Speaker 1: What's going on. Thank you so much for listening to
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your support. So we're going over the birthright citizenship issue. Okay,
last hour, I kind of gave you the status of
like the lawsuits, who's filed them, the standing issue, and
that sort of thing. Now we're going to go into
sort of the meat of the matter and the legal disagreements,
the arguments from both sides, so you can be fully
informed when listening to idiots around your lunch table or
dinner table. So well, okay they may not be. They
just may not know. Okay, they just may not know.
So look, and I recognize that people are going to
demagogue the issue. They're going to use all sorts of
emotional plays in order to get you to shut up
for simply discussing these things. And by the way just
as a as a tactic, this is a helpful one
when debating or when I say debate or arguing, I
don't mean like in a nasty way, just a discussion.
When you have a discussion and you're talking with people
about this stuff, reinforce with them that, like, I may
not agree with this, but here is the other side
of this argument, right, So preface it by saying, like,
I'm not advocating this, I'm just examining it, because all
too often when people are examining and testing theories and
arguments and such, the other person will hear you say
something and think that this is what you believe in,
and you may not actually believe in all of the
components of the argument that you have just laid out.
You're simply just testing, you're examining, you're thinking, you're thinking.
I know it's a bit of a lost art nowadays,
but when you're thinking these things through, it's imperative that
you try to see the different angles and weigh the
different arguments. So preface it by saying, you know, I'm
not advocating this, but here's the you know, here's this
other argument. So how do we address this argument? Does
it have merit right? Does this other argument make some
good points? Does it not? What are the flaws in it?
What are its strengths? Okay, so last hour I mentioned
a Supreme Court case and by the way, thank you
to I don't remember who it was who sent me.
The sent me the case name, which a couple of
days ago, like last week or something. But there is
a presidential not presidential, but precedent presidential case, the Wang
kim Arc case. That's the guy's name, Wang kim Arc,
and this individual was born in San Francisco, his parents
were Chinese citizens. At age twenty one, Wog takes a
trip to China to visit his parents. When he comes
back to the United States, he has denied entry on
the grounds that he is not a US citizen. This
case made its way all the way to the Supreme Court,
and the court ruled in a six to two decision
in favor of Wang kim Arc, asserting that he is
a citizen because he was born in San Francisco, even
though his parents were Chinese citizens, because he was born
in the US and his parents were not quote employed
in any diplomatic or official capacity under the Emperor of China,
the citizenship clause of the fourteenth Amendment automatically made him
a US citizen. This case highlighted a disagreement between the
justices over the precise meaning of the key phrase in
the citizenship clause of the fourteenth Amendment, which is subject
to the jurisdiction thereof right, you've heard me mention that
before this is the key phrase. So, writing for the majority,
the six to two majority, Justice Horace Gray, here is
the rationale. Okay, But here was this? Do I need
to adopt like a nineteenth century accenter of this the
fourteenth to firms the age was that have they talked
in the I don't know, I'll just read it. The
Fourteenth Amendment affirms the ancient and fundamental rule of citizenship
by birth within the territory, in the allegiance and under
the protection of the country, including all children here born
of resident aliens, with the exceptions or qualifications as old
as the rule itself of children of foreign sovereigns or
their ministers, or born on foreign public ships, or of
enemies within and during hostile occupation of part of our territory,
and with the single additional exception of children of members
of the Indian tribes owing direct allegiance to their several tribes.
So they gave a carve out. He was giving a
karva there, Like, we're not talking about those Indians. It
was the nineteenth century after all, So no, no, no, no,
not them. The amendment, in clear words and in manifest intent,
includes the children were born within the territory of the
United States of all other persons of whatever race or
color domiciled within the US. Every citizen or subject of
another country, while domiciled here, is within the allegiance and
the protection and consequently subject to the jurisdiction of the
United States. And if you think back like, oh, I
don't know. So let's say after the formation of the country.
