1 00:00:04,879 --> 00:00:07,160 Speaker 1: What's going on. Thank you so much for listening to 2 00:00:07,200 --> 00:00:09,640 this podcast. It is heard live every day from noon 3 00:00:09,679 --> 00:00:12,519 to three on WBT Radio in Charlotte. And if you 4 00:00:12,560 --> 00:00:16,719 want exclusive content like invitations to events, the weekly live stream, 5 00:00:16,760 --> 00:00:19,239 I daily show prep with all the links, become a patron, 6 00:00:19,320 --> 00:00:22,600 go to thepeteclendershow dot com. Make sure you hit the 7 00:00:22,640 --> 00:00:25,160 subscribe button. Get every episode for free right to your 8 00:00:25,160 --> 00:00:27,679 smartphone or tablet. And again, thank you so much for 9 00:00:27,760 --> 00:00:31,960 your support. So we're going over the birthright citizenship issue. Okay, 10 00:00:32,280 --> 00:00:36,439 last hour, I kind of gave you the status of 11 00:00:36,479 --> 00:00:40,560 like the lawsuits, who's filed them, the standing issue, and 12 00:00:40,600 --> 00:00:43,079 that sort of thing. Now we're going to go into 13 00:00:43,119 --> 00:00:48,320 sort of the meat of the matter and the legal disagreements, 14 00:00:48,439 --> 00:00:52,119 the arguments from both sides, so you can be fully 15 00:00:52,159 --> 00:00:57,200 informed when listening to idiots around your lunch table or 16 00:00:57,200 --> 00:01:01,960 dinner table. So well, okay they may not be. They 17 00:01:02,079 --> 00:01:04,560 just may not know. Okay, they just may not know. 18 00:01:04,879 --> 00:01:07,760 So look, and I recognize that people are going to 19 00:01:07,879 --> 00:01:11,159 demagogue the issue. They're going to use all sorts of 20 00:01:12,560 --> 00:01:17,799 emotional plays in order to get you to shut up 21 00:01:18,599 --> 00:01:22,359 for simply discussing these things. And by the way just 22 00:01:22,400 --> 00:01:27,200 as a as a tactic, this is a helpful one 23 00:01:27,439 --> 00:01:30,840 when debating or when I say debate or arguing, I 24 00:01:30,840 --> 00:01:33,959 don't mean like in a nasty way, just a discussion. 25 00:01:34,439 --> 00:01:37,239 When you have a discussion and you're talking with people 26 00:01:37,239 --> 00:01:42,920 about this stuff, reinforce with them that, like, I may 27 00:01:42,959 --> 00:01:46,599 not agree with this, but here is the other side 28 00:01:46,599 --> 00:01:50,200 of this argument, right, So preface it by saying, like, 29 00:01:50,319 --> 00:01:55,079 I'm not advocating this, I'm just examining it, because all 30 00:01:55,120 --> 00:01:58,959 too often when people are examining and testing theories and 31 00:01:59,439 --> 00:02:03,200 arguments and such, the other person will hear you say 32 00:02:03,280 --> 00:02:05,719 something and think that this is what you believe in, 33 00:02:06,280 --> 00:02:09,159 and you may not actually believe in all of the 34 00:02:09,199 --> 00:02:11,560 components of the argument that you have just laid out. 35 00:02:11,879 --> 00:02:17,960 You're simply just testing, you're examining, you're thinking, you're thinking. 36 00:02:18,039 --> 00:02:19,960 I know it's a bit of a lost art nowadays, 37 00:02:19,960 --> 00:02:24,159 but when you're thinking these things through, it's imperative that 38 00:02:24,639 --> 00:02:27,919 you try to see the different angles and weigh the 39 00:02:27,919 --> 00:02:31,639 different arguments. So preface it by saying, you know, I'm 40 00:02:31,680 --> 00:02:34,800 not advocating this, but here's the you know, here's this 41 00:02:34,919 --> 00:02:37,919 other argument. So how do we address this argument? Does 42 00:02:37,919 --> 00:02:41,319 it have merit right? Does this other argument make some 43 00:02:41,400 --> 00:02:44,680 good points? Does it not? What are the flaws in it? 44 00:02:44,719 --> 00:02:49,240 What are its strengths? Okay, so last hour I mentioned 45 00:02:49,280 --> 00:02:51,120 a Supreme Court case and by the way, thank you 46 00:02:51,159 --> 00:02:53,360 to I don't remember who it was who sent me. 47 00:02:53,439 --> 00:03:00,560 The sent me the case name, which a couple of 48 00:03:00,599 --> 00:03:05,400 days ago, like last week or something. But there is 49 00:03:05,439 --> 00:03:11,520 a presidential not presidential, but precedent presidential case, the Wang 50 00:03:11,840 --> 00:03:17,159 kim Arc case. That's the guy's name, Wang kim Arc, 51 00:03:18,039 --> 00:03:24,680 and this individual was born in San Francisco, his parents 52 00:03:25,240 --> 00:03:33,000 were Chinese citizens. At age twenty one, Wog takes a 53 00:03:33,120 --> 00:03:39,039 trip to China to visit his parents. When he comes 54 00:03:39,120 --> 00:03:43,360 back to the United States, he has denied entry