It seems to me that the Trump EO serves as a political ploy by playing to his far right wing, while allowing for SOCUTS to disagree with the administration on a case. I dont see how Trump loses, he knew when he signed the EO that it wouldnt stand, I think it is more of a vehicle to other means, he already got them to limit nationwide injunctions with it.
It has felt odd to me to say the birthright citizenship clause of 14th Amendment got rid of “not subject to any foreign power” clause in the Civil Rights Act of 1866. The Civil Rights Act passed became law in April of 1866, over Johnson’s veto, and Congress passed the 14th Amendment in June of 1866. Congress then re-enacted the Civil Rights Act as part of the Enforcement Act of 1870 (Section 18). It feels incongruous that the 14th Amendment would be repealing the part of law that it was intended to constitutionalize, and which was re-enacted after ratification. (I’m also not sure how I feel about the Amendment adopting English common law, while rejecting American statutory law that was just passed)
My feeling is more that they weren’t really sure if they want to constitutionalize the “not subject to any foreign jurisdiction” clause, but they certainly want to protect former slaves. After all, the law had only existed for two months like two months and they might want to let the dual citizenship clause have time to play out, but they certainly wanted to protect former slaves (and I people who owed allegiance to no other country).
None of this is to say Trump can change it by EO, but if Congress wanted to pass a law to prevent birth citizenship for would be dual citizens, sure.
But ultimately, the "not subject to any foreign power" language still applied to foreigners, and both supporters and opponents of the Civil Rights Act of 1866 acknowledged it to be so. For instance, Sen. Lyman Trumbull (IL), one of the writers of the Civil Rights Act of 1866, and Sen. Edgar Cowan (PA), an opponent of it had this exchange:
COWAN: I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
TRUMBULL: Undoubtedly ... I should like to inquire of my friend from Pennsylvania if the children of Chinese now born in this country are not citizens?
COWAN: I think not.
TRUMBULL: I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.
COWAN: The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.
TRUMBULL: If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I might be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much a citizen as the child of a European.
So, you in this exchange had a few things. First off, both of them acknowledge that birthright citizenship already applies to those who were born of foreigners ("I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens." And "The children of German parents are citizens..."). Both of them acknowledge it. So, the "not owning allegiance to a foreign power" must mean something different than mere citizenship.
Even Pres. Andrew Johnson, when he wrote as part of the veto message: "This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color. Negroes, mulattoes, and persons of African blood. Every individual of these races born in the United States is by the bill made a citizen of the United States." So, you can see that both the proponents of it (such as Lyman Trumbull) and the opponents of it (such as Edgar Cowan and Andrew Johnson) acknowledged that this would apply to foreigners.
In reality, this was meant to exclude the same groups that were already excluded by the English Common Law rule, and that would later be excluded by "subject to the jurisdiction thereof".
Sen. John Conness (CA) stated that the language was meant to cover the same when he stated: "The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. ... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of the United States to be entitled to civil rights and to equal protection before the law with others."
This was during the debates of the 14th Amendment. The provisions are meant to be equal, and apply to foreigners.
The question isn’t just what the senator’s believed they were doing, but what the people (and the state legislators) understood it to mean when they were ratifying it. Federal law at the time (which has since been repealed) included the exclusion of people who were subjects to foreign power. I’m not sure how much state legislatures would be able to rely on the Congressional debates when ratifying the amendment, but relying on the text of enacted law seems much more reasonable — especially since the amendment was trying to give constitutional teeth to that very law.
For Johnson’s veto statement, the sentence before you started said, “By the first section of the bill all persons born in the United States and **not subject to any foreign power**, excluding Indians not taxed, are declared to be citizens of the United States.” The not subject to any foreign power must be doing something.
Additionally, it was in a draft version of the 14th Amendment, so they must have removed it for a reason. To me, the most natural difference is that the we don’t know if we want to raise the “not subject to any foreign power” restriction to a constitutional level, but we certainly do want to former slaves’ (or I guess people who owed no other allegiance) citizenship to a constitutional level — after all constitutional amendments are different from laws, and much harder to change.
I think part of this comes into play with the two way street of citizenship. Citizenship imposes allegiance. For example, when you look at a lot of the naturalization laws of the time, they required you to renounce your allegiance/citizenship in order to become a US citizen.
I’m not sure all of the contours of jus soli and jus sanguinis across various at the time, but my general feeling has been if you obtain citizenship by blood, that (and “allegiance”) probably applies in the womb, but by if you come from a jus soli country, it probably applies based on where you are physically born.