So let's say, like you know, early eighteen hundreds, eight
to eighteen five, let's say people who came over And
I think this would have, you know, predated all of
the mass immigration from Europe at the time, right with
the Potato famine and all of that stuff, right Ellis
Island and everything. So I want to say, like, back then,
if people came into the country, you know, like they
sail on over and they they land someplace in like Florida,
and they just like, get in some wagons and head
west and then they have some kids along the trail.
Maybe they make it to Oregon, I don't know. Maybe
they die of dysentery. I don't know, but they have
their babies. They set up a homestead and a little
village and now they've built a town and then it
comes to city whatever. So would those kids be citizens?
Speaker 2: Right?
Speaker 1: If the people that came over are on that boat
from wherever country they came from, it doesn't matter to me.
But if they came over it landed in Florida, got
in some wagons, proceeded west, carved out a piece of
land for themselves, and then you know, a bunch of
other people are with them, and they set up a
town and whatever, and then they start having kids. Are
those kids citizens? Right? And at the time it makes
sense where the US is like manifest destiny, we want
to expand and all of this. So they would count
them as citizens. They would say they were a Marrias, right,
I assume. But I wasn't alive back then, so I
don't know. But then they're not citizens? What about their kids? Right?
Speaker 2: Like?
Speaker 1: What if the people of the town the one generation,
two generations, three generations, are all of them not citizens
because it's not passed through the lineage, right or the soil.
So which is it? So this is the question that
the Supreme Court was seeking to address here, saying no, no,
if they're born here, they're citizens, except the Indians, except
the Native Americans. They again, or they gave some other
exceptions here too, children of foreign sovereigns, so leaders or
their ministers. So if you have like ambassadors that are
from another country they have kids here, that doesn't give
you citizenship. You're just an ambassador here. Let's not get crazy.
And then if there was like some occupied territory, if
they lost some territory to you know, let's say the
French or something the friends. No, okay, fine, that's a
cheap shot. Sometimes I take it. Trump administration lawyers are
likely to argue that Wang Kim r arc that that
decision and precedent applied to specifically and only resident aliens
meaning lawful permanent residents. Resident aliens lawful permanent residents, lawful
meaning they came here correctly, followed the laws, right, they
reside here permanently, but they have the government's blessing to
be here. Hence the reason why Wang Kim arc was
a citizen because apparently his parents were when he was
born at least lawful permanent residents. They were not illegal immigrants.
So if you are an illegal immigrant, this is the test.
You're not supposed to be here. You are not lawful.
But there's another Supreme Court case from nineteen eighty two
that's Plyiler v. Do here's a great idea. How about
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all of the information you will need to sound informed
when you discuss the birthright citizenship issue, which is now
going to wind its way through the courts after about
two dozen Blue states sued the federal government over Trump's
executive order to upend the birthright citizenship that has been
part of our our society for over one hundred years.
I mentioned the first case that was the Wong kim
Ark case. There's another Supreme Court case though, from nineteen
eighty two. By the way, if you want to read
more about this, I'm giving you sort of the highlights
out of a piece at National Review by Jim Garretty.
Can birthrights citizenship be repealed by executive order? Spoiler no,
But anyway, the Supreme Court case from nineteen eighty two
was Pliler versus Doe, and the Court ruled in that
case five to four, So a very split decision there,
five to four, and they said, whatever his status under
the immigration laws, an alien is a person in any
ordinary sense of that term, and therefore were afforded Fourteenth
Amendment protections. Okay. Justice William Brennan, writing for the majority, said,
use of the phrase within its jurisdiction, that's from the Constitution,
from within its jurisdiction, confirms the understanding that the Fourteenth
Amendments protection extends to anyone citizen or stranger who is
subject to the laws of a state and reaches into
every corner of a state's territory. Today's Supreme Court garrity rights.
