“Complete jurisdiction” is adding an extra word to justify misinterpreting the constitution and then getting into that whole allegiance reasoning.
These two additional categories for exceptions do not fit because they have to follow all laws when present. That’s how you know if they are unlawfully or lawfully present.
We must note where the phrasing “complete jurisdiction” originated—from Senator Lyman Turnbull, one of the principal authors of the Fourteenth Amendment.
That phrasing is from Senator Turnbull on the meaning of “subject to the jursidiction.”
Further, in Elk v Wilkins, the Court specifically validated Turnbull's phrasing and articulation of what "subject to the jurisdiction" meant.
"The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."
Given that illegal aliens are here in defiance of US law and are therefore indisputably in conflict with the US government, not only cannot they not claim to have actual allegiance to the United States, but their defiance of US law is an unequivocal rejection of allegiance to the United States.
Thus even within the rubric established in Elk and Wong Kim Ark, illegal aliens are not competent to endow their offspring with US citizenship.
That is the Constitution, that is the Fourteenth Amendment, that is the legislative history of the Fourteenth Amendment, and that is the Supreme Court's view on the Fourteenth Amendment.
Why didn’t the author of the amendment use that literal phrasing in the actual amendment?
The process to amend the constitution is more than one person. Do we have a record of everyone who agree to that amendment?
Today’s Supreme Court justices are the ones responsible to interpret it. They derive their power from the constitution. They derive their power from the consent of the governed meaning “we the people”.
The prevailing opinion reflects what people believe… no matter how Unwise. It may suck that it can be easily manipulated sometimes. However, I believe I came to an educated opinion with impartiality.
Today’s Supreme Court has not voted on it. It may not be unanimous. I would be curious what the dissenting opinion looks like.
However, this general reasoning is incredibly unique. I don’t find it compelling enough to change my mind. I appreciate you for writing this and offering me a different perspective. I believe our debate will be settled when it reaches the Supreme Court for a decision. We seem strongly stuck to our interpretations.
The procedural aspect is another can of worms. Nationwide injunctions might be necessary. I have never considered a case like this where the executive branch is taking an unconventional interpretation.
As was made plain by Elk v Wilkins, that additional word is not required for the meaning of the phrase to be clear.
We have the Congressional record of the debates over the Fourteenth Amendment. Turnbull’s reasoning was in fact the prevailing understanding of the phrase “subject to the jurisdiction”.
Moreover, we need to understand that the Constitution merely defines the scope of the judicial power: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” (Article III Section 2). The Constitution does not state what the actual judicial function operating within that authority is—rather, we (and Marshall) derive our understanding from the common 18th century understanding of that function.
Because we have the binding precedent of Marbury, our modern understanding of the judicial function is necessarily fixed on the courts stating what the law is.
Further, “prevailing opinion” is of no consequence in apprehending the law. The courts are to look to the text of the Constitution, the text of any statutes, and to the legislative history as needed when a clarification is warranted. That is an objective and rational framework which does not shift according to fickle popular opinion.
I have stated what is factually found in the Constitution, in the law, and in Supreme Court precedent. You have not refuted a single point.
That is the status of your ill-informed and ill-considered opinion: refuted and rejected.
The Western District of Washington is part of the Ninth Circuit, which has the highest rate for being overturned as well as the highest rate for unanimous reversals.
Coughenour is 84 and never moved beyond the District Court level—which suggests he’s not the sharpest legal mind on the District bench.
There will be hearings, and Trump will probably lose at the District and at the Circuit level.
Eventually this gets to the Supreme Court. How that goes depends entirely on how closely the Justices read Wong Kim Ark. No prediction on how the Supreme Court will rule.
When it gets that far I may see if I can file an amicus brief laying out my reasoning on why Wong doesn’t apply to illegal aliens.
Bravo Peter - one of your most brilliant! Just as I read a paragraph and think, “I can’t possibly become more impressed by this man”, you upstage yourself with your next bit of perfect reasoning, then your next, and your next.