on 55 00:03:43,439 --> 00:03:47,560 the grounds that he is not a US citizen. This 56 00:03:47,759 --> 00:03:50,879 case made its way all the way to the Supreme Court, 57 00:03:51,439 --> 00:03:55,240 and the court ruled in a six to two decision 58 00:03:55,879 --> 00:04:00,599 in favor of Wang kim Arc, asserting that he is 59 00:04:00,840 --> 00:04:05,159 a citizen because he was born in San Francisco, even 60 00:04:05,199 --> 00:04:09,400 though his parents were Chinese citizens, because he was born 61 00:04:09,439 --> 00:04:12,080 in the US and his parents were not quote employed 62 00:04:12,240 --> 00:04:17,879 in any diplomatic or official capacity under the Emperor of China, 63 00:04:18,600 --> 00:04:21,800 the citizenship clause of the fourteenth Amendment automatically made him 64 00:04:21,800 --> 00:04:27,279 a US citizen. This case highlighted a disagreement between the 65 00:04:27,399 --> 00:04:31,560 justices over the precise meaning of the key phrase in 66 00:04:31,600 --> 00:04:36,160 the citizenship clause of the fourteenth Amendment, which is subject 67 00:04:36,240 --> 00:04:38,920 to the jurisdiction thereof right, you've heard me mention that 68 00:04:38,959 --> 00:04:44,360 before this is the key phrase. So, writing for the majority, 69 00:04:44,720 --> 00:04:50,000 the six to two majority, Justice Horace Gray, here is 70 00:04:50,560 --> 00:04:56,040 the rationale. Okay, But here was this? Do I need 71 00:04:56,079 --> 00:04:59,000 to adopt like a nineteenth century accenter of this the 72 00:04:59,079 --> 00:05:02,319 fourteenth to firms the age was that have they talked 73 00:05:02,360 --> 00:05:05,040 in the I don't know, I'll just read it. The 74 00:05:05,079 --> 00:05:09,959 Fourteenth Amendment affirms the ancient and fundamental rule of citizenship 75 00:05:10,240 --> 00:05:14,839 by birth within the territory, in the allegiance and under 76 00:05:14,879 --> 00:05:19,399 the protection of the country, including all children here born 77 00:05:19,560 --> 00:05:24,839 of resident aliens, with the exceptions or qualifications as old 78 00:05:24,920 --> 00:05:28,680 as the rule itself of children of foreign sovereigns or 79 00:05:28,680 --> 00:05:32,879 their ministers, or born on foreign public ships, or of 80 00:05:33,000 --> 00:05:37,160 enemies within and during hostile occupation of part of our territory, 81 00:05:37,279 --> 00:05:40,319 and with the single additional exception of children of members 82 00:05:40,319 --> 00:05:43,839 of the Indian tribes owing direct allegiance to their several tribes. 83 00:05:44,279 --> 00:05:45,839 So they gave a carve out. He was giving a 84 00:05:45,920 --> 00:05:50,199 karva there, Like, we're not talking about those Indians. It 85 00:05:50,279 --> 00:05:53,399 was the nineteenth century after all, So no, no, no, no, 86 00:05:53,519 --> 00:05:58,480 not them. The amendment, in clear words and in manifest intent, 87 00:05:59,000 --> 00:06:01,680 includes the children were born within the territory of the 88 00:06:01,800 --> 00:06:05,160 United States of all other persons of whatever race or 89 00:06:05,279 --> 00:06:10,040 color domiciled within the US. Every citizen or subject of 90 00:06:10,040 --> 00:06:14,600 another country, while domiciled here, is within the allegiance and 91 00:06:14,639 --> 00:06:17,959 the protection and consequently subject to the jurisdiction of the 92 00:06:18,120 --> 00:06:24,040 United States. And if you think back like, oh, I 93 00:06:24,079 --> 00:06:29,920 don't know. So let's say after the formation of the country. 94 00:06:30,639 --> 00:06:33,959 So let's say, like you know, early eighteen hundreds, eight 95 00:06:34,000 --> 00:06:38,319 to eighteen five, let's say people who came over And 96 00:06:38,439 --> 00:06:41,079 I think this would have, you know, predated all of 97 00:06:41,079 --> 00:06:44,560 the mass immigration from Europe at the time, right with 98 00:06:44,600 --> 00:06:47,160 the Potato famine and all of that stuff, right Ellis 99 00:06:47,160 --> 00:06:50,720 Island and everything. So I want to say, like, back then, 100 00:06:51,000 --> 00:06:53,920 if people came into the country, you know, like they 101 00:06:53,959 --> 00:06:59,759 sail on over and they they land someplace in like Florida, 102 00:07:01,680 --> 00:07:04,759 and they just like, get in some wagons and head 103 00:07:04,759 --> 00:07:09,279 west and then they have some kids along the trail. 104 00:07:10,800 --> 00:07:12,639 Maybe they make it to Oregon, I don't know. Maybe 105 00:07:12,639 --> 00:07:15,040 they die of dysentery. I don't know, but they have 106 00:07:15,160 --> 00:07:18,560 their babies. They set up a homestead and a little 107 00:07:18,639 --> 00:07:20,680 village and now they've built a town and then it 108 00:07:20,720 --> 00:07:25,560 comes to city whatever. So would those kids be citizens? 