I would agree... the law seems reasonably clear, and the Court in Wong Kim Ark agreed...
The Amendment states: "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."
That said, I will predict right now how they will flip it...
I would agree... the law seems reasonably clear, and the Court in Wong Kim Ark agreed...
The Amendment states: "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."
That said, I will predict right now how they will flip it...
"and subject to the jurisdiction thereof"
That is what they will hang their hat on.
You need to read the EO closely. It's designed to truly challenge what constitutes being "subject to the jurisdiction" of the United States.
If you're an illegal alien, and you've entered the United States unlawfully, Wong Kim Ark says you are indeed "subject to the jurisdiction thereof," of the United States since you are subject to the laws thereof...
That part may be tougher for the Court to flip (I'll come back to it tho... )
Suppose you're one of these mothers who comes to the US to have a child because you want dual national citizenship (which is the other part of the EO). In that case, I think it's pretty clear you have no real desire to be subject to the political jurisdiction of the US and you are "just passing through." We do not, for example, consider individuals who are born to US parents abroad suddenly the citizens of those countries and thus deny them US citizenship if they were on vacation, or stationed at a US military garrison, etc., because that was a transient condition.
Going back to the illegal alien idea ... again, my basic idea is I think Wong Kim Ark was properly decided...
But then again, I think Roe was properly decided (although Blackmun wrote a horrendously poorly worded decision.)
For you, you're saying "I think the 14th Amendment was plainly written."
Ok... says you. Now I agree with that idea...
Do five justices?
I could easily see an argument that goes the "subject to the jurisdiction thereof," becomes an "operative clause," and that the "all persons born..." is the prefatory clause... and that to be truly a US citizen under jus soli, both the operative and the prefatory clauses must be true.
Moreover, I could also see this Court making the argument that the point of the 14th Amendment was to ensure that the people who were formerly slaves were granted the right of Citizenship since their lineage could not be determined, but where they were born (in most cases) certainly could be, and they most certainly were "subject to the jurisdiction thereof," of the United States in 1865.
And I could also see them distinguish that fact from an illegal alien who enters the US illegally, who doesn't seek asylum, and who lives unlawfully in the US, hiding from the government, and then gives birth to a child.
What they may focus on is how the Court in Wong Kim Ark focused on how the Court relied on the common-law principle of jus soli, a doctrine established in English law, which holds that citizenship is determined by the place of birth, not the nationality of one's parents. The Court extensively analyzed English common law and early U.S. legal traditions, emphasizing that for centuries, anyone born within English territory (with limited exceptions, like children of foreign diplomats or enemy forces) was considered a subject.
This Court could conclude that "subject to the Jurisdiction thereof," does not me co-terminous with the land... but instead co-terminous with recognition of the political authority.
Now... I want to be clear... I think those arguments are all NONSENSE ...
The Court in 1898 rejected this view, interpreting "subject to the jurisdiction" to mean being subject to U.S. laws and authority, which Wong Kim Ark was, as he was born on U.S. soil and not exempted under the narrow exceptions (e.g., children of diplomats). Further, the Court held that the Chinese Exclusion Acts did not strip Wong Kim Ark of his constitutional right to citizenship under the 14th Amendment.
All of that said...
Roe looked pretty damn solid too...
And Alito found a cookbook from 329 BC written by a witch... and went "Looks good to me!" and the next thing you know... Dobbs popped out.
Give that stare decisis doesn't seem to be a doctrine this Court cares about in the slightest... we really have no clue what could happen.
After Trump v. US... after Dobbs... I could see this court... 6-3 conclude... that "subject to the jurisdiction" means complete political allegiance to the U.S... This would exclude children of foreign nationals, such as temporary visitors, undocumented immigrants, or those who maintain allegiance to another sovereign nation. Only children of U.S. citizens or lawful permanent residents born on U.S. soil would automatically qualify for citizenship. Those born to foreign nationals, regardless of birthplace, would not.
It wouldn't end "birthright citizenship" per se... but it would dramatically change how the 14th Amendment is applied when either parent is not a natural born or naturalized US citizen.
And I cannot imagine they'd "skin the banana" on this if they didn't think they had a great chance of winning this argument...
Wow!! Nice analysis. So basically it’s way too involved especially with this supreme Ct than what my one sentence covers. Agreed. Makes me want to put down the wine and read the cases.
In general… your best bet is to always read the actual orders, opinions, etc. Very few people in the media know enough law and history to report things properly.
I can because I’m one of those people… although I don’t do it anymore. I always go for the primary document. I always want to read the actual opinion, the ruling, the EO, etc. There are always nuances that get missed by the media… but it’s in those nuances that the law lives.
This whole thing is going to come down to those magic words “subject to the jurisdiction thereof,” on a case from 1898. And prior to me (and a few others that spotted what he was up to Monday night as soon as we could read the actual EO) all everyone heard was he was trying to end the 14th Amendment. No, he’s trying to redefine US citizenship by having the Supreme Court do his dirty work and disenfranchise millions of Americans and their progeny in the process. That point has yet to be covered in the press.
If the Court does what I predict… millions of Americans will effectively lose their natural born status as American citizens. Because the law doesn’t operate in a vacuum and it doesn’t operate only for the exception.
