With the announcement of the Supreme courts' opinion yesterday the whole birthright citizenship issue rises to the top once again. All the constitutional scholars are weighing in on Facebook, lawyers and judges flocking to that like it's a golf course. Personally, I'm just the lowly caddy or groundskeeper. I have read the rules and formed my own idea about exactly what they mean. But I don't have a dog in this fight, not really, and so can take a completely objective look at the situation. The argument is, anyone born on American soil, unless they are the child of an enemy soldier or diplomats, are automatically citizens. That is what is being taught today. The question being, is that the actual intent of the legislation as it was written originally?
As I pointed out I'm no legal scholar, no expert on the law or on history. Thing is, I can read and form an opinion for myself. That's what education is supposed to accomplish anyway, education isn't the repeating of "facts" but rather gaining an understanding of the subject matter. I could spend days, weeks or months studying the 14th amendment and all the related opinions issued by the supreme court regarding that over the years, but all that would accomplish is hearing the arguments.
I've already heard the arguments from both sides of the debate. What it really boils down to is the intent of the 14th amendment in the first place. The big issue to be resolved at the time of the passage of that amendment was granting citizenship to those that were freed slaves. Remember at that time the Democrats didn't even view freed slaves as whole people, just 3/5ths. The southern states were busily creating what we call the Jim Crowe laws and the 14th amendment was a method to subvert all that nonsense. Yes, it was a civil rights issue. The legal terms concern birthright by the soil or birthright by blood. I know there are Latin legal terms for that Jus Soil and Jus Sanquinis, I googled that as I don't speak Latin. Currently in the United States it is birthright determined by the soil.
You see, in my opinion, during that time in 1868 there were many that remembered and indeed had known, veterans of the revolutionary war. You couldn't very well start saying citizenship is by the blood when your blood belongs to another nation. See the issue there? Today we are all celebrating our "heritage" and embracing that. That wasn't the case in 1868. The importation of slaves was illegal beginning in 1809. Given the life expectancy in those days, there weren't that many slaves left that hadn't been born on American soil. So, it seemed to be the logical choice. Even today citizenship based on Jus Sanqinis is the far more common law. Citizenship based on the place of birth is in the minority worldwide.
As with almost everything there are those that will find a way to exploit whatever it is to their advantage. That is, after all, the stock and trade of lawyers. That's where all the court rulings and opinions enter the picture. That's what it says but that isn't what it means. In more modern times there are those that have been exploiting that "by the soil" to their advantage, what we have taken to calling anchor babies. And that is being defended because well, they aren't enemy soldiers or diplomats. Then you can argue their parents should remain, as citizens themselves, to take care of those children. And of course, they should receive all the benefits of a natural born or naturalized citizen, it's only fair.
If only they had included, except anyone born on American soil whose parents are in the country illegally, all this would have been avoided. But they just said enemy soldiers and diplomats. But the lawyers have argued the phrase, under the jurisdiction of the United States, grants that citizenship. Strangely, if a criminal, or a suspected criminal, or even if they are not even suspected of being a criminal is in our country, their country can request they be returned because, they are under their jurisdiction. That's right. If the nature of that request concerns something criminal, it is called extradition. In any number of other situations that request is called Repatriation. They are not American citizens because of jus sanquinis, the right of the blood. A few countries include, Argentina, Brazil, Chile, Columbia, Cost Rica, Honduras and Peru. Their children are also citizens of those nations. What right does the United States have to deny that? Depends on jurisprudence.
The United States has had an immigration policy since 1875. It was called the Asian exclusion act. It's purpose was to limit the amount of cheap labor, exclude criminals and prostitutes. As the name implies it was mostly the Chinese at that time. Little changes over time. Today we are concerned with Latino peoples for the same reasons. Cheap labor, criminals and drug dealers in place of prostitutes. They have taken advantage of our immigration policies to gain entry and avoid deportation. Back in the 1800's there was this thing called a "credit ticket." That was paid for by American businessmen to attract Chinese laborers. The plan was to pay for their passage and they could work off the debt. You know, like the company store thing and sharecropping. That was part of the reason for the Asian Exclusion Act, also called the Page act. But there had been policies before that, all the way back to 1790, this one however was the first to restrict based on nationality.
It is important to understand that yesterdays opinion did not give Trump the power to end birthright citizenship. That isn't what the ruling was all about. All it said was that a single federal judge could not block a presidential order. It did not rule on the constitutionality of the order itself, only on whether a federal judge has the authority to effectively block that order nationally. All the other legal avenues remain open to block an order from the president. Birthright citizenship is still in effect and will remain that way until another opinion is issued or the 14th amendment itself is amended.
It's a question of jurisdiction. Jurisdiction is the legal authority to make judgements or legal decisions. How do you determine jurisdiction? That is accomplished by mutual agreement. We all have heard that possession is 9/10 of the law. That isn't strictly true. Possession is establish by a superior legal claim. But, as we all know, it's sure a lot harder when I'm holding it. It's my thinking that any nation that provides citizenship based on the blood (jus sanquinis) has a legal claim to any child born in America. Whether they choose to exercise that power or not isn't the question, they have jurisdiction. Have we been "kidnapping" these children all along, forcing United States citizenship upon them? Do they not have a right to claim citizenship in the country of their blood? Seems to me they would just as surely as the right of jus soil. All depends upon the jurisdiction doesn't it?
Now if your parents were confederates and you were born during the civil war you weren't born a citizen of the United States. You were repatriated. That was accomplished by Andrew Johnson (D) as president completely by 1868. You have to ask yourself, what if Lincoln had remained president. Would all those enemy soldiers and diplomats have been repatriated?