Also, if you look at Story’s Commentaries on Conflicting Laws (Section 48), it says:
“First, persons who are born in a
country are generally deemed to be citizens and subjects of that country. A reasonable qualification of the rule would seem to be, that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or curiosity, or occasional business. It would be diflicult,
however, to assert, that, in the present state of public law, such a qualification is universally established.” Essentially, if a permanent domicile had been established then the common law was the child would be citizens, but there wasn’t common law for the citizens of travelers about whether they would be citizens.
I think some of these issues have become more complex with federal governments involvement in immigration. Around the time of 14th Amendment, states could just prevent immigrants from establishing a domicile in their states, and essentially preemptively stop someone from becoming a citizen.
I think Congress probably would have the ability to regulate whether you can be a dual national at birth (although I have no idea how the mechanics of that would work) or whether temporary travelers’ children would have birthright citizenship. Again, none of this is to say I think Trump’s EO is correct.
However, your argument falls flat on its face when you consider that the U.S. citizenship law is directly connected to the term of "natural born subject" in the English Common Law. This was done throughout the United States, throughout the term before the 14th Amendment.
For instance, the case of Lynch v. Clarke (1844). In this, Julia Lynch was born to two temporary visitors to the United States. In the term of the day, her parents were temporarily sojourning in the country. They later left the United States, moved back to Ireland, and never set foot on U.S. soil again. Per the court: "Julia Lynch was born in this state, of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent abode.(a) They never concluded to remain here permanently, and after trying the country, they returned to their native land, and there ended their lives, many years afterwards. They took Julia with them to Ireland; she continued to reside there..."
The court ruled, however, that this didn't matter. The court ruled: "It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States." The court ruled that this law also applied to Julia Lynch.
In a separate case out of North Carolina, known as State (or North Carolina) v. Manuel (1838), the court reached the same conclusion that it was the English Common Law rule that governed citizenship. The Supreme Court of North Carolina stated: "The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from the man to the collective body of the people; and he who before was a 'subject of the king' is now 'a citizen of the state.'"
And the rule of English Common Law was shown to be that all persons, including those temporarily visiting, were subjects. Lord Cockburn put this best in English Common Law when he stated: "'By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality."
You can see from this that even people temporarily visiting the United States were "subject to the jurisdiction", so your argument that somehow temporary visitors to the United States could be excluded goes against the plain language details of what actually happened.
I could also point to the early writings of James Kent, also before the 14th Amendment, who stated: "Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent."
So, your argument that the common law hadn't established those only temporarily in the country is just plain false. English Common Law had established it, starting with Calvin's case. And that was carried forward to the United States.
The "not subject to any foreign power" language was designed to do one thing, and one thing only. Exclude the people who the common law had already established. It did not apply to normal foreigners, only those foreigners who, like ambassadors, were not subject to the United States, but were subject to the foreign power.
In my view illegal aliens are analogous to invading armies; their very presence in the country demonstrates they are not “subject to the jurisdiction” of the US. SCOTUS should uphold the EO.
The exception to invading armies had much more to do with the fact that they occupied territory. And this is not what illegal aliens do. There is no part of the United States where U.S. Jurisdiction is not sovereign. And the Supreme Court made this clear when describing this.
In U.S. v. Wong Kim Ark, the U.S. Supreme Court chose the case of U.S. v. Rice to show how an occupied territory was not under the jurisdiction of the United States. This was a tariff case that came out of the War of 1812, where Great Britain invaded and occupied territory in Maine. The question before the court was whether or not the Port of Castine, Maine, owed tariffs to the United States government during the term of occupation. The court ruled that the port was outside of the jurisdiction of the United States during the time of occupation, and under the jurisdiction of Great Britain, and therefore did not owe tariffs to the United States. During the time of invasion, the United States had no ability to extend their jurisdiction over that territory.
In the words of the Supreme Court: "In U. S. v. Rice (1819) 4 Wheat. 246, goods imported into Castine, in the state of Maine, while it was in the exclusive possession of the British authorities during the lase war with England were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: 'By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.' 4 Wheat. 254."
This is fundamentally different from illegal immigrants, who do not occupy territory. There is no territory outside of the United States. The United States still has jurisdiction over all its territory, including any territory that the illegal immigrant is currently upon. It's fundamentally different.
My question is whether Wurman or Lash publicly dissented from the commonly held view prior to the 2024 election. I know Eastman has been consistent in his fwiw.
