TRUMP DENIED EFFECTIVE ASSISTANCE of COUNSEL

©2015 jbjd

When it comes to his ‘idea’ that one way to begin fixing current immigration problems is to re-define ‘birthright citizenship’; Republican Presidential candidate Donald Trump proves, once again, he has absolutely no idea what he is talking about.

Donald Trump said Tuesday that he doesn’t think people born in the U.S. to undocumented immigrants are American citizens.

“I don’t think they have American citizenship and if you speak to some very, very good lawyers — and I know some will disagree — but many of them agree with me and you’re going to find they do not have American citizenship.

Donald Trump: Birthright babies not citizens.

I am guessing that one of those “very, very good lawyers” he refers to, is Ann Coulter, who hypes the same drivel in her book Adios, America and, at least when it comes to Trump’s forays into immigration ‘policy,’ is an unabashed fan. First, a little background.

On Monday, August 17, responding to questions about talk of ending ‘birthright citizenship,’ Republican Presidential candidate Carly Fiorina told NBC’s Kelly O’Donnell

 “It would take passing a constitutional amendment to get that changed. It’s part of our 14th Amendment. So honestly, I think we should put all of our energies, all of our political will into finally getting the border secured and fixing the legal immigration.”

http://www.nbcnews.com/politics/2016-election/where-gop-2016-candidates-stand-birthright-citizenship-n411946

Ms. Coulter was interviewed by syndicated radio host Mike Gallagher the next day:

“I have turned against her [Carly Fiorina) as of yesterday with the hot, hot hate of a 1000 suns.

…yesterday among the attacks I saw on the magnificent Donald Trump immigration plan was, you know, everybody wants to get rid of anchor babies.

You can read the section of my book. It’s very short. It’s not from the 14th Amendment.

The 14th Amendment, you’ll all remember, came after the Civil War, remember what the Civil War was about? That was freeing the slaves. It wasn’t about allowing illegal aliens to run across the border, drop a baby and say, “Ha ha, you missed me, I’m a citizen now.”

Do you think the framers of the 14th Amendment, that’s what they were hoping to do? She [again referencing Ms. Fiorina] said both she and Chris Christie, I saw, saying on TV yesterday, “Well, of course you’d need a Constitutional amendment to do that, that’s crazy.”

http://www.realclearpolitics.com/video/2015/08/18/coulter_on_carly_fiorina_i_have_turned_against_her_with_the_hot_hot_hate_of_a_thousand_suns-comments.html

And I would bet Mr. Trump paid dearly for Ms. Coulter’s advice. But neither knows what he or she is talking about.

As I have tried to explain – see, for example, SENSE and non-SENSE, AGAIN with the 14th AMENDMENT!, jbjd’s FRENEMIES LIST – the 14th Amendment to the Constitution did not confer U.S. citizenship on anyone; under the Constitution, only Congress may define what constitutes ‘citizenship’ (Art. I, sec. 8. Clause 4). Thus, any attempt to define who is a citizen, through the Amendment process first would have to specifically modify that delineated power in Art. I

Rather, the 14th Amendment, implicitly assuming the fact that slaves, whether natural born or naturalized, were citizens of the U.S., merely re-stated that fact. For effect, it also clarified that, by definition being a citizen of the U.S. also means, being a citizen of the state in which one resides. (Prior to the 14th Amendment, some states and the District of Columbia denied the status of ‘citizenship’ to slaves.) But the sole purpose of mentioning the citizenship status of natural born and naturalized people was to serve as a preamble to the heart of the Amendment: all citizens of the U.S. (and therefore, the states and D.C.) are entitled to equal protection and due process.

In so doing, the 14th Amendment now extended the Due Process entitlement already found in the 5th Amendment, which had applied to the federal government; to the states and D.C. https://www.law.cornell.edu/constitution/amendmentxiv Thus, inasmuch as Congress defines all people born in the U.S. as citizens under the law; then, any newly initiated program, whether Executive or Legislative in origin, which calls for the involuntary deportation of these citizens requires due process. This means, even if the ‘plan’ floated by Mr. Trump was implemented, the Judicial branch would be inundated with and drowned to a halt by the petitions of citizens facing such deportation.