Okay, the Supreme Court needs to address and clarify a whole slew of words, phrases, paragraphs, and concepts pertaining to the Fourteenth Amendment. This will have a ripple effect of one can of worms opening after another, but it’s got to be done - and done as objectively and apolitically as possible. For example, the phrase “ in conflict with” - does this mean a Constitutionally-valid war declared by Congress? Or just any policy-based disagreement with another country? They need to nail this down, as specifically as possible.
Clarifying all of these may mean they will also need to revisit previous Court rulings. Would it result in, for example, rulings pertaining to tribal vs US matters for Native Americans? They aren’t going to want to tackle this, but that may be the ripple effect.
I always love your wit, Peter. “CNN, the Most Busted Name in Fake News” - heh, heh, heh. And your subtlety: “This is a sweeping generalization that is, like all generalizations, fundamentally false.” My God, I adore you!
Interesting you bring up “clarify . . . words, phrases, paragraphs, and concepts.” Peter, this relates to our “pardons” thread and the conflicts between letter of the law and spirit of the law. For example, “no law respecting an establishment of religion, or prohibiting the free exercise thereof.” One fair read of that is “freedom of religion.” Another is “within implied limits,” which seems certain in the context of Barbary pirates and wild Indians.
Regarding the First Amendment's protections on the freedom of religion, the key word is "respecting", which in the American English of the day held the following definition:
"RESPECT'ING, participle present tense Regarding; having regard to; relating to."
In other words, Congress is precluded from passing any law which touches on any church or denomination, or even faith. The immediate impetus for this particular binding upon Congress was the religious laws and requirements for holding public office found in England--we should not forget that many of the colonies were founded by religious refugees from England--and which were a part of British law up into the 19th century.
Since the prohibition is categorical and absolute, there are no "limits" which may be implied. Much as with the prohibition on abridging the freedom of speech or infringing upon the right to keep and bear arms, the prohibition on religious laws is categorical. The whole corpus of such law is clearly and unambiguously in the "thou shalt not" column.
While "conflict" often means the alien is from a country with whom we are at war, that is not necessarily the case.
For example, a Russian emigre could, in the present circumstance of the war in Ukraine, be counted as a possible "enemy alien". Likewise a person from mainland China. In neither case is the United States technically at war, but few would argue that a conflict exists between Russia and the United States, and between China and the United States.
However, the understanding of the term "enemy alien" is, I believe, already well established within international law and does not require further clarification. Where clarification should be made is that anyone being given a permanent resident status (i.e., a "green card") needs to affirmatively repudiate such governments and policies with which the United States takes issue. Ideally, acceptance of a permanent resident status should entail a declaration of allegiance to the United States not unlike the oath of citizenship. A person who cannot in good conscience take such an oath would not then be able to, in good conscience, take the oath of citizenship.
We do not need more "citizens" such as Ilhan Omar who regularly despises the country that has taken her into its embrace.
Ilhan is, unfortunately, my congresswoman. I supported her opponent in the primary, but because the Democratic Party machine in Minneapolis is as corrupt as that of Chicago, he did not win. It felt like a death blow to my city. I object to her on so many grounds that it would take a book to list them all. I sure hope that some aspect of Trump’s administration proves to be her political undoing!
"but for affirming that fundamental rights are not conditioned upon citizenship."
We should avoid the term "fundamental" right as it (by design) conflates those granted by the state and those endowed by our Creator. Citizenship comes from We the People via our government. The rights of freedom of speech and due process come from our Creator. For illegal aliens, due process means being quickly and respectfully repatriated to their home nations.
By their very nature, fundamental rights are not privileges bestowed by the State, but come from the hand of God. "Inalienable rights" is in the minds of many synonymous with "fundamental rights."
Yes, they intentionally and falsely treat them as synonyms to rationalize their encroachment. No government ever has the authority to encroach on our natural rights. Natural Rights, by definition, can never conflict with each other. The only legitimate purpose of government is to secure our Natural Rights.
“Complete jurisdiction” is adding an extra word to justify misinterpreting the constitution and then getting into that whole allegiance reasoning.
These two additional categories for exceptions do not fit because they have to follow all laws when present. That’s how you know if they are unlawfully or lawfully present.
We must note where the phrasing “complete jurisdiction” originated—from Senator Lyman Turnbull, one of the principal authors of the Fourteenth Amendment.