I would agree... the law seems reasonably clear, and the Court in Wong Kim Ark agreed...
The Amendment states: "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."
That said, I will predict right now how they will flip it...
"and subject to the jurisdiction thereof"
That is what they will hang their hat on.
You need to read the EO closely. It's designed to truly challenge what constitutes being "subject to the jurisdiction" of the United States.
If you're an illegal alien, and you've entered the United States unlawfully, Wong Kim Ark says you are indeed "subject to the jurisdiction thereof," of the United States since you are subject to the laws thereof...
That part may be tougher for the Court to flip (I'll come back to it tho... )
Suppose you're one of these mothers who comes to the US to have a child because you want dual national citizenship (which is the other part of the EO). In that case, I think it's pretty clear you have no real desire to be subject to the political jurisdiction of the US and you are "just passing through." We do not, for example, consider individuals who are born to US parents abroad suddenly the citizens of those countries and thus deny them US citizenship if they were on vacation, or stationed at a US military garrison, etc., because that was a transient condition.
Going back to the illegal alien idea ... again, my basic idea is I think Wong Kim Ark was properly decided...
But then again, I think Roe was properly decided (although Blackmun wrote a horrendously poorly worded decision.)
For you, you're saying "I think the 14th Amendment was plainly written."
Ok... says you. Now I agree with that idea...
Do five justices?
I could easily see an argument that goes the "subject to the jurisdiction thereof," becomes an "operative clause," and that the "all persons born..." is the prefatory clause... and that to be truly a US citizen under jus soli, both the operative and the prefatory clauses must be true.
Moreover, I could also see this Court making the argument that the point of the 14th Amendment was to ensure that the people who were formerly slaves were granted the right of Citizenship since their lineage could not be determined, but where they were born (in most cases) certainly could be, and they most certainly were "subject to the jurisdiction thereof," of the United States in 1865.
And I could also see them distinguish that fact from an illegal alien who enters the US illegally, who doesn't seek asylum, and who lives unlawfully in the US, hiding from the government, and then gives birth to a child.
What they may focus on is how the Court in Wong Kim Ark focused on how the Court relied on the common-law principle of jus soli, a doctrine established in English law, which holds that citizenship is determined by the place of birth, not the nationality of one's parents. The Court extensively analyzed English common law and early U.S. legal traditions, emphasizing that for centuries, anyone born within English territory (with limited exceptions, like children of foreign diplomats or enemy forces) was considered a subject.
This Court could conclude that "subject to the Jurisdiction thereof," does not me co-terminous with the land... but instead co-terminous with recognition of the political authority.
Now... I want to be clear... I think those arguments are all NONSENSE ...
The Court in 1898 rejected this view, interpreting "subject to the jurisdiction" to mean being subject to U.S. laws and authority, which Wong Kim Ark was, as he was born on U.S. soil and not exempted under the narrow exceptions (e.g., children of diplomats). Further, the Court held that the Chinese Exclusion Acts did not strip Wong Kim Ark of his constitutional right to citizenship under the 14th Amendment.
All of that said...
Roe looked pretty damn solid too...
And Alito found a cookbook from 329 BC written by a witch... and went "Looks good to me!" and the next thing you know... Dobbs popped out.
Give that stare decisis doesn't seem to be a doctrine this Court cares about in the slightest... we really have no clue what could happen.
After Trump v. US... after Dobbs... I could see this court... 6-3 conclude... that "subject to the jurisdiction" means complete political allegiance to the U.S... This would exclude children of foreign nationals, such as temporary visitors, undocumented immigrants, or those who maintain allegiance to another sovereign nation. Only children of U.S. citizens or lawful permanent residents born on U.S. soil would automatically qualify for citizenship. Those born to foreign nationals, regardless of birthplace, would not.
It wouldn't end "birthright citizenship" per se... but it would dramatically change how the 14th Amendment is applied when either parent is not a natural born or naturalized US citizen.
And I cannot imagine they'd "skin the banana" on this if they didn't think they had a great chance of winning this argument...
Wow!! Nice analysis. So basically it’s way too involved especially with this supreme Ct than what my one sentence covers. Agreed. Makes me want to put down the wine and read the cases.
In general… your best bet is to always read the actual orders, opinions, etc. Very few people in the media know enough law and history to report things properly.
I can because I’m one of those people… although I don’t do it anymore. I always go for the primary document. I always want to read the actual opinion, the ruling, the EO, etc. There are always nuances that get missed by the media… but it’s in those nuances that the law lives.
This whole thing is going to come down to those magic words “subject to the jurisdiction thereof,” on a case from 1898. And prior to me (and a few others that spotted what he was up to Monday night as soon as we could read the actual EO) all everyone heard was he was trying to end the 14th Amendment. No, he’s trying to redefine US citizenship by having the Supreme Court do his dirty work and disenfranchise millions of Americans and their progeny in the process. That point has yet to be covered in the press.
If the Court does what I predict… millions of Americans will effectively lose their natural born status as American citizens. Because the law doesn’t operate in a vacuum and it doesn’t operate only for the exception.