(There’s also this: Art. I, sections 9 and 10 of the Constitution already prohibit Congress from passing ex post facto laws, that is, laws which criminalize conduct after the fact. Thus, criminalizing being in this country, having been born here, would first require amending the Constitution so as to eliminate the prohibition against ex post fact laws.)

So much for taking ‘legal’ advice on immigration, from someone with a vested financial interest in selling her books.

UPDATED 08.19.15: Here is an interesting treatise on the subject, produced with our taxpayer money by the Congressional Research Service (“CRS”). http://fpc.state.gov/documents/organization/147254.pdf An interesting finding is that, the common law definition of the disputed terms, as incorporated into the 14th Amendment, prevailed until ‘codified’ in 1898, in U.S. v. Wong Kim Ark. That is, whoever is born here – with limited exceptions such as children of diplomats – and subject to the jurisdiction thereof – this excluded native Americans not ‘citizenized’ by treaties with the U.S. – is a citizen of the U.S. and the state of residence. Subsequent laws extended citizenship to all Indian tribes, regardless of treaty status. ADMINISTRATOR

…………………………………………………………………………………………………………………………………………………………….

My mind is a terrible thing to waste.

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13 Responses to TRUMP DENIED EFFECTIVE ASSISTANCE of COUNSEL

  1. Pete says:

    Trump is “mostly” correct. thr key is that there are two parts to jus soil, the first is being born on US soil. The second, and just as important, is that the person be “under the jurisdiction” of the United Stares. A criminal, who crossed the border illegally and without government consent, and had no community (business or taxes) is NOT under the jurisdiction of the U.S. According to the SC discussion in Kim Wong. Therefore, MOST anchor babies should not be US citizens. That being said, who is going to sort through them all?

    • jbjd says:

      Pete: When considering what is meant by the word “citizen,” one must look, first, to the plain language of the U.S. Code (at that time) and then, to (appellate) case law on point, defining what “citizen” means. The 14th Amendment did not define who is a citizen. The words “natural born” and “naturalized” and “subject to the jurisdiction thereof” appearing therein did not originate there. Rather, the drafters used these words only so as to establish that all citizens of the U.S. uniformly now understood to be citizens, had rights to due process and equal protection. ADMINISTRATOR

      • I think you should read and re-read the 1790 & 1795 Acts and then revise and amend YOUR blog-post and comments………

        also, here is some more food for thought……..

        http://www.14th-amendment.com/Miscellaneous/Articles/Teastimony_on_H.R.%207_(June_25,_1997)/Rep._Edward_J._%20Erler_Statement.pdf

        • jbjd says:

          Steven Lee Craig: I glanced at the document in the link you provided, which contains the opinion of a political scientist as to what is a citizen. But this means nothing insofar as it has no precedential effect. Laws, and court cases tell us what words mean, Constitutionally speaking. In 1898, the SCOTUS defined for the first time, in writing, what “citizen” means, in the Wong decision; this became, what it means. Congress can always codify a new definition, which will be met with challenges as to unConstitutionality, citing the 14th Amendment. But remember, the 14th Amendment did not define citizen; it merely wrote in words what was already the common law nomenclature of citizen – “natural born,” “naturalized,” “subject to the jurisdiction thereof” – for the express purpose of pronouncing that from now on, all citizens are entitled to due process and equal protection of the laws by both the federal and state governments. ADMINISTRATOR P.S. The Naturalization Laws you mention – next time, supply links, please – only involve applying for U.S. citizenship, as aliens.

          • Well, you are INCORRECT in both aspects you responded to.

            WKA involved PARENTS who were LEGALLY present in the U.S. under authority of the Burlingame Treaty, which, in its Article VI proscribed naturalization by the parents, ergo they REMAINED under the jurisdiction of the TREATY, which was the Supreme Law of the Land under the Article VI Supremacy Clause, insofar as the Ark’s were concerned.

            But if you want to cling to the WKA go ahead, that only informs me of your intellectual honesty, or rather, lack thereof.

