Demonstrating that birtherism rots minds, Trump platform:
End birthright citizenship. This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said “no sane country” would give automatic citizenship to the children of illegal immigrants.
Trump is clearly no legal scholar or even historically knowledgeable. He also appears to suck at sociology. Oppositional responses to his “proposal” are all over the map. Failing to KISS is a good way to lose to an ignorant demagogue. There is the downright silly stuff about people considered valuable US citizens based on jus soli that would become aliens under the Trump proposal.* Silly because ex post facto laws are unconstitutional. Thus, those that enjoy US birthright citizenship cannot have that taken away from them by any state or the USG even if the 14th Amendment were to be repealed.
It’s important to note the Section I of the 14th Amendment was necessitated to overturn the horrendous Supreme Court decision in Dred Scott v. Sandford. Specifically:
The Court held that neither Scott nor any other person of African descent–whether or not emancipated from slavery–could be “citizen of a state”, and therefore was unable to bring suit in federal court on the ground of diversity.
As blind to existing conditions of free African Americans that owned property and legally voted as Citizens United that sees no problem with the super wealthy buying US elections.
14th Amendment:
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.
This merely codified pre-existing common law and naturalization federal legislation before the Dred Scott decision. Among other duties assinged to Congress in Article 1. Section 8 is:
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
Why was “naturalization” specifically included in the original US Constitution while citizenship is unmentioned (except the requirement that the President must be a “natural born citizen)? For an exhaustive review of this, see, Bernard Lynch v. John Clarke and Julia Lynch. Opinion of the Hon Lewis H. Sandford. (It’s a long opinion and well worth the time to read. And no, Julia Lynch wasn’t an “anchor baby.”) The simple answer to that question is that under common law, birthright citizenship (jus soli) was so completely accepted in the colonies that there were no legal arguments against it. It was imported from Great Britain where it had been established law before 1482. It was only the requirements for naturalization that varied among the colonies, and uniformity under the new United States for naturalized citizens was deemed necessary since all would also be US citizens.
As to the question of whether or not slaves born in the US were citizens of the new nation, the framers of the Constitution simply didn’t address it. Common law, regardless of the status of parents, conferred citizenship on all “native born” persons. However, many states passed laws denying citizenship to slaves. If not for the Dred Scott decision and with the 13th Amendment, all former slaves should have enjoyed the same rights to citizenship as the people did at the inception of the country when they automatically transferred from British subjects to US citizens.
If the 14th Amendment were repealed, where would that leave this country? That question is way beyond my pay grade, but such a repeal on its own wouldn’t automatically do what the Trumpsters think it would because the issue would default to the pre-existing common law of 1864. Thus, only an amendment to the US Constitution can change birthright citizenship.
That’s possibly a discussion that “we the people” should have, but only if it’s held dispassionately and rationally among well-informed and mature adults because it’s a complex issue. Restricted Jus Soli, Jus Sanguinis, and Lex Sanguinis create problems as well. And none address the underlying problems that are aggravating immigration in much of the world today. So, perhaps our time would be more profitably spent on dealing with those matters instead of dicking around with Jus Soli.
*This type of argument is similar to the anti-abortionists that say, “What if Einstein’s mother chose to have an abortion?” It’s cheap and sloppy.