Today's Supreme Court might see the matter differently, though it's
also possible that the Court might determine that while the
definition of citizenship can be legislatively changed to exclude the
children of illegal immigrants, it cannot be unilaterally redefined by
the executive branch. And that's where I think I am
on this at the moment. I am open to be persuaded,
but right now seems to me like if you want
the law changed. I know I'm going to be a
little bit consistent here, but if you want to change law,
you have to change the law. It sounds weird, but
that's how. There's a whole process for changing laws. In fact,
we have people and we elect them, and then we
pay them to go to another city and they all
meet together and we call them law makers, and they
make laws, and then the president has to sign it,
and then once that happens, then it's a law. See
that's how that would work. So this is why I
am not a fan of in general executive orders. I
don't like them very much. I can agree with what
an executive order attempts to do, but I don't like
the mechanism because it gets us closer and closer to
having a king. I don't want a king. I don't
need a king. I don't need a sovereign. I don't
a mommy or a daddy telling me this is how
we're going to run now for four years, while I'm
in charge, and if you like it, then put me
back in and we'll stay on this path for another
four years. Oh but if I lose, then the next
person who comes in, they're going to completely rewrite all
of the stuff that I did. Oh and they're also
going to write a bunch of stuff that you don't like,
and that's not going to have to go through a
legislative process. Once again, I understand this may be a
bit confusing to some people. I am being consistent on this, Okay.
So next up Andy McCarthy, also National Review. He talks
about section fourteen oh one of the Immigration and Naturalization Law.
This is Title eight under the US Code. This is
also going to be part of the of the debate.
So you have the Plilo case, you have the Wong case,
and you've got section fourteen oh one, and it says
that included among US citizen is any person born in
the United States and subject to the jurisdiction thereof right.
That's the fourteenth Amendment. But that means the issue is
not just what jurisdiction was understood to mean and back
in eighteen sixty eight when the Fourteenth Amendment was adopted,
but what it meant in nineteen fifty two, when this
statute section fourteen oh one, when the statute defining citizenship
wasn't acted. So you can't only look at, well, what
do they mean by the jurisdiction thereof you can't only
look at what the original writers of the of the
Amendment after the Civil War meant by jurisdiction. You also
have to then look at the law that was passed
by Congress in nineteen fifty two, and you have to say, well,
what did they mean by the jurisdiction because they cite
it too, and it seems pretty clear. All right, I
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over the debate about the birthright citizenship. This legal argument
is now going to be tried through the courts, and
I'm fine with that. That's what a democracy does, That's
what self government is about. We hear these arguments, we
debate the arguments, right and if you don't like this,
by the way, then it kind of tells me that
you don't actually believe in self government because this is
what democracy looks like. Tell me what democracy looks again.
That's the anti fit chance that they usually do well,
and to be fair, they occupy Wall Street chance, the
anti Trump chants like all of those marchers. They always
do that. Chance. So you have the Supreme Court case,
the original one, the Wong case eighteen ninety eight. Then
you've got a case later on in Pliler versus Dough.
Then you have the case or sorry, the law that
was written Immigration Naturalization Laws, section fourteen oh one, that
was written nineteen fifty two, where they directly quote the
Fourteenth Amendments person born in the United States and subject
to the jurisdiction thereof. You'd have to figure out what
they meant by that. They were quoting the Fourteenth Amendment,
Congress's codification of that language, and it did not need
to include that in its law, but they did. That
could be seen, could be argued that's an expression of
Congress's intent to exercise its constitutional authority to set the
terms of citizenship. Right. They're like, we see this in
the Constitution, we agree with it, we're keeping it, we're
putting it into the law. In a recent edition of
the publication National Affairs, there were two scholars of the
Constitution who took up this issue and debated it. They
came to the same conclusion that Andy McCarthy came to
over at national review, which is that the Constitution does
not decisively resolve the question and actually leaves it over
into Congress, not the president acting on his own. Though
right birthright citizenship is a legitimate political and policy question,
and it is a hard one, but that does not
make it a question that is open to resolution by
executive action. And once again, this is a problem that
we have descended to where we expect the president to
write law, no Congress. Does that add it all up.
Jim Garretty says, this executive order looks like it has
a steep uphill climb in the federal court system. Now.
