One day after most of us engaged in the single most important duty of American citizenship – exercising the precious right to vote – can we please take a deep breath as a country and stop the national hysteria over whether this or any U.S. president can nullify the 14th Amendment guarantee of birthright citizenship by executive order?
While there are those who will vigorously debate the question from both perspectives – the president can or the president can’t – the consensus among legal scholars other than those who are hard to the right is that neither President Donald Trump nor any other president possesses that power under the Constitution.
In other words, Republican President Donald Trump can no more nullify the 14th Amendment by executive order than could Democrat President Barack Obama nullify the Second Amendment by the same process.
Why? Because the Constitution prescribes the methods for changing the Constitution in Article 5 and they both are extraordinarily difficult to achieve.
Our Constitution does not establish a U.S. president as a dictator, but as a constitutional officer leading the executive branch of government who is required to share power with Congress (the legislative branch) and the U.S. Supreme Court (the judicial branch).
While Trump’s birthright citizenship rhetoric might have appealed to his base in the waning days of the midterm elections, it ignored the actual dictates of the Constitution altogether.
First, the Constitution can be amended by a two-thirds vote of both houses of Congress followed by a ratification vote by three-fourths of the state legislatures or by conventions in three-fourths of the 38 states required to ratify an amendment. This is the only method ever implemented to change the Constitution. By this method, the 18th Amendment declaring Prohibition was repealed by passage of the 21st Amendment.
Second, the Constitution can be amended by a Constitutional Convention called by two-thirds of the state legislatures. If the convention proposes amendments, they must then be ratified by three-fourths of state legislatures or conventions in three-fourths of the states.
It would stand to reason then that while congressional scholars estimate some 11,699 attempts to amend or repeal constitutional amendments since the ratification of the Bill of Rights in 1789, the 18th Amendment is the only one ever to be repealed.
While most of us are familiar with the Bill of Rights – the first ten amendments to the U.S. Constitution, most people’s eyes glaze over when asked the specifics of most of the rest of the total 27 amendments. But it’s clear that birthright citizenship was no accident and was not something that our ancestors stumbled upon ill-advisedly.
The 14th Amendment, ratified in 1868, reads: “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.” (Mississippi first rejected the amendment, but later ratified it in 1870 – some 18 months late to the party like most states in the old Confederacy.)
Part of the so-called “Reconstruction Amendments” in the wake of the South’s defeat in the Civil War, the 14th Amendment was sandwiched between the 13th Amendment that abolished slavery and the 15th Amendment, which prohibited federal and state governments from denying a citizen the right to vote based on “race, color, or previous condition of servitude.”
In historical context, birthright citizenship was extended to the children of African Americans brought to this country in chains to be sold into bondage. The notion that birthright citizenship was wrong then or is wrong now is one that flies in the face of the most basic of civil rights.
Illegal immigration is an issue in which neither Republicans nor Democrats can claim much moral authority. Both parties kicked the can down the road on this issue and primarily for the sake of winning elections or having a labor force to do jobs able-bodied Americans declined to accept.
As a country, we can enforce existing immigration laws without attacking the concept of birthright citizenship. At least, we should.
Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com
61 comments:
Open Borders Sid makes the Sandersons proud again!
Did, this is what’s called a talking point to motivate the public. Some folks are too literal. #PushingBackFrontiersOfIgnorance
Well, he is right. Presidents can't just dismiss whole parts of the constitution. Good gosh, what if Obama had thought of this?
The problem is, Trump just heaves these stink bombs into the pubic and media just to stir up his base.
What an ignorant editorial.
Only the media and Democrats suggest that Trump's "rhetoric" is about unilaterally amending the Constitution. What's worse is that this ignorant editorial attempts to play on the supposed ignorance of the reader.
At what point did giving citizenship status to babies of individuals who actually live in this Country become this unique situation of anchor babies. The U.S. (and maybe Canada) are the only countries in the world who currently do so. This is why Trump is bringing it up. It's wrong, goes against the Constitution and isn't even logical.
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.
Why would any logical person assume that "subject to the jurisdiction thereof" carries no meaning? If any baby born on U.S. soil is automatically a citizen, there would be no need for qualification.
Attempting to prey on ignorance, such as this column, is THE reason why this country is so divided.
You won’t hear about the caravan or birthright citizenship again. The elections are over.