109 00:07:29,120 --> 00:07:29,279 Speaker 2: Right? 110 00:07:29,279 --> 00:07:31,839 Speaker 1: If the people that came over are on that boat 111 00:07:31,879 --> 00:07:34,000 from wherever country they came from, it doesn't matter to me. 112 00:07:34,279 --> 00:07:37,079 But if they came over it landed in Florida, got 113 00:07:37,120 --> 00:07:40,480 in some wagons, proceeded west, carved out a piece of 114 00:07:40,560 --> 00:07:43,399 land for themselves, and then you know, a bunch of 115 00:07:43,480 --> 00:07:45,160 other people are with them, and they set up a 116 00:07:45,199 --> 00:07:48,120 town and whatever, and then they start having kids. Are 117 00:07:48,160 --> 00:07:52,360 those kids citizens? Right? And at the time it makes 118 00:07:52,399 --> 00:07:55,120 sense where the US is like manifest destiny, we want 119 00:07:55,160 --> 00:07:57,959 to expand and all of this. So they would count 120 00:07:58,000 --> 00:08:00,800 them as citizens. They would say they were a Marrias, right, 121 00:08:01,680 --> 00:08:04,360 I assume. But I wasn't alive back then, so I 122 00:08:04,360 --> 00:08:11,279 don't know. But then they're not citizens? What about their kids? Right? 123 00:08:11,360 --> 00:08:11,439 Speaker 2: Like? 124 00:08:11,480 --> 00:08:15,040 Speaker 1: What if the people of the town the one generation, 125 00:08:15,160 --> 00:08:20,480 two generations, three generations, are all of them not citizens 126 00:08:20,560 --> 00:08:26,000 because it's not passed through the lineage, right or the soil. 127 00:08:26,240 --> 00:08:29,439 So which is it? So this is the question that 128 00:08:29,680 --> 00:08:32,759 the Supreme Court was seeking to address here, saying no, no, 129 00:08:33,960 --> 00:08:37,600 if they're born here, they're citizens, except the Indians, except 130 00:08:37,639 --> 00:08:41,759 the Native Americans. They again, or they gave some other 131 00:08:42,000 --> 00:08:48,639 exceptions here too, children of foreign sovereigns, so leaders or 132 00:08:48,679 --> 00:08:52,240 their ministers. So if you have like ambassadors that are 133 00:08:52,240 --> 00:08:55,200 from another country they have kids here, that doesn't give 134 00:08:55,200 --> 00:08:58,440 you citizenship. You're just an ambassador here. Let's not get crazy. 135 00:09:00,799 --> 00:09:02,759 And then if there was like some occupied territory, if 136 00:09:02,759 --> 00:09:06,000 they lost some territory to you know, let's say the 137 00:09:06,080 --> 00:09:14,720 French or something the friends. No, okay, fine, that's a 138 00:09:14,759 --> 00:09:19,480 cheap shot. Sometimes I take it. Trump administration lawyers are 139 00:09:19,639 --> 00:09:23,639 likely to argue that Wang Kim r arc that that 140 00:09:23,799 --> 00:09:31,080 decision and precedent applied to specifically and only resident aliens 141 00:09:31,600 --> 00:09:43,360 meaning lawful permanent residents. Resident aliens lawful permanent residents, lawful 142 00:09:43,519 --> 00:09:47,559 meaning they came here correctly, followed the laws, right, they 143 00:09:47,600 --> 00:09:52,480 reside here permanently, but they have the government's blessing to 144 00:09:52,559 --> 00:09:56,799 be here. Hence the reason why Wang Kim arc was 145 00:09:56,879 --> 00:10:00,360 a citizen because apparently his parents were when he was 146 00:10:00,399 --> 00:10:06,759 born at least lawful permanent residents. They were not illegal immigrants. 147 00:10:07,039 --> 00:10:09,919 So if you are an illegal immigrant, this is the test. 148 00:10:10,320 --> 00:10:13,000 You're not supposed to be here. You are not lawful. 149 00:10:14,120 --> 00:10:16,879 But there's another Supreme Court case from nineteen eighty two 150 00:10:17,240 --> 00:10:21,320 that's Plyiler v. Do here's a great idea. How about 151 00:10:21,320 --> 00:10:24,600 making an escape to a really special and secluded getaway 152 00:10:24,600 --> 00:10:27,039 in western North Carolina. Just a quick drive up the 153 00:10:27,080 --> 00:10:30,360 mountain and Cabins of Asheville is your connection. Whether you're 154 00:10:30,360 --> 00:10:33,240 celebrating an anniversary, a honeymoon, maybe you want to plan 155 00:10:33,279 --> 00:10:36,000 a memorable proposal, or get family and friends together for 156 00:10:36,039 --> 00:10:39,200 a big old reunion. Cabins of Asheville has the ideal 157 00:10:39,279 --> 00:10:41,840 spot for you where you can reconnect with your loved 158 00:10:41,879 --> 00:10:44,919 ones and the things that truly matter. 