            As for the 1790 & 1795 Acts link;

            http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html

            Where again you are incorrect in your ability to construe statutory construction.

            I will not go through them point by point but will simply ask you two (2) questions in hopes of kick-starting your intellectual curiosity;

            1) Does A2S1C5 require both the EXISTENCE of identifiable U.S. natural born Citizens that are distinct from any and all other forms of U.S. Citizenship that may be provided for under the Congress’s plenary powers over the subject…???

            2) Were there U.S. natural born Citizens being born any where other than BEYOND the limits of the U.S. between March of 1790 and January 1795 and if so was the “right of citizenship” attached to the parent fathers U.S. Citizenship the statutory proof of the child’s citizenship status ….???

          • jbjd says:

            Steven Lee Craig: Until 1898, the common law understanding of the word “citizen” was all we had to go by, inasmuch as neither federal statutory law nor case law memorialized its meaning, in writing. That is, if you are born in the U.S. or naturalized according to the steps spelled out in federal law then, you are a citizen of the U.S., with the exception of members of another sovereign nation, like the Indian nations; or the child of a diplomat, meaning, you are not “subject to the jurisdiction thereof.” In other words, the U.S. cannot tell you what to do. When the 14th Amendment was written to ensure all citizens due process and equal protection, it spelled out this common law definition of citizen, assuming everyone understood what that meant. Thirty years later, in Wong, the court acknowledged, it was time to formalize a definition, which it accomplished by ‘formalizing’ the history of the common law which led to the same definition held up to that time. Congress has followed suit by defining citizen consistent with the common law, in several statutory laws and revisions, since. ADMINISTRATOR

          • The COTUS gives the Constitutional meaning of a U.S. Citizen at Article V Section II:

            ” … The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. …”

            THIS DOES NOT DEFINE, WHO IS A CITIZEN, BUT ONLY SETS ALL CITIZENS EQUAL

            Article I section 8 Clause 4 gives the Plenary Power to determine the “who, where, why, what’s and how’s of U.S. Citizenship;

            ” … The Congress shall have power … To establish a uniform rule of naturalization, … throughout the United States;”

            THIS DOES NOT MEAN, ABSENT USE OF SUCH POWER TO SPECIFICALLY DEFINE THAT ANYONE BORN HERE IS A CITIZEN, NO SUCH COMMON LAW DEFINITION EXISTED

            The ESTABLISHED uniform Rule of (U.S. Citizenship {implicit}) naturalization provides that;

            ” … Once a person is a U.S. Citizen, (only the founding generation at that time), then so too are their children, at birth or otherwise, anywhere in the world …” (slc)

            subject to the proviso therein and any subsequent proviso that may be made.

            From the ACT:

            (1) And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States.

            (2) And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:

            (3) Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:

            (my numbering)

            http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html

            THIS “NATURALIZATION” LAW APPLIES, AS A THRESHOLD MATTER, TO PEOPLE WHO ARE NATURALIZED, THAT IS, WHO WERE NOT BORN HERE

            But go on and suck up to Justice penumbra zone Gray and his BULLSHIT Opinion.

            Hail Britannia

          • jbjd says:

            Steven Lee Craig: I answered your remarks within your comment, in bold. In short, you are both misreading and misapplying the law. ADMINISTRATOR

          • Read the 1790 et seq Acts, they define WHO may be U.S. Citizens, i.e., FREE WHITE MEN. and not otherwise, up to the 14th.

            It’s true that some STATES provided for STATE Citizenship for some persons other than WHITES, but THAT did NOT make those persons U.S. Citizens.

            The 14th Amendment was DECLARATORY of the 1866 Civil Rights Act and the 13th Amendment s reiteration of it, that race and national origin no longer prohibited those other than WHITES from becoming U.S. Citizens.

            NO ONE was BORN CITIZEN without a US. Citizen father prior to the POLICY Citizenship by NATURALIZATION at birth incorrectly provided by the misinterpretations of the 14th and or the passage of the 1922 Cable Act.

