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Textualism vs. Intent

Capitol Ideas is reporting on the latest publicity stunt by Rep. Metcalfe, to deal with the illegal immigration issue, namely re-examining the 14th Amendment, which says:

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.

There’s been a lot of talk in originalist circles about whether this was even intended to apply to people who are citizens of another country who have a child in the United States. I suppose to whether you adhere to the school of originalism that says the intent of the founders is important, or whether it’s better to pay attention to what they actually wrote. What they actually wrote seems to mean to me that if you’re born here, you’re a citizen. I suppose it would hinge on “subject to the jurisdiction thereof.”

But regardless, while I appreciate Metcalfe’s leadership on Second Amendment rights, I find his demagogic promotion of populist issues (populist federal issues, I would note) like illegal immigration, tiresome.

14 Responses to “Textualism vs. Intent”

  1. RRRoark says:

    I read “subject to the jurisdiction” as being here legally, because if our immigration laws were enforced, they wouldn’t be here giving birth. Even a tourist visa would count as “under the jurisdiction”, but the “anchor baby” concept of a minor being able to sponsor immigrants is a law that can be more easily changed and has not the constitutional problems. Minors are deprived of many constitutional protections just as members of the military are. I remember classes in Basic Training (1969) where they patiently explained exactly how much of the Bill of Rights did not apply to soldiers subject to the UCMJ.

  2. Jeff Dege says:

    Ditto. Look to the census language in the Consititution – and in the 14th, for that matter: “counting the whole number of persons in each State, excluding Indians not taxed”.

    I think it was implicit in their understanding that there would be people within the boundaries of the United States who were not “subject to the jurisdiction thereof” – and that such people were not citizens, nor were their children.

  3. ZK says:

    Are not illegals immigrants “subject to the jurisdiction”? They certainly are when courts want to try them, or they are sued, etc, etc. It seems to me that this might exclude diplomats and such from birthing US citizens, but don’t see how this applies to illegals, unless either it has some esoteric meaning, or you close your eyes and really really wish it does.

  4. Bitter says:

    Now, now, Metcalfe isn’t only going after populist federal issues, he’s also keeping us safe here at home. You know, by opposing those domestic violence awareness resolutions that are a tool of the secret gay agenda to screw our children. That’s totally a Pennsylvania issue. At least, I assume it is limited to Pennsylvania since I have never heard of politicians in any other state claiming that domestic violence awareness is a way to advance the gay agenda.

  5. Sigivald says:

    Nitpick – In the case of the 14th Amendment, the issue of intent applies not to the Founders, as they were all dead by then, but the framers of the Amendment.

    ZK: The idea that “subject to the jurisdiction thereof” has some meaning beyond “not a diplomat and thus immune to laws” would seem to be the key.

    I haven’t done the research to know if that’s plausible (let alone true), but it could well be a legal term of art not identical to the commonplace interpretation of the words.

    (Such as “malice” in the legal sense, which does not mean quite what it does in normal language.)

  6. RRRoark says:

    OK, some notes about the framing of the 14th:

    “The jurisdiction requirement was added to the original draft of the Fourteenth Amendment by the Senate after a lengthy and acrimonious debate. In fact, Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Sen. Howard noted that the jurisdiction requirement is “simply declaratory of what I regard as the law of the land already.” Sen. Howard said that “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.”

    Sen. Reverdy Johnson of Maryland, who was the only Democrat to participate in the Senate debate, was even more explicit about the meaning of the jurisdiction requirement: “[A]ll persons born in the United States and not subject to some foreign Power — for that, no doubt, is the meaning of the committee who have brought the matter before — shall be considered as citizens of the United States.” Sen. Johnson’s reading of the jurisdiction requirement also is consistent with our naturalization requirements. Since at least 1795, federal laws governing naturalization have required aliens to renounce all allegiance to any foreign power and to support the U.S. Constitution. Such allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.”

    Key phrases that are clues to intent:
    “to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship”
    “persons born in the United States and not subject to some foreign Power”

  7. Mobo says:

    Jacob Howard was thought of as a “gassbag” by many of his peers. I’m not so sure he can be relied on as the definitive source to show us the original intent of the fourteenth amendment.

