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.
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.”
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.”
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.