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Going over 173 00:11:34,120 --> 00:11:37,759 all of the information you will need to sound informed 174 00:11:37,799 --> 00:11:41,679 when you discuss the birthright citizenship issue, which is now 175 00:11:41,679 --> 00:11:44,519 going to wind its way through the courts after about 176 00:11:44,519 --> 00:11:49,600 two dozen Blue states sued the federal government over Trump's 177 00:11:49,639 --> 00:11:55,320 executive order to upend the birthright citizenship that has been 178 00:11:55,399 --> 00:11:59,440 part of our our society for over one hundred years. 179 00:12:01,080 --> 00:12:03,440 I mentioned the first case that was the Wong kim 180 00:12:03,679 --> 00:12:09,000 Ark case. There's another Supreme Court case though, from nineteen 181 00:12:09,039 --> 00:12:12,159 eighty two. By the way, if you want to read 182 00:12:12,159 --> 00:12:13,919 more about this, I'm giving you sort of the highlights 183 00:12:13,960 --> 00:12:16,440 out of a piece at National Review by Jim Garretty. 184 00:12:16,960 --> 00:12:21,799 Can birthrights citizenship be repealed by executive order? Spoiler no, 185 00:12:22,600 --> 00:12:26,399 But anyway, the Supreme Court case from nineteen eighty two 186 00:12:26,759 --> 00:12:30,279 was Pliler versus Doe, and the Court ruled in that 187 00:12:30,399 --> 00:12:34,279 case five to four, So a very split decision there, 188 00:12:34,320 --> 00:12:38,240 five to four, and they said, whatever his status under 189 00:12:38,320 --> 00:12:43,200 the immigration laws, an alien is a person in any 190 00:12:43,360 --> 00:12:48,360 ordinary sense of that term, and therefore were afforded Fourteenth 191 00:12:48,440 --> 00:12:57,320 Amendment protections. Okay. Justice William Brennan, writing for the majority, said, 192 00:12:58,440 --> 00:13:02,759 use of the phrase within its jurisdiction, that's from the Constitution, 193 00:13:04,279 --> 00:13:09,080 from within its jurisdiction, confirms the understanding that the Fourteenth 194 00:13:09,080 --> 00:13:14,519 Amendments protection extends to anyone citizen or stranger who is 195 00:13:14,600 --> 00:13:18,480 subject to the laws of a state and reaches into 196 00:13:18,559 --> 00:13:25,080 every corner of a state's territory. Today's Supreme Court garrity rights. 197 00:13:25,120 --> 00:13:28,600 Today's Supreme Court might see the matter differently, though it's 198 00:13:28,639 --> 00:13:31,320 also possible that the Court might determine that while the 199 00:13:31,360 --> 00:13:36,000 definition of citizenship can be legislatively changed to exclude the 200 00:13:36,080 --> 00:13:42,320 children of illegal immigrants, it cannot be unilaterally redefined by 201 00:13:42,360 --> 00:13:48,559 the executive branch. And that's where I think I am 202 00:13:48,679 --> 00:13:51,919 on this at the moment. I am open to be persuaded, 203 00:13:51,960 --> 00:13:55,120 but right now seems to me like if you want 204 00:13:55,159 --> 00:13:56,759 the law changed. I know I'm going to be a 205 00:13:56,799 --> 00:14:01,200 little bit consistent here, but if you want to change law, 206 00:14:02,240 --> 00:14:06,080 you have to change the law. It sounds weird, but 207 00:14:06,720 --> 00:14:12,480 that's how. There's a whole process for changing laws. In fact, 208 00:14:12,799 --> 00:14:15,600 we have people and we elect them, and then we 209 00:14:15,679 --> 00:14:18,639 pay them to go to another city and they all 210 00:14:18,720 --> 00:14:23,879 meet together and we call them law makers, and they 211 00:14:23,919 --> 00:14:27,080 make laws, and then the president has to sign it, 212 00:14:27,120 --> 00:14:30,120 and then once that happens, then it's a law. See 213 00:14:30,120 --> 00:14:34,080 that's how that would work. So this is why I 214 00:14:34,159 --> 00:14:39,240 am not a fan of in general executive orders. I 215 00:14:39,279 --> 00:14:42,360 don't like them very much. I can agree with what 216 00:14:42,440 --> 00:14:46,360 an executive order attempts to do, but I don't like 217 00:14:46,440 --> 00:14:50,879 the mechanism because it gets us closer and closer to 218 00:14:51,679 --> 00:14:56,879 having a king. I don't want a king. I don't 219 00:14:57,000 --> 00:14:59,879 need a king. I don't need a sovereign. I don't 220 00:15:00,200 --> 00:15:03,039 a mommy or a daddy telling me this is how 221 00:15:03,519 --> 00:15:05,799 we're going to run now for four years, while I'm 222 00:15:05,840 --> 00:15:08,440 in charge, and if you like it, then put me 223 00:15:08,519 --> 00:15:11,360 back in and we'll stay on this path for another 224 00:15:11,399 --> 00:15:14,559 four years. Oh but if I lose, then the next 225 00:15:14,600 --> 00:15:17,600 person who