Rand wants to amend the constitution by congressional resolution?

[cindy25]

am I missing something, because this sounds stupid


"resolution that would amend the Constitution," according to a statement from the senators.


http://www.huffingtonpost.com/2011/01/27/vitter-paul-resolution-birthright-citizenship_n_814986.html

[nobody's_hero]

am I missing something, because this sounds stupid


"resolution that would amend the Constitution," according to a statement from the senators.


http://www.huffingtonpost.com/2011/01/27/vitter-paul-resolution-birthright-citizenship_n_814986.html

You're probably not missing anything. I'm guessing someone mis-spoke. Or the reporter didn't get the right statement.

There are specific guidelines for amending the Constitution, and 'resolutions' don't cut it.

I have to say though, that I really think they should propose an amendment.

[bobbyw24]

Birthright citizenship is not in the Constitution. It exists only because the Supreme Court interpreted the 14th Amendment that way.

[Krugerrand]

Two Republican senators are introducing a resolution that would end the constitutional right to citizenship that comes with being born on U.S. soil.

Rand Paul (Ky.) and David Vitter (La.) are introducing a resolution this week that would amend the Constitution so that a person born in the United States could only become an American citizen if one or more of his or her parents is an legal citizen, legal immigrant, or member of the armed forces, according to a joint press release Thursday.

My understanding was that a constitutional amendment was not necessary.

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.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Appropriate legislation should be able to define "and subject to the jurisdiction thereof" as excluding illegal immigrants from the jurisdiction of Section 1.

[Austrian Econ Disciple]

My understanding was that a constitutional amendment was not necessary.


Appropriate legislation should be able to define "and subject to the jurisdiction thereof" as excluding illegal immigrants from the jurisdiction of Section 1.

Well if persons born on US soil are not subject to the jurisdiction of the US, whose jurisdiction exactly would they fall under? You will need a Constitutional Amendment to change it.

Just for sake of argument imagine this passes, and illegal immigrants born in the US are not subject to US jurisdiction they would in effect, be able to do anything they want because it would be impossible to try them under US law, then again, they'll just say since they aren't under US law, that they can kill them at will. The US Government all ready does this to stateless persons, so it is not a far stretch.

[bobbyw24]

Read this to understand the issue

Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11

http://lawreview.richmond.edu/born-in-the-u-s-a/

[erowe1]

Well if persons born on US soil are not subject to the jurisdiction of the US, whose jurisdiction exactly would they fall under?

The jurisidiction of whatever nation they're citizens of. That's the point of including that phrase in the 14th Amendment. That way it doesn't make the babies of diplomats or tourists automatic citizens. And the final clause of the amendment gives Congress the authority to enforce its provisions by appropriate legislation. So, in order for there to be a law that grants birthright citizenship to the babies of illegal immigrants, Congress would first have to legislate that, which they have never done. If they choose to make it explicit that the babies of illegal immigrants are under the jurisdiction of their parents' nation and are not granted automatic citizenship by the 14th amendment, they are authorized to do that. No additional amendment is required.

[Austrian Econ Disciple]

The jurisidiction of whatever nation they're citizens of. That's the point of including that phrase in the 14th Amendment. That way it doesn't make the babies of diplomats or tourists automatic citizens. And the final clause of the amendment gives Congress the authority to enforce its provisions by appropriate legislation. So, in order for there to be a law that grants birthright citizenship to the babies of illegal immigrants, Congress would first have to legislate that, which they have never done. If they choose to make it explicit that the babies of illegal immigrants are under the jurisdiction of their parents' nation and are not granted automatic citizenship by the 14th amendment, they are authorized to do that. No additional amendment is required.

This is a more reasonable argument, however, if the US has no jurisdiction and jurisdiction falls on the persons nationality, and if the nation to which they have citizenship refuses to do anything, then what are you going to do? Remember, if the US has no jurisdiction over persons born from foreign nationals on US soil that means the US cannot legally do anything to that person, and that new baby falls under no US law. Granted, I am all in favor of ending automatic citizenship and jurisdiction for all persons (which means you are born stateless, and can opt-in to the State if you want), but if you are a person advocating immigration control this is not going to cut the cake. How many countries do you know who are going to go to the US and round up their citizens?