    If I remember correctly, he was the one who claimed that the 14th amendment was to be understood as applying the first eight amendments to the states. Again, if my memory is correct, Binghan and Sumner (and Stevens, I think) claimed that the amendment would cover the exact same ground as the 1866 civil rights bill, and nothing more.

    This is all covered in Raoul Berger’s Government by Judiciary. I have yet to read the counterpoint to this book by Michael Curtis (I forget the name). Berger doesn’t get into the birthright citizenship question much (if at all), but it’s an excellent read and will probably piss you off at least as much as it did me.

  8. RRRoark says:

    I think Johnson’s “not subject to a foreign Power” adds credence to the authors intending only to grant citizenship to persons born here who were “subject to the jurisdiction” of the United States with that phrase meaning “and not subject to any foreign Power,” as included in the Civil Rights Act of 1866, which these same Senators had earlier drafted. And by “subject to the jurisdiction,” they meant “subject to the jurisdiction of the United States in every sense,” and “not owing allegiance to anybody else.”

  9. Mike From Philly says:

    Remember that Blacks were not considered citizens when this amendment was ratified. That language was intended to protect Black rights, not illegals or even the children of lawful immigrants.

  10. Mezzoduomo says:

    Are we really going to frame this with all sorts of hypocrisy? What part of ”all persons born in the United States” do you not understand? If you want to say ‘the founders never envisioned millions of Mexicans coming here just to give birth’, then you open yourself up to similar arguments re the 2nd, like ‘the founders never imagined we’d have 15 round magazines and Beretta semi-automatic pistols loaded with cop-killer rounds”. Let’s have a little integrity here. If you want everyone to pay attention to the actual words in the 2nd, you’d better do the same with the 14th.

  11. Mobo says:

    Mezzo, that’s kinda the whole point of this thread. Textualists give the most weight to the actual wording, while originalists assign more importance to figuring out how those words came to be chosen and how they were understood at that time.

    Phrases such as “well regulated” mean something almost
    entirely different today than they did in 1789. This is why I think that original intent should be given more weight than than the wording of the text. James Madison agreed ( of course, there’s a Madison quote for EVERY occaison….).

    I happen to think that nothing good can come from this effort to whip white people into a frenzy over immigration, but this is a separate matter. We should look for the truth, wherever it may lead, and figure out how to punt from there.

  12. Mike From Philly says:

    The part …”and subject to the jurisdiction thereof” is the important part. Illegals are not subject to the jurisdiction. They do not have permission to be here in the US. They are foreign invaders, a pseudo conquering army.

    When this amendment was passed, the southern states tried all sorts of ways to deny Blacks rights …. Dred Scott, Black Codes, Jim Crow, etc. They were subject to the jurisdiction of the Army and Courts.

  13. Amiable Dorsai says:

    Mike, as ZK wrote, illegals are most definitely “subject to the jurisdiction thereof;” we put them in jail all the time.

    There’s a pretty good discussion of this at The Volokh Conspiracy: http://volokh.com/2011/01/06/jim-ho-on-the-fourteenth-amendment-and-children-of-illegal-and-legal-aliens/

    Eugene Volokh contributed a lot of the scholarship that led to victory in Heller and McDonald. I put a lot of weight on anything he has to say.

  14. Alpheus says:

    I, for one, like the concept of “citizenship by birth”: If you are born here–something of which you have no control over–you become a citizen. There’s no confusion as to what happens to you when you grow up, apply for college, and try to live your life, where you’ve lived your entire life!

    Heck, I like the idea of extending citizenship to those who were dragged here as five-year-olds, having no idea what was happening.

    But I also feel very strongly that all this would be a non-issue, if we were to just get rid of our welfare state–starting with education, but including WIC, other welfare for the poor, Social Security, Medicare, and Medicaid–because a huge host of problems with illegal immigration are caused by immigrants who come here for the welfare benefits.

    Indeed, anyone crying for welfare–citizen or not–is probably the biggest threat to America today!

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