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philbo wrote: ↑Fri Nov 02, 2018 4:57 pm

TXHawk wrote: ↑Fri Nov 02, 2018 1:17 pm Again, your ad homenim is unnecessary. Frankly it weakens your argument because it clearly points out a means to an end bias rather than an objective look at the issue from an honest position of scholarship. However, I will address the case you cited. I was actually waiting for it as it is the case most cited by those arguing the 14th addresses this issue although they as you have connect it erroneously. In short the Sing case addressed his citizenship as he was born from parents who were LEGALLY residing here even though they themselves were not eligible for citizenship. It really should not need to be pointed out there is a vast difference between legal residency and illegal residency. So in his case the 14th amendment correctly addressed his citizenship eligibility.

If you have taken that the position that the Look Tin Sing case was the best case on point, then you have mistaken the point of the entire post. Look Tin Sing was one of a series of appellate cases dealing with the birthright citizenship issue. Followed by Ex parte Chin King , Ex parte Chan San Hee and Gee Fook Sing v. U.S. The case directly on point to the issue is the one SCOTUS heard interpreting the citizenship provision of the 14th Amendment. The one case you failed to address in either your original post or rebuttal is United States v. Wong Kim Ark . It was this case which directly dealt with the interpretation of subject to the jurisdiction thereof in both the 14th Amendment and the earlier Civil Rights Act of 1866.Your failure to reposnd to this case and it's holding which is directly on point. This case cannot be ignored, unless of course one is remaining willfully obtuse to the entirety of the available scholarship. One of the passages most directly on point follows:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42. United States v. Wong Kim Ark 169 U.S. 649, 682. (and if you've read much law, you'll recognize the legal cite provided.)
https://www.law.cornell.edu/supremecourt/text/169/649

TXHawk wrote: ↑Fri Nov 02, 2018 1:17 pmYou are correct in pointing out the Elk case dealt with a Native American. The connection you failed to make was while the SCOTUS ruling in that case rules on the exclusivity of Natives, meaning they were already here prior to the rule of law currently followed, it and that is a vastly different scenario that currently being discussed but none the less still set precedent.

Wong Kim Ark directly referenced not just Elk, but all of the slaughterhouse cases in reaching it's conclusion. An educated legal analysis needs to refer to this case or an argument on this issue is in vain by you or any other talking head on Fox news.

TXHawk wrote: ↑Fri Nov 02, 2018 1:17 pmAlthough you did address in mostly correct fashion the background of racism surrounding these cases you completely either failed or chose to ignore what the author of the 14th amendment very specifically stated as of the intent, inclusions, and exclusions. That cannot be ignored unless of course one is remaining willfully obtuse to the entirety of the available scholarship.

As stated previously the phrase inserted by Mr. Howrd is where the debate should be centered. To conclude without supporting argument that only one interpretation of that phrase must now be considered, in the face of previous SCOTUS decisions which were directly on point and ignored in your response, offers nothing to your argument. To take them out of the context of the congressional debates is definitely not helpful to your argument. A careful reading of the original debates will reveal a pattern from Howard, as well from Senator Trumball who worked on the 14th, and drafted the preceding Civil Rights Act of 1866 from which Howrd paraphrased the indicated passage in the 14th amendment. In each case these men repeatedly talked about all immigrants, not just some, having citizenship at birth despite the standing of their parents. If you can come to a different conclusion from the original transcript provided below, I'll be interested in reading it.
https://memory.loc.gov/cgi-bin/ampage?c ... recNum=603
https://memory.loc.gov/cgi-bin/ampage?c ... &recNum=11
https://memory.loc.gov/cgi-bin/ampage?c ... recNum=605

The biggest issue with your response is the total lack of reference to the underlying issue, which is whether previous holdings of SCOTUS, laws passed by Congress, and the 14th Amendment can be overturned by a presidential directive. Congress may be able to pass legislation for SCOTUS to subsequently review, but not likely any other way. A failure to address the underlying issue is not the sign of a serious scholar.

philbo wrote: ↑Wed Oct 31, 2018 9:33 pm

TXHawk wrote: ↑Wed Oct 31, 2018 12:00 amI am not sure how name calling of The President bolsters your case but civil discourse is an altogether different topic. So to the topic at hand. The 14th Amendment does not establish in Constitutional verbiage birthright citizenship nor was it intended to. The only Supreme Court Ruling on the matter I am aware of is Elk vs Wilkins circa 1884 which clearly affirmed the status of the parents did in fact determine the citizenship or eligibility of the child.

Elk v. Wilkens is not the only case dealing with this issue, nor is your case as on point as your conclusion states.

The Elk case dealt specifically with native americans present within the US borders in the 19th century. Elk brought suit stating that he should be granted the privilege of citizenship based on the 14th amendment and his being born within the US. The holding in this case did not rest on who Elks parents were, but rather the fact that he had been born into a tribe that was recognized as an alien nation by the US. Congress that previously concluded that the "Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states"; but "they were alien nations, distinct political communities", with whom the United States dealt with through treaties and acts of Congress. Elk v. Wilkins, 112 U.S. 94 Thus, the members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. The ruling in Elk supported the previous Civil Rights Act of 1866 which specifically stated "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Again, the ruling in Elk relied on the earlier Civil Rights Act to uphold it finding, not the status of Elks parents. Elk remained law in it's application to Native Americans until it was overturned by the Indian Citizenship Act of 1924.

TXHawk wrote: ↑Wed Oct 31, 2018 12:00 amKeeping in mind when the 14th amendment was passed there was no such thing as an illegal immigrant established by legal language in the Federal Statutes.