Also, I might add if you take this position, then legally the US cannot do anything to these persons who were born from foreign nationals on US soil. I think I am going to use that more in my open border arguments with regard to Constitutionalists. Thanks :)

[erowe1]

This is a more reasonable argument, however, if the US has no jurisdiction and jurisdiction falls on the persons nationality, and if the nation to which they have citizenship refuses to do anything, then what are you going to do? Remember, if the US has no jurisdiction over persons born from foreign nationals on US soil that means the US cannot legally do anything to that person, and that new baby falls under no US law. Granted, I am all in favor of ending automatic citizenship and jurisdiction for all persons (which means you are born stateless, and can opt-in to the State if you want), but if you are a person advocating immigration control this is not going to cut the cake. How many countries do you know who are going to go to the US and round up their citizens?

Also, I might add if you take this position, then legally the US cannot do anything to these persons who were born from foreign nationals on US soil. I think I am going to use that more in my open border arguments with regard to Constitutionalists. Thanks :)

"Jurisdiction" should be interpreted in this context the way it was understood by the state legislatures that ratified the amendment. It doesn't entail the US denying all authority to enforce laws on these people while in our borders. It just means that the kind of authority they have over them is not the kind they have over citizens, but the kind they have over whatever they are, be it diplomats of various types, tourists, or illegal migrants. Even those people who have explicit diplomatic immunity are subject to the authority of the US government when it comes to certain things, despite the fact that the phrase "subject to the jurisdiction thereof" in the 14th amendment definitely excludes them.

[RonPaulFanInGA]

Rand wants to amend the constitution by congressional resolution?

No. It's not a constitutional amendment. It's a resolution that correctly makes clear the fact that the 14th amendment doesn't give children of illegal immigrants birthright citizenship. The U.S. Supreme Court, from what I know, has never ruled on this issue either.

The intent (http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11) of the 14th Amendment's author:


The author of the 14th Amendment, Senator Jacob M. Howard, stated, in reference to the Amendment, "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Whoops!

[Austrian Econ Disciple]

"Jurisdiction" should be interpreted in this context the way it was understood by the state legislatures that ratified the amendment. It doesn't entail the US denying all authority to enforce laws on these people while in our borders. It just means that the kind of authority they have over them is not the kind they have over citizens, but the kind they have over whatever they are, be it diplomats of various types, tourists, or illegal migrants. Even those people who have explicit diplomatic immunity are subject to the authority of the US government when it comes to certain things, despite the fact that the phrase "subject to the jurisdiction thereof" in the 14th amendment definitely excludes them.

Jurisdiction should be interpreted how it was defined when the amendment was ratified. Jurisdiction then as it is now has the same definition, so it applies the same as it did then. At no point does the 14th specify those specific persons you eluded to. It does however explicitly mention persons born, or naturalized in the United States. I would like to see you argue in a court of law that jurisdiction actually doesn't mean the authority of US law in a given territory, or over a given person located in such territory. Even stout originalists wouldn't support that. (To be frank here, in terms of viewing the Constitution I am a textualist)

I think intent is rather silly. If it was their intent then they should have written it as such. Lysander Spooner has a great article called the Unconstitutionality of Slavery, that provides a great basis of understanding textualism and the document, which he wrote in 1846.

[erowe1]

Jurisdiction should be interpreted how it was defined when the amendment was ratified. Jurisdiction then as it is now has the same definition, so it applies the same as it did then. At no point does the 14th specify those specific persons you eluded to. It does however explicitly mention persons born, or naturalized in the United States. I would like to see you argue in a court of law that jurisdiction actually doesn't mean the authority of US law in a given territory, or over a given person located in such territory. Even stout originalists wouldn't support that. (To be frank here, in terms of viewing the Constitution I am a textualist)

I think intent is rather silly. If it was their intent then they should have written it as such. Lysander Spooner has a great article called the Unconstitutionality of Slavery, that provides a great basis of understanding textualism and the document, which he wrote in 1846.

The way we know how it was defined is by its usage, and by recognizing the different ways it was used in different contexts. The way it should be interpreted in the 14th amendment needs to be according to that context, and not according to some other one. Since "subject to the jurisdiction thereof" in the 14th amendment could not have been understood by those who ratified the amendment to mean "subject to any form of authority exercised by the federal government whatsoever," it should not be be used with such a definition as a way to force some legal application that those who ratified it could not have understood it to include.

[Austrian Econ Disciple]

The way we know how it was defined is by its usage, and by recognizing the different ways it was used in different contexts. The way it should be interpreted in the 14th amendment needs to be according to that context, and not according to some other one. Since "subject to the jurisdiction thereof" in the 14th amendment could not have been understood by those who ratified the amendment to mean "subject to any form of authority exercised by the federal government whatsoever," it should not be be used with such a definition as a way to force some legal application that those who ratified it could not have understood it to include.