comes in, they're going to completely rewrite all 226 00:15:17,639 --> 00:15:19,240 of the stuff that I did. Oh and they're also 227 00:15:19,320 --> 00:15:21,200 going to write a bunch of stuff that you don't like, 228 00:15:21,840 --> 00:15:24,320 and that's not going to have to go through a 229 00:15:24,399 --> 00:15:27,679 legislative process. Once again, I understand this may be a 230 00:15:27,720 --> 00:15:31,919 bit confusing to some people. I am being consistent on this, Okay. 231 00:15:32,279 --> 00:15:37,080 So next up Andy McCarthy, also National Review. He talks 232 00:15:37,080 --> 00:15:42,639 about section fourteen oh one of the Immigration and Naturalization Law. 233 00:15:42,799 --> 00:15:45,960 This is Title eight under the US Code. This is 234 00:15:46,000 --> 00:15:49,240 also going to be part of the of the debate. 235 00:15:49,320 --> 00:15:52,799 So you have the Plilo case, you have the Wong case, 236 00:15:53,120 --> 00:15:57,759 and you've got section fourteen oh one, and it says 237 00:15:58,240 --> 00:16:03,440 that included among US citizen is any person born in 238 00:16:03,480 --> 00:16:08,120 the United States and subject to the jurisdiction thereof right. 239 00:16:08,200 --> 00:16:11,120 That's the fourteenth Amendment. But that means the issue is 240 00:16:11,200 --> 00:16:14,000 not just what jurisdiction was understood to mean and back 241 00:16:14,039 --> 00:16:16,759 in eighteen sixty eight when the Fourteenth Amendment was adopted, 242 00:16:16,840 --> 00:16:20,360 but what it meant in nineteen fifty two, when this 243 00:16:20,559 --> 00:16:25,960 statute section fourteen oh one, when the statute defining citizenship 244 00:16:26,039 --> 00:16:28,840 wasn't acted. So you can't only look at, well, what 245 00:16:28,879 --> 00:16:31,399 do they mean by the jurisdiction thereof you can't only 246 00:16:31,440 --> 00:16:35,240 look at what the original writers of the of the 247 00:16:35,279 --> 00:16:38,799 Amendment after the Civil War meant by jurisdiction. You also 248 00:16:38,879 --> 00:16:41,519 have to then look at the law that was passed 249 00:16:41,559 --> 00:16:45,279 by Congress in nineteen fifty two, and you have to say, well, 250 00:16:45,440 --> 00:16:49,480 what did they mean by the jurisdiction because they cite 251 00:16:49,519 --> 00:16:54,559 it too, and it seems pretty clear. All right, I 252 00:16:54,679 --> 00:16:57,279 hope you had a happy holiday season. But tell me 253 00:16:57,320 --> 00:17:00,000 if something like this happened at your house. Your family 254 00:17:00,000 --> 00:17:02,320 and friends are gathered around, Maybe y'all are in the 255 00:17:02,360 --> 00:17:07,519 living room, You're laughing, swapping stories, reminiscing, and then somebody says, hey, Dad, 256 00:17:07,759 --> 00:17:11,160 remember those old VHS tapes? Did you ever get them transferred? 257 00:17:11,640 --> 00:17:14,240 And then the room gets all quiet. All eyes are 258 00:17:14,279 --> 00:17:17,000 on Dad, who says, oh, you know, well, I've been 259 00:17:17,079 --> 00:17:19,920 meaning to but I just having gotten around to it. Look, 260 00:17:20,000 --> 00:17:23,200 don't let those priceless memories sit in a box for 261 00:17:23,279 --> 00:17:26,039 another year, all right, create a video has been helping 262 00:17:26,079 --> 00:17:29,319 families in the Charlotte area preserve their history since nineteen 263 00:17:29,400 --> 00:17:32,640 ninety seven. Simply bring in your old camquarder tapes and 264 00:17:32,799 --> 00:17:36,440 Creative Video will transfer them to a USB flash drive 265 00:17:36,640 --> 00:17:38,759 for just fourteen ninety five per tape. You have a 266 00:17:38,759 --> 00:17:42,119 big collection, they've got a discount for you. And next year, 267 00:17:42,240 --> 00:17:46,480 instead of talking about those memories, imagine gathering the family 268 00:17:46,599 --> 00:17:50,079 to watch them together. Talk about a memorable gift. So 269 00:17:50,160 --> 00:17:52,920 do what I did. Trust the experts at Creative Video, 270 00:17:53,279 --> 00:17:56,079 conveniently located in mint Hill right off I four eighty 271 00:17:56,119 --> 00:18:00,599 five and online at create avideo dot com. We're going 272 00:18:00,640 --> 00:18:06,839 over the debate about the birthright citizenship. This legal argument 273 00:18:06,960 --> 00:18:10,440 is now going to be tried through the courts, and 274 00:18:11,200 --> 00:18:13,680 I'm fine with that. That's what a democracy does, That's 275 00:18:13,680 --> 00:18:18,119 what self government is about. We hear these arguments, we 276 00:18:18,160 --> 00:18:20,920 debate the arguments, right and if you don't like this, 277 00:18:21,039 --> 00:18:22,519 by the way, then it kind of tells me that 278 00:18:22,559 --> 00:18:25,279 you don't actually believe in self government because this is 279 00:18:25,319 --> 00:18:29,400 what democracy looks like. Tell me what democracy looks again. 