Noah Feldman writes in Bloomberg today that the argument Graham is making is "pretty clearly wrong":https://www.bloomberg.com/opinion/articles/2018-10-30/birthright-citizenship-puts-trump-judges-in-a-bind …
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It's obviously referring to children of people with diplomatic immunity.
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At the time it was probably referring to children of Native American tribes that were at war with the U.S.
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That too, but diplomats was specifically cited as an example by drafters of the 14th.
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Only if the are residents. The decision does not apply to tourists
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Wrong. The amendment — you may want to, ah, read it — states only that the child has to be subject to the jurisdiction of the US.
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"subject to jurisdiction", as per the Supreme Court, means subject to U.S. laws. Hence, illegal immigrants are subject to U.S. jurisdiction and their children are therefore citizens.
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Yes. The decision also cited residence as key to the case. So this may not cover tourists
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I'd also note that according to Mueller, several Russians in Russia are subject to our election laws, and thus our jurisdiction. Jurisdiction in the context of the 14th refers to who the person answers to: our government or another.
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The 1866 law governing citizenship states that anyone born here who is not subject to a foreign power is a citizen. A tourist is a subject of a foreign power. As are foreign students, temporary guest workers, and temporary refugees
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Meanwhile, US citizens remain subject to US jurisdiction when traveling abroad. The same is true of most foreigners, they remain legally subjects of their home countries. They may owe taxes to their home countries as well as military service.
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Now granted, the currently accepted interpretation of the clause is entirely reasonable. And I predict the Supreme Court would uphold that interpretation if they had to rule on it. But I also think there is room for reasonable limitations for those without residence here
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The Supreme Court could, of course, pull a ruling out of its ass overturning Wong Kim Ark without also giving immigrants the right to commit crimes. I think it's unlikely there are 5 votes for that, but if there are it won't matter what people say on Twitter!
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The Supreme Court is, and has always been a political body. 100 years ago the Supreme Court believed that the 14th amendment didn't protect civil rights for black people but *did* make laws against child labor unconstitutional.
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I guess their new position is UNLOCK THEM UP.
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The IRS definitely thinks the law applies to me despite my being undocumented. Homies been taxing me since I was 16. I'm sure my kids will be taxed too.
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That phrase, "subject to the jurisdiction," didn't even need "interpretation" in Wong Kim Ark. "Subject to US law" is just what those words literally mean.
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It’s simpler than all that. The 14A doesn’t mention the word “parents,” so a parent’s status can’t possibly affect the citizenship of a child born in the United States. Whatever the phrase “subject to the jurisdiction” means, it must apply to the child, not her parents.
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I agree with that although I am not sure if there was even a distinction between legal and illegal (documented/undocumented) immigrants back in the 1800s. I think everyone probable was just an immigrant.
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