Tuesday, October 30, 2018

Daily Read: Proposal to End Birthright Citizenship Unconstitutional

In an opinion piece in the Washington Post, Neal Katayl and George Conway III argue that the president's publicized plan to end "birthright citizenship" by Executive Order would be unconstitutional.

1024px-Plaque_on_Dred_Scott_Case_-_Outside_Old_Courthouse_-_St._Louis_-_Missouri_-_USA_(41040335655)They argue that the EO's content contradicts the plain language of the first sentence of the Fourteenth Amendment, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."  In addition to the text, they argue that any originalist understanding of this sentence — which "sprang from the ashes of the worst Supreme Court decision in U.S. history, Dred Scott v. Sandford,the 1857 decision that said that slaves, and the children of slaves, could not be citizens of the United States" — must support birthright citizenship except in the most narrow of circumstances.

Further, they argue that any EO by the president would exceed the scope of his authority, given that it is Congress  that is in the "driver’s seat" on issues of immigration, and they quote candidate Trump having recognized that at one time.

The op-ed seeks to bridge factions on this issue by touting its own authorship and the neutrality of the Constitution:

The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away.

https://lawprofessors.typepad.com/conlaw/2018/10/daily-read-proposal-to-end-birthright-citizenship-unconstitutional.html

Current Affairs, Fourteenth Amendment | Permalink

Comments

If Ark is interpreted to also grant illegal alien parents birthright citizenship (Plyler) for children born in US then why inlude the phrase "subject to the jurisdiction thereof" in the 14th amendment. If you can be illegally in the US and still receive birthright citizenship then how could anyone be excluded? If noone could be excluded the why include the seemingly carveout of those "subject to the jurisdiction thereof". If a "person" gaining equal protection rights merely has to be in the US .

Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U.S. 206, 212 (1953)

If your subject to the jurisdiction merely by physical presence then why inlude the "subject to the jurisdiction thereof" clause in the 14th amendment? Been awhile since con law but would appreciate a liberal or conservative's opinion.

Posted by: Dana Karschner | Oct 31, 2018 9:11:49 PM

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