gozer wrote:would trump even be able to do anything of the sort without an amendment to the constitution? like the one repealing the xiv. amendment that the ku kluxers have been calling for since at least 1915 or so?
such as a whole bunch of states and congress having to approve such a thing?
That is an interesting question. I wonder if anyone knows.
I am of the opinion that the 14th Amendment has been the root of many of the worst court decisions of any part of the Constitution. I really Citizens United is now the law of the land, but I think it was a horrible misinterpretation of the 14th Amendment. The old idea of 14th Amendment making corporations people.
The writers of the 14th Amendment clearly intended it to extend citizenship to slaves, and to exclude children of foreigners and members of Indian tribes.
As far as I can tell, that was the law of the land for about 25 years.
Then due to some rather cruel and racist laws, Orientals (an interesting term that was not clearly defined) were able to immigrate to the US but could not become citizens.
In the 1890s the Supreme Court ruled that permanent residents’ American born kids were citizens. This was because a man who was born in the US of Chinese permanent residents was denied reentry to the US on the basis of being a Chinese National at a time when the Chinese Exclusion Act was in force.
In my opinion giving citizenship to the children of permanent residents was good policy, but an incorrect reading of the 14th Amendment. The Supreme Court ruled that the US chose its permanent residents, therefore they were under American jurisdiction. I can understand the logic. Excellent policy, but questionable interpretation of the Constitution. “Orientals” were not allowed to naturalize until the 1950s, so the bravery of the 442nd would not have been possible without this policy.
American Indian tribal citizens In Oklahoma were granted citizenship in 1907, when Oklahoma became a state. Other Indians were granted SOME citizenship rights in 1924, but in some states didn’t have full rights until 1948. In fact, in North Dakota there are voting laws currently in effect which take away some of the citizenship rights of Indians living on reservations.
The question is, when did temporary legal visitors and illegal aliens get included? These were not included in the Supreme Court decision.
When did birh tourism, in which pregnant tourist women from Russia or China or wherever can stay in special houses and give birth to American citizens? When did it become the law of the land where women can wait until they go into labor, run across the border, and demand they be taken to the hospital, giving birth to an American citizen at our expense? It would appear that, since the Supreme Court said people the US had invited to live in the US were under American jurisdiction due to the invitation, that does not apply to people who are not living in the US or else not here legally.
I have seen claims that the extension of birthright citizenship to these classes of people was by an executive order signed by LBJ. If that is true, then this extension could be revoked by executive order.
The idea that the Court never gave citizenship to illegal aliens is NOT a recent right-wing idea. Harry Reid proposed a law in 1992 stripping birthright citizenship from children of illegal aliens. He changed his mind in 1999. Only a cynic would say he changed his mind due to political considerations, such as pressure from the Las Vegas hotel and entertainment lobby.
I am not a constitutional scholar. I am also cynical enough to say that constitutional law depends on whatever nine people are currently on the Supreme Court, rather than the intent of the people who wrote the Constitution and its Amendments. Clearly the people who wrote the 14th Amendment intended it to give citizenship to freed slaves and their progeny, and not to the children of anyone who can sneak past the border guards.
Strictly from a constitutional perspective, I would like to see Trump sign an order ending birthright citizenship for children of tourists and illegal aliens. The legal challenges would be almost instantaneous, and the order would be set aside until the Supreme Court could decide the issue. That way the issue can be decided once and for all.