            But look, its obvious you have no intent to be intellectually honest on this subject given that you REQUIRE that A1S8C4 be limited to applying to aliens in a manner that would be inconsistent with the Clauses Title “to establish an uniform Rule of naturalization at a time when the ONLY U.S. Citizens were those that were COLLECTIVELY NATURALIZED by the Ratification of the COTUS.

            But I’m sure that FACT is over your head too…. BTY, F*** Common Law, it ONLY comes into play where the COTUS is SILENT, like Probate for one, and who were the State Citizens up to the 14th, when all Citizenship was Nationalized ……. another point over your head..

          • jbjd says:

            Steven Lee Craig: Congress passed the 14th Amendment, before it was ratified by the requisitee states. Think of that process as Congress exercising their power to define who is a citizen; by drafting and passing a Constitutional Amendment memorializing the common law standard, thus making that standard the law of the land through Constitutional Amendment rather than statute. (Do you suppose if that’s not what they intended, then that same Congress wouldn’t have immediately remedied the ‘common’ ‘misunderstanding’ through appropriate legislation? ADMINISTRATOR

          • You are making assumptions NOT in the record…….. and this statement is the core of your error………” by drafting and passing a Constitutional Amendment memorializing the common law standard,”

            The ESTABLISHED UNIFORM RULE was the STANDARD of the CONGRESS.

          • jbjd says:

            Steven Lee Craig: Even a cursory reading of my work reveals, I tend to discount some opinions as to the meaning of words within laws, whether pronounced by thinkers with stellar pedigrees, or however well-reasoned, inasmuch as the only interpretation binding on the country, is provided by the (appellate federal) court. And if Congress is vexed by an opinion of that court, it can choose to exercise its power to generate legislation consistent with its beliefs. ADMINISTRATOR

          • Look, you can NOT interpret an Opinion and judge its correctness without 1st looking at the ORIGINAL EXPRESSIONS of the Laws on the subject.

            1) Prior to the ratification there were NO Constitutional U.S. Citizens, there were only State Citizens under the Articles of Confederation.<period.

            Stop

            2) The Preamble set the parameters for U.S. Citizenship, (pertinent part);

            We the people of the United States, in order to … secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

            ….to ourselves and our posterity ….

            Stop

            3) The Ratification of the COTUS "collectively naturalized" all of the existing State Citizens as U.S. Citizens, and NO OTHERS, by the effects and requirements of the COTUS, lest it become without effect.

            Stop

            4) AiS8C4 REQUIRED the Congress to establish an uniform Rule of U.S. Citizenship by naturalization.

            It did not say by Jus Soli or Jus Sanguinis or any bastardized combination thereof, nor did it limit the Congress in any way as to how the individual words of the provision would be interpreted.

            An uniform Rule is by definition analogous to a DOCTRINE and "naturalization" is in the 1st instant a noun that implies the POLITICAL DETERMINATIONS of who, when, where, why & how a person is conformed to the nature of an existing citizen.

            Stop

            5) A2S1C5 REQUIRES that U.S. natural born Citizens MUST exist in order for the Office of POTUS to be LEGALLY occupied. The exclusionary prerequisite imperative requirement provision also REQUIRES that (an) identifiable distinctions(s) must exist between "citizens' and 'natural born citizens', lest certainty of legal occupation of the Office of POTUS is in doubt.

            Stop

            6) Between the Ratification and collective naturalization of the Founding generation and March of 1790 there was debates on the mandate of A1S8C4 by the Congress which the EXPRESSED the DOCTRINE that fulfilled the Constitutional REQUIREMENTS as noted that may be characterized as saying;

            " … Once a person is a U.S. Citizen then so too are their children, at birth or otherwise, anywhere in the world …" (slc)

            … as provided for in the three (3) pertinent provisions of the Act;

            (1) And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States.

            (2) And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:

            (3) Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:

            Stop

            7) Note the term of words "right of citizenship", FROM THE HANDS OF THE 1st CONGRESS.

            1st EXPRESSION of U.S. Laws on the subject of U.S. Citizenship.

            Learn the Laws and obey them.

            Stop

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