I agree that it did not exist as a legal term in the 19th century, but all the hall marks of racism, prejudice, nationalism and xenophobia directed against present day illegal immigrants were being levied against the immigrants of their times and justified to deny them the right to vote. Political Parties thrived on fear of immigrants, especially those from Ireland and China. This is best reserved for a separate discussion, but fear and paranoia of immigrants did play a part in 19th century law, as much as it does today.

The cases directly related to the concept of jus soli grew out a series of appellate cases that was eventually decided by SCOTUS in United States v. Wong Kim Ark in 1889. These cases directly commented on the status of parents as related to birthright citizenship, not Elk. as you previously concluded.

The anti-immigrant attitude towards Chinese immigrants in the 19th and 20th century can not be understated. This hostility towards immigrants of Asian descent was codified in the Chinese Exclusion Act of 1882 which severely restricted the rights of Chinese immigrants to enter the country, and made Chinese immigrants permanent aliens by excluding them from obtaining US citizenship.

The question of whether the Citizenship Clause of the 14th Amendment applied to persons born in the United States to Chinese immigrants first came before the courts in an 1884 case, In re Look Tin Sing. Mr. Sing was born in California in 1870 to Chinese immigrants who were not US citizens. As an adult Look Tin Sing was barred from rentry to the US in California because he did not have the documentation required for immigrants. Look's case was taken to the appeals court in 1884. After inviting comment from all lawyers, the judges focused on the meaning of the subject to the jurisdiction thereof phrase of the Citizenship Clause, and subsequently held that Look was indeed subject to U.S. jurisdiction at the time of his birth despite the alien status of his parents, and on this basis ordered U.S. officials to recognize Look as a citizen and allow him to enter the United States. This case was not appealed. A similar conclusion was reached by the federal circuit court for Oregon in the 1888 cases of Ex parte Chin King and Ex parte Chan San Hee. In an 1892 case, Gee Fook Sing v. U.S., the federal appeals court in California (relying on the above cases) concluded that a Chinese man would have been recognized as a United States citizen if he could have presented satisfactory evidence that he had in fact been born in the U.S. None of these cases were appealed to SCOTUS, but each directly dealt with Birthright Citizenship under the 14th amendment.

The case that is directly on point, and of which you presume to be ignorant of, followed the fact patterns of the above cases and was heard by SCOTUS in United States v. Wong Kim Ark 1898. In a 6–2 decision the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that "the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth."

TXHawk wrote: ↑Wed Oct 31, 2018 12:00 am Senator Jacob Howard clearly spelled out the intent of the 14th Amendment in 1866, which was to define citizenship. He stated:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

While Howard did state the above it has been hashed to pieces by proponents on both sides without fully answering the question. "Is that a list of three different categories (foreigners, aliens, and people from the families of ambassadors and ministers), in which case all kids of foreigners and aliens would be excluded from birthright citizenship? Or is “aliens” used simply as a synonym for “foreigners” and meant to be read in apposition, in which case the exclusion is limited to the families of ambassadors and foreign ministers? (“Foreigners—that is, aliens—who belong to the families . . .” For a very good discussion of BOTH sides of this issue, read here:
https://www.nationalreview.com/2018/10/ ... quirement/

But back to the original point.... if tRump believes he can legally upend the 14th amendment, federal law, and the previous holdings of SCOTUS with an executive order, he doesn't understand what he is talking about. A law passed by congress, and all the appeals that would necessarily follow, may lead to an opinion different from the holding in Wong, but not an executive order by itself.

bblhd672 wrote: ↑Wed Oct 31, 2018 1:16 pm

TXHawk wrote: ↑Wed Oct 31, 2018 12:00 am

philbo wrote: ↑Tue Oct 30, 2018 10:49 pm In either the most arrogant display of ignorance concerning the US Constitution, or the newest in a long line of absurd pronouncements to distract the populace just days before the mid-term elections, tRump proposes to end birthright citizenship protected in the 14th Amendment with an executive order... Yep, winning as only tRump knows how.
https://www.reuters.com/article/us-usa- ... SKCN1N41MD

I am not sure how name calling of The President bolsters your case but civil discourse is an altogether different topic. So to the topic at hand. The 14th Amendment does not establish in Constitutional verbiage birthright citizenship nor was it intended to. The only Supreme Court Ruling on the matter I am aware of is Elk vs Wilkins circa 1884 which clearly affirmed the status of the parents did in fact determine the citizenship or eligibility of the child. Keeping in mind when the 14th amendment was passed there was no such thing as an illegal immigrant established by legal language in the Federal Statutes. The citation if the 14th has been a fairly recent construct and frankly a misuse of the amendment. Much like the 2nd Amendment a quick reading of the historical background and writings of the authors can clearly establish intent and meaning. The 14th is no different and I offer you below the words of its' author. I hope that you will agree by both authors intent and SCOTUS ruling birthright citizenship has been a graceful concession but not Constitutionally protected. If you want to argue it should be that is an entirely different topic and would require an additional amendment or a revision of the 14th.

Senator Jacob Howard clearly spelled out the intent of the 14th Amendment in 1866, which was to define citizenship. He stated:

"Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country."

TxHawk you will quickly realize that facts don’t make any difference to certain posters here. You’ve engaged one of them.

philbo wrote: ↑Tue Oct 30, 2018 10:49 pm In either the most arrogant display of ignorance concerning the US Constitution, or the newest in a long line of absurd pronouncements to distract the populace just days before the mid-term elections, tRump proposes to end birthright citizenship protected in the 14th Amendment with an executive order... Yep, winning as only tRump knows how.
https://www.reuters.com/article/us-usa- ... SKCN1N41MD