t explicitly say that it applied going forward. But I am also not sure that it would have to… that if it were to say that there are broader exceptions than we currently understand to the constitution’s guarantee that everyone born here, that that couldn’t throw into question existing citizens’ citizenship pending clarification by Congress.

              I wonder if the legal eagles know of a principle that would limit their ability to only making such a finding operative going forward.

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              • So conceivably SCOTUS could say that the 14th Amendment never itself bestowed citizenship on certain classes of people, and then what is their status?

                Okay, so let’s visit the hypothetical world where the courts decide that, for example, ‘jurisdiction’ means ‘people who are here legally’. (Which is an absurd interpretation of the law, but that is not the point here. Absurd interpretations of the law can happen.)

                And if they did that, I’m pretty sure it would be retroactive. In fact, that’s pretty much the only way a court case could even show up…the US government decides that a person seemingly covered under BRC isn’t, and they sue in response.

                But I am also not sure that it would have to… that if it were to say that there are broader exceptions than we currently understand to the constitution’s guarantee that everyone born here, that that couldn’t throw into question existing citizens’ citizenship pending clarification by Congress.

                Actually, pretty much any decisions like that would throw *everything* into chaos, because the US government doesn’t bother keeping records of whose parents are citizens for 99.999% of Americans. They know *I’m* a citizen because I have, several times, provided them with a birth certificate showing I was born in the US. That’s all they’ve got from me. Remove *that* as a qualification from citizenship and now I’m only a citizen if my parents were.

                They also, in theory, have my parent’s birth certificate (Assuming they have some way to match up the names on my birth cert *to* my actual parents instead of any random people with those names.), but that just regresses the problem back one generation…and we very quickly run into dead people, and/or people without birth certificates.

                And heaven forbid if there are any immigrants in there…now there are some extremely stupid rules about marital status and residency in America and all sorts of nonsense. Seriously, these rules are extremely stupid (Again, I point to a Kenyan-Obama hypothetically falling outside them because his mother had not resided in the US for ‘long enough’, despite living here her entire life.), and like to randomly change, so good luck even *figuring out* what rules apply to what generation.

                There is, perhaps, a possible out here, a literal grandfather clause…assuming this is based on *legality*, it is possible to come to the conclusion that, while someone whose parents are here illegally aren’t a citizen, they *themselves* are here legally. So their *kids* are citizens.

                I.e, it’s possible to imagine a world where BRC operates over two generations, if it’s denied to people here ‘illegally’, because the *children* of people here illegally are not committing a crime *even if* they aren’t citizens. ‘Being in the country without the government authorizing your existence’ is not a crime, it’s illegally *entering* the country that is a crime.

                So people would only have to prove their grandparents resided in the US when their parents were born, thus making their parents here legally, thus making themselves citizens.

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              • You’re not, by far, the worst offender, , but I do wish that people would refrain from assigning to me opinions that I’ve never offered, and that in fact have clearly and repeatedly disclaimed – not because I very much care, personally, what others think I think, but because it contributes to confusion.

                So, I don’t in fact think that a policy revising jus soli in the U.S. and comprehensively replacing it with jus sanguinis, or with no jus at all, “would” be enacted in any form or by any means discussed on this thread. I also never, as per , “trusted” the Erler article to “form my opinions,” nor did I recommend others do so. At the time I linked it, and repeatedly thereafter, I disclaimed any judgment or recommendation on the merits of Erler’s presentation, other than to say it presented an “on first glance” rational argument. I do think further research, including the thoughtful counterargument by Epps – against more sophisticated presentations than Erler’s – actually verified that there was something of interest in the argument on its own own terms, but, instead of examining it, we quite typically got sidetracked on the question of whether any argument at all against a left-liberal “plain reading” of the 14th Amendment was even permissible.

                …which is partly why I believe our system and political culture are likely incapable under current circumstances and conditions (multiply cross-polarized vetocracy dominated by a pseudo-intelligentsia more interested in pre-empting than in conducting non-prejudicial discussion) of responding sensibly either on the matter of birthright citizenship or on the larger question of immigration reform or on almost anything else not already part of accepted practice and still stable institutional control.

                So, I think it’s mostly pointless to speculate about how a revision would be enacted into law, though I think it may be worth observing that a vast range of full and partial revisions, and trade-offs, and trades up to and including one or another grand bargain could in theory be worked out. Such reasonable solutions built on thoughtful and creative compromise seem to be mostly beyond us, however. Specifically on putting already established citizenships in peril, I remain of the view that this is an utter red herring, not just for the above reason – that nothing is likely to happen – but because no one is proposing or has proposed it or anything like it. Any hint of the possibility would reduce the already minimal chances of legislation being passed to less than zero.

                My position all along has been that the problem throughout the West has more to do with undermining confidence in liberal democratic systems, deepening divisions between right and left, elite and masses, native and non-native, this-ethnic and that-ethnic, and so on. Perhaps at some point, if and when a crisis develops, maybe involving some ally of the U.S. still capable of formulating and enacting policy efficiently, a push to change things in the U.S. may lead somewhere new. I don’t pretend to know. Maybe a Rubio or Jeb Administration wouldn’t break its teeth on immigration like the W Administration did, or Hillary! would have more luck than O!, but I don’t see reasons to expect them to to achieve an authentic fix. I think they’ll talk and, in extremis, produce a bill or two that won’t effectively address perceived problems – but, if I’m wrong, stranger things have happened…

                As for the questions around the 14th Amendment, I think even the Erler piece, and even the much more serious and thoughtful Epps article linked by nevermoor, undermine the constitutional argument that proponents of BRC/jus soli want to treat as “sacred,” and further hope to place not just morally but legally and logically beyond discussion. Epps clearly believes he is doing something else, but is more persuasive, in my view, on the matter of original intent than on its adequacy to the present day – an unusual position for a left-liberal to end up in.

                I might have more to say some other time on the notion that committed partisans seem to find so bizarre: that there is something to be gained from strengthening an opposing argument, which will often survive any particular articulation, rather than from seizing upon and exaggerating defects (and setting aside whatever strengths). That this something may be more valuable than the opportunity to count coup against a writer from the other side is clear to me. It’s not much different from the rationale guiding the state when it, ideally, seeks a just verdict in a trial (or to avoid an unjust one) rather than merely a “successful prosecution.”

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    • Citizenship is a legal privilege. Whether or not a person has some natural right to that legal privilege becomes irrelevant once they have it. At that point you can’t take it away without cause.

      It’s why California gay couples who were married in the first window it became legal got to stay married even though gay marriage became against the law.

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      • At that point you can’t take it away without cause.

        *points to his imaginary rebuttal*

        Prop 8 was a state law that violated a US constitutional amendment, specifically, the 5th. It can’t do that.

        Repealing the 14th amendment would be via *another* constitutional amendment, and hence it can violate the 5th amendment all it wants.

        In fact, ironically, we’ve had a extremely 5th-amendment-violating amendment before, from that time….the 13th. Freeing slaves clearly ‘violates’ the ‘nor shall private property be taken for public use, without just compensation’ clause of the 5th amendment, by taking a huge amount of private property and declaring it no longer private property, but actual people. Except it didn’t violate that, because it was a constitutional amendment also.

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        • Fair point.

          I suspect, however, that if you wanted to do that you’d have to be very clear about it (like the 13th was). I doubt “birthright citizenship is abolished” (or, even simpler, “delete the key words from the 14th amendment”) would rise to the level of inferring a desire to impinge upon the 5th amendment.

          And I don’t think anyone (or, at least, any national-level politician) is saying they want an amendment that has any such explicit language.

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