280 00:18:29,400 --> 00:18:31,759 That's the anti fit chance that they usually do well, 281 00:18:31,759 --> 00:18:35,079 and to be fair, they occupy Wall Street chance, the 282 00:18:35,119 --> 00:18:39,359 anti Trump chants like all of those marchers. They always 283 00:18:39,400 --> 00:18:43,440 do that. Chance. So you have the Supreme Court case, 284 00:18:43,920 --> 00:18:47,000 the original one, the Wong case eighteen ninety eight. Then 285 00:18:47,039 --> 00:18:52,039 you've got a case later on in Pliler versus Dough. 286 00:18:52,200 --> 00:18:55,039 Then you have the case or sorry, the law that 287 00:18:55,119 --> 00:18:59,559 was written Immigration Naturalization Laws, section fourteen oh one, that 288 00:18:59,599 --> 00:19:02,359 was written nineteen fifty two, where they directly quote the 289 00:19:02,359 --> 00:19:05,359 Fourteenth Amendments person born in the United States and subject 290 00:19:05,400 --> 00:19:07,799 to the jurisdiction thereof. You'd have to figure out what 291 00:19:07,839 --> 00:19:10,319 they meant by that. They were quoting the Fourteenth Amendment, 292 00:19:10,680 --> 00:19:16,119 Congress's codification of that language, and it did not need 293 00:19:16,160 --> 00:19:19,559 to include that in its law, but they did. That 294 00:19:19,720 --> 00:19:24,400 could be seen, could be argued that's an expression of 295 00:19:24,960 --> 00:19:29,960 Congress's intent to exercise its constitutional authority to set the 296 00:19:30,039 --> 00:19:34,200 terms of citizenship. Right. They're like, we see this in 297 00:19:34,359 --> 00:19:36,839 the Constitution, we agree with it, we're keeping it, we're 298 00:19:36,839 --> 00:19:41,720 putting it into the law. In a recent edition of 299 00:19:42,519 --> 00:19:45,119 the publication National Affairs, there were two scholars of the 300 00:19:45,119 --> 00:19:49,200 Constitution who took up this issue and debated it. They 301 00:19:49,240 --> 00:19:53,160 came to the same conclusion that Andy McCarthy came to 302 00:19:53,640 --> 00:19:56,240 over at national review, which is that the Constitution does 303 00:19:56,279 --> 00:20:00,000 not decisively resolve the question and actually leaves it over 304 00:20:00,119 --> 00:20:03,960 into Congress, not the president acting on his own. Though 305 00:20:04,759 --> 00:20:08,799 right birthright citizenship is a legitimate political and policy question, 306 00:20:08,920 --> 00:20:11,160 and it is a hard one, but that does not 307 00:20:11,319 --> 00:20:14,880 make it a question that is open to resolution by 308 00:20:15,119 --> 00:20:17,920 executive action. And once again, this is a problem that 309 00:20:17,960 --> 00:20:21,079 we have descended to where we expect the president to 310 00:20:21,160 --> 00:20:26,000 write law, no Congress. Does that add it all up. 311 00:20:26,799 --> 00:20:29,680 Jim Garretty says, this executive order looks like it has 312 00:20:29,720 --> 00:20:35,359 a steep uphill climb in the federal court system. Now. 313 00:20:36,319 --> 00:20:40,200 Ryan Williams over at unheard dot com makes the case 314 00:20:40,279 --> 00:20:44,680 for ending birthright citizenship and doing it this way, although 315 00:20:44,759 --> 00:20:47,960 I would point out that even he does acknowledge that 316 00:20:48,839 --> 00:20:52,000 it's going to be an uphill battle. He said, the 317 00:20:52,039 --> 00:20:54,440 phrase at the issue at the center of this issue 318 00:20:54,480 --> 00:20:58,359 is subject to the jurisdiction thereof, known as the jurisdiction clause. 319 00:20:58,759 --> 00:21:02,559 Proponents of birth right they maintain that the phrase merely 320 00:21:02,599 --> 00:21:06,680 means subject to the laws and the courts of the US. Yet, 321 00:21:06,720 --> 00:21:11,519 the debates over the eighteen sixty six Civil Rights Act, 322 00:21:11,599 --> 00:21:14,759 the legislation that led to the Fourteenth Amendment also to 323 00:21:14,799 --> 00:21:18,759 the principles of the American Founding suggest a different interpretation. 324 00:21:19,839 --> 00:21:22,880 In eighteen sixty six, the Act, the Civil Rights Act, 325 00:21:23,119 --> 00:21:26,400 was meant to secure the full benefits of citizenship for 326 00:21:26,599 --> 00:21:30,079 recently freed slaves and their descendants, and they were all 327 00:21:30,119 --> 00:21:34,720 black citizens for that matter. The laws proponents were determined 328 00:21:35,119 --> 00:21:39,519 to convert it from legislation to constitutional text so it 329 00:21:39,519 --> 00:21:41,720 would be harder to change by future congresses. 