That phrasing is from Senator Turnbull on the meaning of “subject to the jursidiction.”
Further, in Elk v Wilkins, the Court specifically validated Turnbull's phrasing and articulation of what "subject to the jurisdiction" meant.
"The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."
Elk v. Wilkins, 112 U.S. 94 (1884)
https://supreme.justia.com/cases/federal/us/112/94/
Given that illegal aliens are here in defiance of US law and are therefore indisputably in conflict with the US government, not only cannot they not claim to have actual allegiance to the United States, but their defiance of US law is an unequivocal rejection of allegiance to the United States.
Thus even within the rubric established in Elk and Wong Kim Ark, illegal aliens are not competent to endow their offspring with US citizenship.
That is the Constitution, that is the Fourteenth Amendment, that is the legislative history of the Fourteenth Amendment, and that is the Supreme Court's view on the Fourteenth Amendment.
Why didn’t the author of the amendment use that literal phrasing in the actual amendment?
The process to amend the constitution is more than one person. Do we have a record of everyone who agree to that amendment?
Today’s Supreme Court justices are the ones responsible to interpret it. They derive their power from the constitution. They derive their power from the consent of the governed meaning “we the people”.
The prevailing opinion reflects what people believe… no matter how Unwise. It may suck that it can be easily manipulated sometimes. However, I believe I came to an educated opinion with impartiality.
Today’s Supreme Court has not voted on it. It may not be unanimous. I would be curious what the dissenting opinion looks like.
However, this general reasoning is incredibly unique. I don’t find it compelling enough to change my mind. I appreciate you for writing this and offering me a different perspective. I believe our debate will be settled when it reaches the Supreme Court for a decision. We seem strongly stuck to our interpretations.
The procedural aspect is another can of worms. Nationwide injunctions might be necessary. I have never considered a case like this where the executive branch is taking an unconventional interpretation.
As was made plain by Elk v Wilkins, that additional word is not required for the meaning of the phrase to be clear.
We have the Congressional record of the debates over the Fourteenth Amendment. Turnbull’s reasoning was in fact the prevailing understanding of the phrase “subject to the jurisdiction”.
Moreover, we need to understand that the Constitution merely defines the scope of the judicial power: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority” (Article III Section 2). The Constitution does not state what the actual judicial function operating within that authority is—rather, we (and Marshall) derive our understanding from the common 18th century understanding of that function.
Because we have the binding precedent of Marbury, our modern understanding of the judicial function is necessarily fixed on the courts stating what the law is.
Further, “prevailing opinion” is of no consequence in apprehending the law. The courts are to look to the text of the Constitution, the text of any statutes, and to the legislative history as needed when a clarification is warranted. That is an objective and rational framework which does not shift according to fickle popular opinion.
I have stated what is factually found in the Constitution, in the law, and in Supreme Court precedent. You have not refuted a single point.
That is the status of your ill-informed and ill-considered opinion: refuted and rejected.
https://www.startribune.com/a-bid-to-block-trumps-cancellation-of-birthright-citizenship-is-in-federal-court/601209691?utm_source=gift
Item just now from the Associated Press - any comments or predictions on what’s next, Peter?
The Western District of Washington is part of the Ninth Circuit, which has the highest rate for being overturned as well as the highest rate for unanimous reversals.
Coughenour is 84 and never moved beyond the District Court level—which suggests he’s not the sharpest legal mind on the District bench.
There will be hearings, and Trump will probably lose at the District and at the Circuit level.
Eventually this gets to the Supreme Court. How that goes depends entirely on how closely the Justices read Wong Kim Ark. No prediction on how the Supreme Court will rule.
When it gets that far I may see if I can file an amicus brief laying out my reasoning on why Wong doesn’t apply to illegal aliens.
Wow, Peter - fabulous reply! I expect a drop of water and you give me a bucket of information champagne!
Bravo Peter - one of your most brilliant! Just as I read a paragraph and think, “I can’t possibly become more impressed by this man”, you upstage yourself with your next bit of perfect reasoning, then your next, and your next.