It seems to me that the Trump EO serves as a political ploy by playing to his far right wing, while allowing for SOCUTS to disagree with the administration on a case. I dont see how Trump loses, he knew when he signed the EO that it wouldnt stand, I think it is more of a vehicle to other means, he already got them to limit nationwide injunctions with it.
It has felt odd to me to say the birthright citizenship clause of 14th Amendment got rid of “not subject to any foreign power” clause in the Civil Rights Act of 1866. The Civil Rights Act passed became law in April of 1866, over Johnson’s veto, and Congress passed the 14th Amendment in June of 1866. Congress then re-enacted the Civil Rights Act as part of the Enforcement Act of 1870 (Section 18). It feels incongruous that the 14th Amendment would be repealing the part of law that it was intended to constitutionalize, and which was re-enacted after ratification. (I’m also not sure how I feel about the Amendment adopting English common law, while rejecting American statutory law that was just passed)
My feeling is more that they weren’t really sure if they want to constitutionalize the “not subject to any foreign jurisdiction” clause, but they certainly want to protect former slaves. After all, the law had only existed for two months like two months and they might want to let the dual citizenship clause have time to play out, but they certainly wanted to protect former slaves (and I people who owed allegiance to no other country).
None of this is to say Trump can change it by EO, but if Congress wanted to pass a law to prevent birth citizenship for would be dual citizens, sure.
But ultimately, the "not subject to any foreign power" language still applied to foreigners, and both supporters and opponents of the Civil Rights Act of 1866 acknowledged it to be so. For instance, Sen. Lyman Trumbull (IL), one of the writers of the Civil Rights Act of 1866, and Sen. Edgar Cowan (PA), an opponent of it had this exchange:
COWAN: I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
TRUMBULL: Undoubtedly ... I should like to inquire of my friend from Pennsylvania if the children of Chinese now born in this country are not citizens?
COWAN: I think not.
TRUMBULL: I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.
COWAN: The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.
TRUMBULL: If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I might be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much a citizen as the child of a European.
So, you in this exchange had a few things. First off, both of them acknowledge that birthright citizenship already applies to those who were born of foreigners ("I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens." And "The children of German parents are citizens..."). Both of them acknowledge it. So, the "not owning allegiance to a foreign power" must mean something different than mere citizenship.
Even Pres. Andrew Johnson, when he wrote as part of the veto message: "This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color. Negroes, mulattoes, and persons of African blood. Every individual of these races born in the United States is by the bill made a citizen of the United States." So, you can see that both the proponents of it (such as Lyman Trumbull) and the opponents of it (such as Edgar Cowan and Andrew Johnson) acknowledged that this would apply to foreigners.
In reality, this was meant to exclude the same groups that were already excluded by the English Common Law rule, and that would later be excluded by "subject to the jurisdiction thereof".
Sen. John Conness (CA) stated that the language was meant to cover the same when he stated: "The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. ... We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of the United States to be entitled to civil rights and to equal protection before the law with others."
This was during the debates of the 14th Amendment. The provisions are meant to be equal, and apply to foreigners.
The question isn’t just what the senator’s believed they were doing, but what the people (and the state legislators) understood it to mean when they were ratifying it. Federal law at the time (which has since been repealed) included the exclusion of people who were subjects to foreign power. I’m not sure how much state legislatures would be able to rely on the Congressional debates when ratifying the amendment, but relying on the text of enacted law seems much more reasonable — especially since the amendment was trying to give constitutional teeth to that very law.
For Johnson’s veto statement, the sentence before you started said, “By the first section of the bill all persons born in the United States and **not subject to any foreign power**, excluding Indians not taxed, are declared to be citizens of the United States.” The not subject to any foreign power must be doing something.
Additionally, it was in a draft version of the 14th Amendment, so they must have removed it for a reason. To me, the most natural difference is that the we don’t know if we want to raise the “not subject to any foreign power” restriction to a constitutional level, but we certainly do want to former slaves’ (or I guess people who owed no other allegiance) citizenship to a constitutional level — after all constitutional amendments are different from laws, and much harder to change.
I think part of this comes into play with the two way street of citizenship. Citizenship imposes allegiance. For example, when you look at a lot of the naturalization laws of the time, they required you to renounce your allegiance/citizenship in order to become a US citizen.
I’m not sure all of the contours of jus soli and jus sanguinis across various at the time, but my general feeling has been if you obtain citizenship by blood, that (and “allegiance”) probably applies in the womb, but by if you come from a jus soli country, it probably applies based on where you are physically born.