330 00:21:41,799 --> 00:21:42,000 Speaker 2: Right. 331 00:21:42,559 --> 00:21:46,039 Speaker 1: That prompted the Fourteenth Amendment. Okay, So you can actually 332 00:21:46,079 --> 00:21:49,039 look at the legislative history of eighteen sixty six Civil 333 00:21:49,119 --> 00:21:52,200 Rights Act to inform us of what they meant by 334 00:21:52,279 --> 00:21:58,799 the Fourteenth Amendment language. The eighteen sixty six legislation said, 335 00:21:58,920 --> 00:22:03,160 quote all persons born in the United States and not 336 00:22:03,400 --> 00:22:09,720 subject to any foreign power, excluding Indians. Not text. It's 337 00:22:09,759 --> 00:22:12,960 also in that one too, are hereby declared to be 338 00:22:13,000 --> 00:22:18,039 citizens of the United States. All persons born in the 339 00:22:18,119 --> 00:22:22,400 US and not subject to any foreign power. Okay. A 340 00:22:22,440 --> 00:22:26,200 few months later, Fourteenth Amendment gets debated. The floor manager, 341 00:22:26,720 --> 00:22:31,640 Senator Jacob Howard described it as quote simply declaratory of 342 00:22:31,640 --> 00:22:34,759 what I regard as the law of the land already, 343 00:22:35,400 --> 00:22:38,039 namely that every person born within the limits of the 344 00:22:38,160 --> 00:22:42,519 United States and subject to their jurisdiction, is, by virtue 345 00:22:42,799 --> 00:22:48,119 of natural law and national law, a citizen of the US. 346 00:22:48,960 --> 00:22:50,960 This will not, of course, include persons born in the 347 00:22:51,079 --> 00:22:55,440 US who are foreigners, aliens who belong to the families 348 00:22:55,440 --> 00:23:00,440 of ambassadors or foreign ministers by the law of the land. Already, 349 00:23:00,440 --> 00:23:03,440 when Howard said that, he meant the recently past eighteen 350 00:23:03,519 --> 00:23:10,519 sixty six Civil Rights Act. So in such language from 351 00:23:10,519 --> 00:23:14,400 some of the Fourteenth Amendment's chief proponents, we can discern 352 00:23:14,440 --> 00:23:17,640 the outlines of an argument that the jurisdiction clause meant 353 00:23:17,680 --> 00:23:20,720 more than merely being subject to the law and courts 354 00:23:20,759 --> 00:23:22,759 on US soil. It had to do with a fundamental 355 00:23:22,759 --> 00:23:28,160 tenet of citizenship, which is loyalty or allegiance. He then 356 00:23:28,200 --> 00:23:32,519 talks about the Wang Kim arc case, talks about the 357 00:23:32,519 --> 00:23:37,519 sixty two decision and Horace Gray, who wrote the majority 358 00:23:37,559 --> 00:23:40,839 opinion that I read portions of and these concepts of 359 00:23:41,039 --> 00:23:46,400 just soli or jus senguin meaning right of soil jewe 360 00:23:46,440 --> 00:23:51,000 soli right of soil or jus seguin, which is right 361 00:23:51,039 --> 00:23:58,000 of blood, and he says it's neither since the common 362 00:23:58,079 --> 00:24:01,599 law mandated birthright citizens the child was a citizen under 363 00:24:01,599 --> 00:24:04,480 the Fourteenth Amendment. According to that ruling, the case remains 364 00:24:04,480 --> 00:24:09,079 the controlling precedent for the maximalist position on birthright citizenship, 365 00:24:09,119 --> 00:24:12,440 and it is cited by sympathetic judges and law professors 366 00:24:12,480 --> 00:24:14,759 on both sides of the isle. But if you read 367 00:24:14,799 --> 00:24:19,039 the dissent in that case, written by Chief Justice Melville Fuller, 368 00:24:20,079 --> 00:24:23,559 he offers an interpretation of the Fourteenth Amendment citizenship clause 369 00:24:23,559 --> 00:24:27,599 that is more consonant with American principles of just government. 370 00:24:28,599 --> 00:24:33,680 Fuller argued that the common law couldn't be the controlling 371 00:24:33,720 --> 00:24:38,359 authority because, in separating from the British Crown as America did, 372 00:24:38,799 --> 00:24:43,359 the American colonists had elevated the principles of the Declaration 373 00:24:43,400 --> 00:24:47,440 of Independence over the common law. The common law of 374 00:24:47,440 --> 00:24:55,359 England contemplated subjects owing perpetual allegiance rather than citizens of 375 00:24:55,400 --> 00:24:59,960 a government based on consent, and so Ryan Williams argued 376 00:25:00,119 --> 00:25:03,839 is that Fuller was right in his descent. The common 377 00:25:03,960 --> 00:25:07,480 law didn't come up at all during any of the 378 00:25:07,559 --> 00:25:11,799 debates in the Fourteenth Amendment. The people that passed the 379 00:25:11,839 --> 00:25:14,799 Fourteenth Amendment believed that the