The President realizes the Constitution and it's amendments were promulgated with a wink and a nod. That is, the rights enumerated, whether birthright citizenship or gun rights, were meant for certain people, not for certain "other" people. That is a historic fact. The "wrong" people are now taking advantage of birthright citizenship and Pres. Trump is trying to correct the problem. Whether the Supreme Court allows him to do it, is a litmus test of his presidential power. If he gets this done he goes down as one of the greatest presidents. Right or wrong does not matter.
98% of americans are totally ignorant of what the u s constitution says, and at least on this issue, so is trump. and im a trump supporter.
Are any of the Sid haters capable of forming a cogent, coherent rebuttal to Sid's argument? Or are they reduced to childish name calling?
the illegal immigration problem is not going to be solved by repealing the 14th amendment, lts only going to be solved by using the countries resources to control illegal immigration. some one please tell me why this country spent ten years, billions of dollars , thousands of lives trying to solve the problems of a stinking arab county called iraq, but we cant save our own problems on illegal immigration?
Birthright Citizenship for illegal aliens. How did this ever become a thing? Is it just now that someone thought of why we allowed such a crime?
Funny how Sad Salter never brought up the abuse of Executive Orders when his boy was in Office for the previous 8 years...
I think it says plainly... "the right of the people to keep and bear Arms, shall not be infringed".
A liberal interprets the Constitution
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
"See that first part about 'a well regulated militia'? That's the most important part! It is essential to the interpretation of the amendment! You gun nuts want to pick and choose the parts you like!"
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.
"Ignore that part about 'subject to the jurisdiction thereof'. The first and last parts are what matters!"
Good editorial. The masses need to be reminded that the Constitution won't change because a sitting president uses their wacko fringes to stir up the idea that the Constitution is susceptible to change by Executive Order. The Constitution is the law of the land whether you're reading the 2nd or 14th Amendment regardless who the president is - and thank God for that.
It so refreshing that Trump's base are all Constitutional scholars. They've figured out 200+ years of jurisprudence and concluded that unequivocally the 2nd amendment allows unfettered gun rights and that the 14th amendment actually has no meaning.
The 14th amendment never refers to the parents of children born in the US. Under the 14th amendment, parentage is irrelevant. And the clause "Subject to the jurisdiction thereof" was inserted to exempt Native Americans on tribal lands (though this was later changed) and children of diplomats (ie Children born within the United States but not subject to the jurisdiction thereof). Parentage only matters if you are born abroad, and then you're only a citizen by virtue of US law, and not the 14th amendment.
Strangely, Trump's minions want to deny that the US has jurisdiction over an unborn fetus when it comes to citizenship, and then turn around and claim complete jurisdiction over an unborn fetus when it comes to abortion. In fact, they've already been in Court arguing that the US does have some jurisdiction over the unborn child of an immigrant in Garza v. Hargan.
to 9am....'birthright citizenship for illegal aliens'... sorry man you got it all wrong. when a child is born to an illegal alien here in the USA, its the chlld, NOT the parent who receives citizenship. and if the immigration authorities happen upon the situation a short time later, what are they going to do about it ? nothing they can do to the child. you CANNOT deport an american citizen.
TO 9:00am.........its not a crime to birth a child. the crime is illegal entry into this country. oh and by the way, it was you very own precious republican party who pushed the 14th amendment through after the civil war. the southern states were not even allowed to vote on it because under reconstruction they were not even considered part of the union. they were considered conquered provinces. maybe you should go back and repeat 8th grade history and civics , because you obviously got an F.
This thread is a really good illustration of the difference between a Facebook lawyer (8:19) and an actual lawyer (9:39).
Yeah, he's obviously not going to try to change the constitution with an executive order. The issue is that the 14th amendment has not been properly enforced. More than likely the order will simply clarify that the amendment was intended solely to grant citizenship to newly freed slaves, and not to foreign nationals. In fact, one of the sponsors of the amendment, then Michigan Senator Jacob Green, spelled it out on the senate floor stating, "This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that 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."
Completely shocked that 49% of the people voted yesterday are Socialist!!
9:39, how was the exception of Native Americans born on tribal lands later changed?
again, I cannot believe he's on the Bulldog Payroll
Lincoln completely disregarded several areas of the constitution. Why can’t any other president?
This question needs to be taken to the Supreme Court who interprets the Constitution not by ABC, NBC, Huff Post,CNN,other left leaning media & bloggers on this tread.