Also, if you look at Story’s Commentaries on Conflicting Laws (Section 48), it says:
“First, persons who are born in a
country are generally deemed to be citizens and subjects of that country. A reasonable qualification of the rule would seem to be, that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or curiosity, or occasional business. It would be diflicult,
however, to assert, that, in the present state of public law, such a qualification is universally established.” Essentially, if a permanent domicile had been established then the common law was the child would be citizens, but there wasn’t common law for the citizens of travelers about whether they would be citizens.
I think some of these issues have become more complex with federal governments involvement in immigration. Around the time of 14th Amendment, states could just prevent immigrants from establishing a domicile in their states, and essentially preemptively stop someone from becoming a citizen.
I think Congress probably would have the ability to regulate whether you can be a dual national at birth (although I have no idea how the mechanics of that would work) or whether temporary travelers’ children would have birthright citizenship. Again, none of this is to say I think Trump’s EO is correct.
However, your argument falls flat on its face when you consider that the U.S. citizenship law is directly connected to the term of "natural born subject" in the English Common Law. This was done throughout the United States, throughout the term before the 14th Amendment.
For instance, the case of Lynch v. Clarke (1844). In this, Julia Lynch was born to two temporary visitors to the United States. In the term of the day, her parents were temporarily sojourning in the country. They later left the United States, moved back to Ireland, and never set foot on U.S. soil again. Per the court: "Julia Lynch was born in this state, of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent abode.(a) They never concluded to remain here permanently, and after trying the country, they returned to their native land, and there ended their lives, many years afterwards. They took Julia with them to Ireland; she continued to reside there..."
The court ruled, however, that this didn't matter. The court ruled: "It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States." The court ruled that this law also applied to Julia Lynch.
In a separate case out of North Carolina, known as State (or North Carolina) v. Manuel (1838), the court reached the same conclusion that it was the English Common Law rule that governed citizenship. The Supreme Court of North Carolina stated: "The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from the man to the collective body of the people; and he who before was a 'subject of the king' is now 'a citizen of the state.'"
And the rule of English Common Law was shown to be that all persons, including those temporarily visiting, were subjects. Lord Cockburn put this best in English Common Law when he stated: "'By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality."
You can see from this that even people temporarily visiting the United States were "subject to the jurisdiction", so your argument that somehow temporary visitors to the United States could be excluded goes against the plain language details of what actually happened.
I could also point to the early writings of James Kent, also before the 14th Amendment, who stated: "Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent."
So, your argument that the common law hadn't established those only temporarily in the country is just plain false. English Common Law had established it, starting with Calvin's case. And that was carried forward to the United States.
The "not subject to any foreign power" language was designed to do one thing, and one thing only. Exclude the people who the common law had already established. It did not apply to normal foreigners, only those foreigners who, like ambassadors, were not subject to the United States, but were subject to the foreign power.
In my view illegal aliens are analogous to invading armies; their very presence in the country demonstrates they are not “subject to the jurisdiction” of the US. SCOTUS should uphold the EO.
The exception to invading armies had much more to do with the fact that they occupied territory. And this is not what illegal aliens do. There is no part of the United States where U.S. Jurisdiction is not sovereign. And the Supreme Court made this clear when describing this.
In U.S. v. Wong Kim Ark, the U.S. Supreme Court chose the case of U.S. v. Rice to show how an occupied territory was not under the jurisdiction of the United States. This was a tariff case that came out of the War of 1812, where Great Britain invaded and occupied territory in Maine. The question before the court was whether or not the Port of Castine, Maine, owed tariffs to the United States government during the term of occupation. The court ruled that the port was outside of the jurisdiction of the United States during the time of occupation, and under the jurisdiction of Great Britain, and therefore did not owe tariffs to the United States. During the time of invasion, the United States had no ability to extend their jurisdiction over that territory.
In the words of the Supreme Court: "In U. S. v. Rice (1819) 4 Wheat. 246, goods imported into Castine, in the state of Maine, while it was in the exclusive possession of the British authorities during the lase war with England were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: 'By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.' 4 Wheat. 254."
This is fundamentally different from illegal immigrants, who do not occupy territory. There is no territory outside of the United States. The United States still has jurisdiction over all its territory, including any territory that the illegal immigrant is currently upon. It's fundamentally different.
My question is whether Wurman or Lash publicly dissented from the commonly held view prior to the 2024 election. I know Eastman has been consistent in his fwiw.