Okay, the Supreme Court needs to address and clarify a whole slew of words, phrases, paragraphs, and concepts pertaining to the Fourteenth Amendment. This will have a ripple effect of one can of worms opening after another, but it’s got to be done - and done as objectively and apolitically as possible. For example, the phrase “ in conflict with” - does this mean a Constitutionally-valid war declared by Congress? Or just any policy-based disagreement with another country? They need to nail this down, as specifically as possible.
Clarifying all of these may mean they will also need to revisit previous Court rulings. Would it result in, for example, rulings pertaining to tribal vs US matters for Native Americans? They aren’t going to want to tackle this, but that may be the ripple effect.
I always love your wit, Peter. “CNN, the Most Busted Name in Fake News” - heh, heh, heh. And your subtlety: “This is a sweeping generalization that is, like all generalizations, fundamentally false.” My God, I adore you!
Interesting you bring up “clarify . . . words, phrases, paragraphs, and concepts.” Peter, this relates to our “pardons” thread and the conflicts between letter of the law and spirit of the law. For example, “no law respecting an establishment of religion, or prohibiting the free exercise thereof.” One fair read of that is “freedom of religion.” Another is “within implied limits,” which seems certain in the context of Barbary pirates and wild Indians.
Regarding the First Amendment's protections on the freedom of religion, the key word is "respecting", which in the American English of the day held the following definition:
"RESPECT'ING, participle present tense Regarding; having regard to; relating to."
https://webstersdictionary1828.com/Dictionary/respecting
The word holds fundamentally the same definition today.
https://www.merriam-webster.com/dictionary/respecting
In other words, Congress is precluded from passing any law which touches on any church or denomination, or even faith. The immediate impetus for this particular binding upon Congress was the religious laws and requirements for holding public office found in England--we should not forget that many of the colonies were founded by religious refugees from England--and which were a part of British law up into the 19th century.
Since the prohibition is categorical and absolute, there are no "limits" which may be implied. Much as with the prohibition on abridging the freedom of speech or infringing upon the right to keep and bear arms, the prohibition on religious laws is categorical. The whole corpus of such law is clearly and unambiguously in the "thou shalt not" column.
While "conflict" often means the alien is from a country with whom we are at war, that is not necessarily the case.
For example, a Russian emigre could, in the present circumstance of the war in Ukraine, be counted as a possible "enemy alien". Likewise a person from mainland China. In neither case is the United States technically at war, but few would argue that a conflict exists between Russia and the United States, and between China and the United States.
However, the understanding of the term "enemy alien" is, I believe, already well established within international law and does not require further clarification. Where clarification should be made is that anyone being given a permanent resident status (i.e., a "green card") needs to affirmatively repudiate such governments and policies with which the United States takes issue. Ideally, acceptance of a permanent resident status should entail a declaration of allegiance to the United States not unlike the oath of citizenship. A person who cannot in good conscience take such an oath would not then be able to, in good conscience, take the oath of citizenship.
We do not need more "citizens" such as Ilhan Omar who regularly despises the country that has taken her into its embrace.
Ilhan is, unfortunately, my congresswoman. I supported her opponent in the primary, but because the Democratic Party machine in Minneapolis is as corrupt as that of Chicago, he did not win. It felt like a death blow to my city. I object to her on so many grounds that it would take a book to list them all. I sure hope that some aspect of Trump’s administration proves to be her political undoing!
"but for affirming that fundamental rights are not conditioned upon citizenship."
We should avoid the term "fundamental" right as it (by design) conflates those granted by the state and those endowed by our Creator. Citizenship comes from We the People via our government. The rights of freedom of speech and due process come from our Creator. For illegal aliens, due process means being quickly and respectfully repatriated to their home nations.
In general usage, "fundamental rights" is a term used to refer to rights upon which the State should encroach reluctantly if at all.
https://www.law.cornell.edu/wex/fundamental_right
By their very nature, fundamental rights are not privileges bestowed by the State, but come from the hand of God. "Inalienable rights" is in the minds of many synonymous with "fundamental rights."
Yes, they intentionally and falsely treat them as synonyms to rationalize their encroachment. No government ever has the authority to encroach on our natural rights. Natural Rights, by definition, can never conflict with each other. The only legitimate purpose of government is to secure our Natural Rights.