"Are illegal aliens protected by the 14th amendment?"
Illegal aliens can't vote (not yet anyway), therefore, that part of the Constitution does not apply to them as with other parts.
9:39 is viewed as an 'actual lawyer'? I see how you people think. You like what he wrote so he's an 'actual lawyer'. Forget the part about 'subject to the jurisdiction of' since 9:39 told us what he thinks it might have meant 200 years ago. So, he must be a learned and thoughtful attorney concerned only with facts and he knows what was meant when the amendment was inserted. He must - because he says he does.
On the other hand, it might well have meant people who would later slip in here unannounced and pregnant from England with the intention to do us harm, sort of like those who slip in here today, you know.
We can posit all day about what we think was meant 200 years ago. The fact is, that's not what it says. Nothing is said about tribes or native Americans or whatever they were called back then. That's nothing but a theory. So, a good lawyer, to some of you is either (a) one who has a theory with which you agree or, (b) one who, if on the court, would use their own preferences to rewrite law and shit-can the actual wording of the document.
So, Trump, thinking like the genius he is, will force the decision into the Court of Supremes and we will have an answer. Then you people can put on your vagina hats and scream and break other peoples' stuff and get on television.
As I posted a the beginning, 'I see how you people think'.
@11/7 10:29
I thought Republicans received more of the vote.
@10:23
The grammar of that quote doesn't support what you're saying. You're presenting it as a series of classes. 1. Foreigners 2. Aliens 3. Those who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.
When in reality there is just one class. "[A]liens" is an appositive noun that rephrases "foreigners." A clearer reading would be, "This will not include persons born in the United States who are foreigners who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States,"
This wouldn't even be an issue if people from Canada, England, France or Germany were having most of the "anchor babies". Trump even said as much a little while back when he named the unwelcome countries. The change in demographics must be stopped at all costs. If we're going to be racist let's at least be honest about it.
get ready for examinations of crimes and their cover ups. DC now has tens of thousands of lawyers ready willing and able to extract every single text message from every single R who helped this con job get by for the last 2 years....this shit is about to get real.
Trump thinks CNN and MSNBC are the enmey, wait until January and you are going to hear it all.
Yes I guess we should have just taken the Bush plan and worked to approve it. At least we would have something . These politicians will kick it down the road some more. Instead of a wall why not turnstile. Let me try to show up in France, England wherever and just do what I want. Don't register nothing can we at least get some kind of record of who is who in our country. I mean in four year old soccer they have a registration. Why is so wrong to ask people to register
The fourteenth amendment needs to be tested. Trump knows this and now it will. No one thinks that the second amendment covers bazookas; nor the first “ bomb threats”. No one should study the passage of the 14th amendment and interpret it to mean that enemy invaders that happen to birth a child here have safe anchor. Trumps order will get struck down and appealed - the rulings whether one agrees or not will help define the constitution better. The “ jurisdiction” problem deserves to be ruled upon.
The illegal and unilateral change of constitutional citizenship (DACA) was done with the stroke of a pen by Barry. amirighte?
11:23AM is right. "...and subject to the jurisdiction thereof", means only to exclude persons born of foreign diplomats in the US, who are not subject to the jurisdiction of the US, having diplomatic immunity.
This issue never will reach the Supreme Court. A district judge will rule correctly that the Constitution cannot be amended by executive order, and a court of appeals will affirm. The Supreme Court will not agree to consider the issue, because there is no plausible legal argument that supports Trump’s position.
Undoing the First and Second is how you start a shooting war.
Just FYI bucko.
means only to exclude persons born of foreign diplomats ...
Show us where the 14th says that.
Fortunately Mr. Trump's expertise is financial, not legal. He couldn't care less what some legal pinheads say the constitution prohibits. If he gets enough money and people behind him, and he will, those words in the constitution will read just like we need them to. The economy is all that counts, the rest is always flexible.
The 1st amendment is already under assault and no one on the right seems to mind! Encouraging violence on reporters and a Muslim ban sure seem like 1st amendment issues to me.
I am actually shocked at Sid for his 'argument' in this case - he is much smarter than this.
He starts with a premise, that in itself is wrong. Trump has not proposed to "change the constitution" by an Executive Order, but that is the opening and the gist of 90% of Sid's case.
We all know, including the President, the process for changing (amending, if you will) the Constitution. No need to spend all these words on that civics lesson.