Ryan Williams over at unheard dot com makes the case
for ending birthright citizenship and doing it this way, although
I would point out that even he does acknowledge that
it's going to be an uphill battle. He said, the
phrase at the issue at the center of this issue
is subject to the jurisdiction thereof, known as the jurisdiction clause.
Proponents of birth right they maintain that the phrase merely
means subject to the laws and the courts of the US. Yet,
the debates over the eighteen sixty six Civil Rights Act,
the legislation that led to the Fourteenth Amendment also to
the principles of the American Founding suggest a different interpretation.
In eighteen sixty six, the Act, the Civil Rights Act,
was meant to secure the full benefits of citizenship for
recently freed slaves and their descendants, and they were all
black citizens for that matter. The laws proponents were determined
to convert it from legislation to constitutional text so it
would be harder to change by future congresses.
Speaker 2: Right.
Speaker 1: That prompted the Fourteenth Amendment. Okay, So you can actually
look at the legislative history of eighteen sixty six Civil
Rights Act to inform us of what they meant by
the Fourteenth Amendment language. The eighteen sixty six legislation said,
quote all persons born in the United States and not
subject to any foreign power, excluding Indians. Not text. It's
also in that one too, are hereby declared to be
citizens of the United States. All persons born in the
US and not subject to any foreign power. Okay. A
few months later, Fourteenth Amendment gets debated. The floor manager,
Senator Jacob Howard described it as quote simply declaratory of
what I regard as the law of the land already,
namely that every person born within the limits of the
United States and subject to their jurisdiction, is, by virtue
of natural law and national law, a citizen of the US.
This will not, of course, include persons born in the
US who are foreigners, aliens who belong to the families
of ambassadors or foreign ministers by the law of the land. Already,
when Howard said that, he meant the recently past eighteen
sixty six Civil Rights Act. So in such language from
some of the Fourteenth Amendment's chief proponents, we can discern
the outlines of an argument that the jurisdiction clause meant
more than merely being subject to the law and courts
on US soil. It had to do with a fundamental
tenet of citizenship, which is loyalty or allegiance. He then
talks about the Wang Kim arc case, talks about the
sixty two decision and Horace Gray, who wrote the majority
opinion that I read portions of and these concepts of
just soli or jus senguin meaning right of soil jewe
soli right of soil or jus seguin, which is right
of blood, and he says it's neither since the common
law mandated birthright citizens the child was a citizen under
the Fourteenth Amendment. According to that ruling, the case remains
the controlling precedent for the maximalist position on birthright citizenship,
and it is cited by sympathetic judges and law professors
on both sides of the isle. But if you read
the dissent in that case, written by Chief Justice Melville Fuller,
he offers an interpretation of the Fourteenth Amendment citizenship clause
that is more consonant with American principles of just government.
Fuller argued that the common law couldn't be the controlling
authority because, in separating from the British Crown as America did,
the American colonists had elevated the principles of the Declaration
of Independence over the common law. The common law of
England contemplated subjects owing perpetual allegiance rather than citizens of
a government based on consent, and so Ryan Williams argued
is that Fuller was right in his descent. The common
law didn't come up at all during any of the
debates in the Fourteenth Amendment. The people that passed the
Fourteenth Amendment believed that the principles of the Declaration of
Independence would control and where necessary, overrule, the common law
of England. If human equality is a fact of nature,
Nature's law, natural law, human equality, then nobody may rule
another without their consent, and everybody ought to enjoy their
liberties and the pursuit of happiness alike. The existence of slavery,
the ensuing crisis brought on by the conflicts between these
principles and American practice, and the subsequent Civil War are
the historical context for the fourteenth Amendment, along with the
thirteenth and fifteenth. American citizenship, defined constitutionally for the first
time in the eighteen sixties, was never based in blood,
I just sanguine. Never based in blood, but it was
never based in juice solely in the soil either. American
citizenship was based on consent. What does that mean? All right?
If you're listening to this show, you know I try
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my podcast, but it also supports ground News as they
make the media landscape more transparent. Let's head over to
the phones and chat with Bud. Hello, Bud, Hey, Hey,
I'm good. What's up?