Jurisdiction comes from the latin jūrisdictiō which means administration of justice. I am quite certain that persons living when the 14th was ratified understood the definition of jurisdiction and what it illicited. Then as now, it was commonly understood (especially in common law) that jurisdiction meant an entities authority in a given territory. Even in those days Sheriffs in one county could not arrest, detain, or enforce law when in another county and vice versa, unless expressly delegated between the two counties with a written agreement. That is the same today. It is why the FBI can arrest and enforce US law in every state whereas the police in the city of Boston, MA cannot enforce city ordinance outside of Boston. This is why I think intent is rather silly. I could write anything and say my intent was for such and such, but if it isn't actually in the written accord then it doesn't matter what my intent was. If legislators today knew that they could write anything, but the intent of their law was all that mattered, then just imagine what kind of sillyness would ensue. Instead of judging the law on its written merits, people would instead have to do pyschological analysis of what the author meant, or intended, or whatever other personal subjectiveness that they meant. If they intend something then write it into your law, or accord, otherwise we are all speculating.

[erowe1]

Jurisdiction comes from the latin jūrisdictiō which means administration of justice. I am quite certain that persons living when the 14th was ratified understood the definition of jurisdiction and what it illicited. Then as now, it was commonly understood (especially in common law) that jurisdiction meant an entities authority in a given territory. Even in those days Sheriffs in one county could not arrest, detain, or enforce law when in another county and vice versa, unless expressly delegated between the two counties with a written agreement. That is the same today. It is why the FBI can arrest and enforce US law in every state whereas the police in the city of Boston, MA cannot enforce city ordinance outside of Boston. This is why I think intent is rather silly. I could write anything and say my intent was for such and such, but if it isn't actually in the written accord then it doesn't matter what my intent was. If legislators today knew that they could write anything, but the intent of their law was all that mattered, then just imagine what kind of sillyness would ensue. Instead of judging the law on its written merits, people would instead have to do pyschological analysis of what the author meant, or intended, or whatever other personal subjectiveness that they meant. If they intend something then write it into your law, or accord, otherwise we are all speculating.

You can't possibly view language in such a way as to think that your three-word phrase "administration of justice" exhausts the possible usages of the English word "jurisdiction" in every context it may be used. Nor can you possibly think that that definition tells us what it means in the 14th amendment, since supplying that phrase in place of "jurisdition" there is nonsensical.

You are correct that those who ratified the 14th amendment understood what the word "jursidiction" meant in that context. And the understanding they had (or at least ought to have had, given the words used and the context in which they were used) needs to be the understanding we have when we say what laws are and are not constitutional according to the 14th amendment. This doesn't require psychological analysis. It requires lexicographical analysis. And, while being able to reproduce a three-word phrase from a Latin glossary is a good start, it hardly does justice to the range of possible usages of the English word "jurisdiction," as you'll see with a perusal of the entry for that word in the OED.

Edit: Here's a good article about the phrase "subject to the jurisdiction thereof." http://federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction.html

[sailingaway]

I have to read it. I like a resolution, which he SAID he would try first. If he doesn't, I'd be disappointed in him, since even LINDSAY GRAHAM said he'd do the amendment, and that is the way politicians have brushed people off on the right to life issue for generations...not trying the simpler, legislative angle. It also keeps the filthy fingers of our legislators out of our Constitution.

In fact the one concern I have with Rand is that he may be being manipulated on things like his constitutional convention he is discussing in KY, and on things like this. It is the ONLY area where I have wished he had a legal background, rather than a medical background.

--Austrian econ disciple, look at the concurring opinion in Kim Ark or whatever that case was.

[Pericles]

Read this to understand the issue

Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11

http://lawreview.richmond.edu/born-in-the-u-s-a/

Very enlightening - thanks

[Austrian Econ Disciple]

I have to read it. I like a resolution, which he SAID he would try first. If he doesn't, I'd be disappointed in him, since even LINDSAY GRAHAM said he'd do the amendment, and that is the way politicians have brushed people off on the right to life issue for generations...not trying the simpler, legislative angle. It also keeps the filthy fingers of our legislators out of our Constitution.

In fact the one concern I have with Rand is that he may be being manipulated on things like his constitutional convention he is discussing in KY, and on things like this. It is the ONLY area where I have wished he had a legal background, rather than a medical background.

--Austrian econ disciple, look at the concurring opinion in Kim Ark or whatever that case was.

I'll have to look it up.