The question here is "what exactly does the constitution, and the 14th amendment" say? Constitutional lawyers from all sides have and will debate this question at length, I'm sure, with no one individual able to discern the absolute interpretation.
Does the 14th amendment provide birthright citizenship to anyone and everyone born on American soil? Not according to any SCOTUS opinion issued in the over 150 years since the passage of the amendment. In fact, there have been a few sidestep answers to this question.
So Sid, don't drag the red herring across this issue of Trump and "Changing the Constitution" but instead debate either the legal issues of what the 14th Amendment says on the issue, what the various rulings on it has said, and the differences of legal opinions about it.
Or, in the alternative, debate the need for a good discussion on what the rule of law in the United States should be as to birthright citizenship - should we follow the lead of all other, except Canada, modern industrialized nations and change the approach which has only been in effect for the past fifty years - or should we admit that we are for open borders and not consider ourselves (and our citizenship) a cherished property to be earned?
That discussion would be a good one for Sid to pontificate on - but this "can the President change the constitution" is his worse attempt at producing a column since he started writing these things 35 years ago
... and a Muslim ban ...
Point out where Trump specifically banned Muslims.
5:00, If you type things into that keyboard sitting in front of you, some magic happens and you can learn things. Try it some time. I went ahead and got you started.
Here you go: https://www.bbc.com/news/av/world-us-canada-35036567/outcry-as-donald-trump-calls-for-us-muslim-ban
Which was of course followed by executive order 13769.
Do y'all worry Adam Schiff is going to get to the bottom of all this, their won't be any impeachment either if they get the goods he is just going to resign. Maxine is going to find out that no US, British or German banks will extend him credit too.
to 1;36pm... tell us mr.legal genius, how is the 14thaendment going to be 'tested'? this i got to hear.
13769 doesn't call for a ban on Muslims but you already know that. Instead you just post your troll bullshit here like the little inconsequential pissant you are.
Since the Constitution does not allow birthright citizenship there is no need to change it. The only thing that must change is government policy. This change in policy can be done by executive order.
See how easy that was ...
Why the hell are we still debating this issue. Bill Dees has ruled. Move the hell on!
BTW; Who the hell is Bill Dees? He probably drives the only cab in Hollandale.
Mr. Salter's comments are predicated upon his belief that Trump is or is trying to "nullify" a part of the 14th Amendment. His belief in this respect is incorrect; thus his rhetorical point about the 2nd Amendment is inconsequential. The particular clause of the 14th Amendment at issue has not often been addressed by the USSCT, and never, to my knowledge, in the context of illegal aliens residing in the United States. Trump's construction of the clause is supportable in the law and history of the 14th Amendment. There are at least two USSCT decisions, the first dating from 1898, that address the meaning of the clause in other contexts, but those are not controlling with respect to the issue of illegal aliens. The people who assert that the 14th Amendment does include the children born to illegal aliens depend a lot on a footnote in one USSCT which does not have the force of law since what was written in it was what lawyers call dicta--a statement by a judge not necessary to a decision. So what we have here is not the nullification of a provision of the 14th Amendment but a position that a particular clause of the 14th Amendment does not apply in the instance of children born to illegal aliens. There is a very large difference between "nullifying" a clear and unequivocal provision of the constitution and taking a position as to what a provision that is not on its face clear and unequivocal means. Mr Salter would do well to realize that this issue is more complex than he is willing or able to acknowledge. He might also learn or remember that interpretations of the constitution--the 14th Amendment in particular--have changed. The "separate but equal" society we once lived in was once upheld by the USSCT in its then-interpretation of the 14th Amendment. The issue here is a complicated one, Glib editorials that appear to be uninformed are not helpful.
Poor Tiny Donnie, he can't answer questions put forth by a CNN reporter. What is he'going to do when it's a congressman asking the questions?
Oh yeah he actually thinks the Senate will investigate the House or that the SC will just side with him and not rule based on the law.
Bizarre...
You all have overlooked Sec.1 of the amendment and the language is clear.
Most of you who think you are descendants legal immigrants best read the Naturalization laws.
If your folks didn't follow the naturalization laws after arriving and keep up with the continuing requirements, they were illegal and never officially became citizens. So, I guess without Sec. 1, I guess you are illegals too.