Speaker 2: All right? Hey? I really lack this discussion. You really
are going do it in great detail. My thought was,
and I know it's a really difficult to modify a law,
especially amendment, but the modification would be a person born
in the United States is automatically a citizen as long
as at least one parent at least was already a
citizen at the time of the birth right.
Speaker 1: And so that's the and this that gets to sort
of the argument that Ryan Williams is making. It's not
quite a you know, juice sanguine in other words, you know,
the right of lineage, basically the bloodline. Yes, it is.
His argument is one of consent, because even the Wong
case was based on this belief and fact that the
parents were permanently domiciled in America at the time. Absolutely, yes,
and so that's yeah. So there is an element of
what Williams is describing as consent, and that gets to
this the argument that isn't right of soil in other words,
just because you're here you're born here, or right of lineage.
It would apply to a consent argument in that you
want to be here and so you come. But also
the other element there there has to be consent that
the host country wants you here as well and permits
you to be here right Otherwise there's only you need
both parties to consent otherwise it's not truly sensual.
Speaker 2: I agree, but I doubt that the Supreme Court will
see it that way, and the argument is not in
the law anywhere. Of course, I guess that's for the
Supreme Court you decide.
Speaker 1: Yeah, yeah, we'll see. But I appreciate the calls a
good to hear from you. All right, all right, take care. Right.
American citizenship, the argument goes, is based on consent wankim Arc.
The Wan case should be overturned, he says, and we
should have a robust national debate about citizenship and immigration
and national allegiance. Congress is well within its enforcement powers
under Section five of the fourteenth Amendment to restrict birthright
citizenship much more than it currently does. Right, So this
is the key. Like, for example, children of foreign soldiers
born on US soil have always been excluded from the
birthright citizenship in the same way that children of ambassadors
and diplomats are also. Okay, And what Williams is arguing
over it unheard even under the wrong precedent, controlling emphasis
was placed on the importance of ARC's parents being permanently
domiciled in the United States. That's what made him a
legal US citizen was that his parents were here legally,
they were here, they were allowed to be here, and
so when they had a child here, the elements of
consent are achieved. Basically, they're allowed to be here. And
now he's a citizen. He says, let's update and apply
that precedent to a world transformed by transportation technology that
has occurred in the ensuing one hundred and twenty seven years.
And by the way, like I am open to that too,
Like that is that's a pretty important part of this. Also,
these laws were written at a time when transatlantic Transpacific
travel was very difficult, right, it was hard to go
long distances like this just to have a child. And
you know, so it like nowadays, the you know, birthing
tourism has become a thing. He says. If you are
not a lawful permanent resident, any children you may have
in the United States are permanent residents with you, not
automatic citizens, right, why not apply that designation? And then
I got a message here actually hang on, let me
sus on the Twitter machine, HM or no, sorry, it
was an email Jay, He says, I was born in
Germany while my dad was in the army. Even though
I was born on a US military base, my birth
certificate was in German. When I was getting my security
clearance for my time in the Navy, I had to
renounce any claims to German citizenship. Who knew being born
somewhere would impute citizenship?
Speaker 2: Right?
Speaker 1: Yeah, So if your parents are permitted to be here,
you should. I mean it seems logical that whatever status
they have may very well apply to you, because that's
the element of the consent right that the government has
consented for you to be here. So if you are
here on a tourist visa, then your child gets a
tourist visa with you. Right, they don't get citizenship, they
get a tourist visa. They get the same status that
you do. Wouldn't that make it cleaner?
Speaker 2: Right? If?
Speaker 1: I don't know, it's a compelling argument. So now I
feel like we've got all the bases covered. I think,
you know, the legal arguments about the birthright citizenship. Now
the executive order part of this. I have not found
anybody that says that this is anything other than a
vehicle to push the issue into the courts. I'm not
and I think if the Supreme Court wants to punt it,
that's going to be. The grounds they punted on is
that the president doesn't have the authority to rewrite law
that's pretty straightforward. All right. That'll do it for this episode.
Thank you so much for listening. I could not do
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