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Malinda Seymore @adoptiontalk
, 18 tweets, 5 min read Read on Twitter
1.This thread is to help law students analyze some of the questions arising from the #BirthrightCitizenship debate. I'm trying to help you answer questions your non-lawyer friends might have and to take it beyond political partisanship into legal method. That's your value-added.
2. Here's what the 14th Amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The issue in this current debate is the meaning of "subject to the jurisdiction" of the U.S.
3. How to decide what the Constitution means? Four basic (over-simplified!) methods: a. Textualism; b. Originalism; c. Precedence; d. Policy Preference. More on each in the following tweets.
4. Textualism: What is the plain meaning of the phrase "subject to the jurisdiction?" Black's Law Dictionary: Jurisdiction is “[a] government’s general power to exercise authority.” Like a court's power to compel attendance and obedience to its orders. Under this definition,
5. undocumented immigrants are obviously subject to jurisdiction under a textualist reading -- they can be sued, they can be criminally prosecuted. @PaulGowder explains this well here:…
6. Originalism: What was the meaning of the phrase "subject to the jurisdiction" of the U.S. at the time the 14th Amendment was adopted? It's really clear in the historical record. I've written about birthright citizenship in another context:…
7. Birthright citizenship came to the U.S. via English common law (as did everything else!), and meant all those born within the sovereign territory, EXCEPT those not subject to the jurisdiction of the country. Who was not "subject to the jurisdiction?" Only two categories:
8. Children of ambassadors with diplomatic immunity and children of occupying armies! Their parents could not be sued or prosecuted for crime because they were not subject to a duty of obedience to the sovereign. That's it!
9. When Senator Howard proposed the citizenship clause of the 14th Am. he was just codifying the long-standing law of the U.S., birthright citizenship. And the only exclusion he mentions is the foreign diplomat exception. The amendment "will include every other class of person."
10. Now-Judge James Ho of the 5th Circuit (appointed by Trump) explains the originalist understanding of the clause better than I can: Defining “American:”
Birthright Citizenship and the Original Understanding of the 14th Amendment…
11. Third method of interpretation: Precedence -- what has the Supreme Court said "subject to the jurisdiction" means? Read U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).… Or any of the 1,500-some cases that have cited it without questioning it.
12. In Wong Kim Ark, the Court accepted the originalist definition of "subject to the jurisdiction," excepting out only the children of foreign ambassadors, foreign conquerors, and "Indians not taxed" since they were members of sovereign tribes.
13. Some argue Wong Kim Ark can't answer the question since his parents were legally in the U.S. Were they? The Court never actually says that. They were "resident aliens," but they were also ineligible for citizenship because of racist policies that excluded the Chinese. But
14. the Court's silence as to their status, and its focus on narrow exceptions that thereby included everyone else, makes it a hard argument to make that "subject to the jurisdiction" excludes undocumented immigrants. The Court's analysis INCLUDED everyone not EXCLUDED.
15. That takes us to Policy Preference as a method of defining the Constitution. What SHOULD the phrase "subject to the jurisdiction" mean, unmoored from plain meaning, original intent or precedence? That's the political argument. But keep a few things in mind as you answer:
16. Should we really redefine words and phrases in the Constitution via executive order or statute? What about redefining "arms" in the Second Amendment to mean "only knives" by passing a statute or executive order? Are you OK with that?
17. Things changed via executive order can be changed again by the next President. Statutes can be changed at the will of Congress. Imagine the chaos if citizenship, of all things, changed at the whim of who is next in power and then changed again with a change in leadership.
18. How easy should we make it to strip citizenship from disfavored groups at the whim of the majority? There's a reason it's hard to change the Constitution. /END.
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