I think this could be a good thing. I’m ok with allowing President Humpy Dumpy to change birthright citizenship if it means the next democrat can regulate all the guns and end the mass shootings once and for all. Gun violence is a much more serious threat to me than some farmers, but if the right is that scared of them then I will make that trade off. There is a wide open statement about a well regulated militia that is open for interpretation and should allow plenty of cover for this to go down legally.
" All citizens born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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 the person of life, liberty, or property without due process of law; nor deny to any person the equal protection of the laws."
Then there's Article V which deals with changing the Constitution. After Congress proposes an amendment, the Archivist of the United States is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C.106b.
The enforcement and administration of sections of the Constitution can be changed by executive order by a President or Congressional legislation but NOT the intent of the language.
So, how much paperwork do you want parents to bring to the hospital proving they are citizens when a child is born on American soil?
But, now that we've politicized the judiciary so it's nearly under the control of one party, I suppose the Constitution is what any of you idiots decide it is without any regard to intent or your fellow citizens.
Excellent post, Nov 7 @ 10:48 p.m.
The issue is far more nuanced than most news commentators would suggest.
Salter seems to miss the most fundamental point, however. The issue is what the Fourteenth Amendment provides/requires in its language and in the history of its adoption, not whether Trump can amend it by executive order.
Now if Trump wants to issue executive "guidance" (remember how much nonsense emanated from the Obama administration under the guise of "guidance"?)or a policy interpretation of the Fourteenth Amendment in order to pitch the issue to the courts to resolve, then he can certainly do so. That doesn't mean he is trying to effect an amendment by executive order.
10:50 - guess you think that your nice analysis covers all aspects, but evidently you fail to miss a major difference between the 14th Amendment and its meaning and the 2nd Amendment and its meaning.
The 14th Amendment has not been addressed by the SCOTUS as to birthright citizenship of children born to non-permanent residents.
The 2nd Amendment has been addressed by SCOTUS, both in the 1930's and more recently in the Heller decision. Your interpretation of the 2nd does not comply with what the Supreme Court Justices have decided.
Whether the 14th Amendment means birthright citizenship to anyone and everyone - or not - is a question that needs to be put before SCOTUS. I realize that screws up what you remember from your civics lessons, assuming you have had one, but a review might be helpful for you.
1:55; Although your post is cute, it misses the mark, to wit:
"The 14th Amendment has not been addressed by the SCOTUS as to birthright citizenship of children born to non-permanent residents."
The key word is positioned LAST in your post, therefore you answered your own question. People who rush in here to drop a baby are not 'residents'. They are either visitors, travelers, illegal transients or women on the lam. Take your pick.
The 14th was probably not passed to cover women who jump across the line, leaving 51% of their placenta in America and 49% in Canada.
The Supreme Court is nothing but an overblown, big deal, big case jury. Like any jury, if you pack it with your folks, no matter how bad your case, you win. Trump is doing what all presidents seek to do. Pack the jury. The constitution means whatever that jury says it means when a case comes before it. Soon it will mean no anchor babies.
5:08 - You're obviously distraught over Aunt-Ruth tumbling out of her chair while dozing and watching The View. But, belly up and take it like a big boy. There are nine seated and presidents get to play a role, whether you like it or not. It's got to be tough bemoaning the fate of both Hillary and Ruth at the same time. Blessings your way.
**Open Borders Sid makes the Sandersons proud again! November 7, 2018 at 7:52 AM**
Sanderson and Howard Industries both advertising job openings? Illegals being arrested left and right in Madison County? Say it ain't so! Is Trump drying up the Mexicali-Applicant pool in Mississippi? Will the sky fall? Stay tuned for more of Sid next weekend.
4:18 am Please try to think beyond your prejudice to the practical implications.
How are the mothers of babies born here going to be required to prove residence?
I want you all to think very carefully about those documents you choose to think can be validated by the hospital as legitimate and cannot be forged.
Will all expectant mother now need a passport to prove they are citizens? Do you know how much that costs and how long it can takes? Have you ever been pregnant so YOU know about morning sickness and that some women have difficult pregnancies?
I wonder if any of you realize how many Russian women come here to give birth? Maybe the smarter thing to be for would be denying visas to all women who are citizens of foreign governments sanctioned by us!
The failure to think beyond political rhetoric is dangerous. You want to literally throw out babies with the dirty bath water.
I wonder if any of you realize how many Russian women come here to give birth?
Tell us how many?
Post a Comment