principles of the Declaration of 380 00:25:14,839 --> 00:25:19,440 Independence would control and where necessary, overrule, the common law 381 00:25:19,480 --> 00:25:23,920 of England. If human equality is a fact of nature, 382 00:25:24,559 --> 00:25:29,519 Nature's law, natural law, human equality, then nobody may rule 383 00:25:30,039 --> 00:25:35,839 another without their consent, and everybody ought to enjoy their 384 00:25:35,880 --> 00:25:39,960 liberties and the pursuit of happiness alike. The existence of slavery, 385 00:25:40,480 --> 00:25:43,079 the ensuing crisis brought on by the conflicts between these 386 00:25:43,119 --> 00:25:46,319 principles and American practice, and the subsequent Civil War are 387 00:25:46,359 --> 00:25:50,039 the historical context for the fourteenth Amendment, along with the 388 00:25:50,079 --> 00:25:56,640 thirteenth and fifteenth. American citizenship, defined constitutionally for the first 389 00:25:56,640 --> 00:25:59,400 time in the eighteen sixties, was never based in blood, 390 00:26:00,599 --> 00:26:04,240 I just sanguine. Never based in blood, but it was 391 00:26:04,319 --> 00:26:09,319 never based in juice solely in the soil either. American 392 00:26:09,359 --> 00:26:13,880 citizenship was based on consent. What does that mean? All right? 393 00:26:13,920 --> 00:26:15,720 If you're listening to this show, you know I try 394 00:26:15,759 --> 00:26:17,519 to keep up with all sorts of current events, and 395 00:26:17,559 --> 00:26:19,640 I know you do too, And you've probably heard me 396 00:26:19,680 --> 00:26:23,880 say get your news from multiple sources. Why Well, because 397 00:26:23,920 --> 00:26:26,599 it's how you detect media bias. Which is why I've 398 00:26:26,599 --> 00:26:29,960 been so impressed with ground news. It's an app and 399 00:26:30,160 --> 00:26:33,079 it's a website and it combines news from around the 400 00:26:33,079 --> 00:26:35,799 world in one place, so you can compare coverage and 401 00:26:35,880 --> 00:26:38,920 verify information. You could check it out at check dot 402 00:26:39,240 --> 00:26:42,920 ground dot news slash pete. I put the link in 403 00:26:42,960 --> 00:26:46,079 the podcast description too. I started using ground News a 404 00:26:46,119 --> 00:26:48,839 few months ago and more recently chose to work with 405 00:26:48,880 --> 00:26:51,279 them as an affiliate because it lets me see clearly 406 00:26:51,640 --> 00:26:55,000 how stories get covered and by whom. The blind spot 407 00:26:55,000 --> 00:26:57,880 feature shows you which stories get ignored by the left 408 00:26:58,000 --> 00:27:03,440 and the right. See for yourself Ground dot news slash pete. 409 00:27:03,559 --> 00:27:06,200 Subscribe through that link and you'll get fifteen percent off 410 00:27:06,240 --> 00:27:09,519 any subscription. I use the Vantage plan to get unlimited 411 00:27:09,519 --> 00:27:12,839 access to every feature. Your subscription then not only helps 412 00:27:12,880 --> 00:27:15,640 my podcast, but it also supports ground News as they 413 00:27:15,680 --> 00:27:19,079 make the media landscape more transparent. Let's head over to 414 00:27:19,079 --> 00:27:22,599 the phones and chat with Bud. Hello, Bud, Hey, Hey, 415 00:27:22,599 --> 00:27:23,319 I'm good. What's up? 416 00:27:24,039 --> 00:27:26,519 Speaker 2: All right? Hey? I really lack this discussion. You really 417 00:27:26,559 --> 00:27:29,480 are going do it in great detail. My thought was, 418 00:27:30,799 --> 00:27:34,839 and I know it's a really difficult to modify a law, 419 00:27:35,079 --> 00:27:39,839 especially amendment, but the modification would be a person born 420 00:27:39,839 --> 00:27:43,480 in the United States is automatically a citizen as long 421 00:27:43,640 --> 00:27:47,720 as at least one parent at least was already a 422 00:27:47,759 --> 00:27:50,359 citizen at the time of the birth right. 423 00:27:50,400 --> 00:27:53,720 Speaker 1: And so that's the and this that gets to sort 424 00:27:53,720 --> 00:27:56,839 of the argument that Ryan Williams is making. It's not 425 00:27:56,960 --> 00:28:01,319 quite a you know, juice sanguine in other words, you know, 426 00:28:02,720 --> 00:28:07,720 the right of lineage, basically the bloodline. Yes, it is. 427 00:28:08,359 --> 00:28:11,119 His argument is one of consent, because even the Wong 428 00:28:11,279 --> 00:28:16,240 case was based on this belief and fact that the 429 00:28:16,359 --> 00:28:22,480 parents were permanently domiciled in America at the time. Absolutely, yes, 430 00:28:22,680 --> 00:28:24,799 and so that's yeah. So there is an element of 431 00:28:24,839 --> 00:28:28,440 what Williams is describing as consent, and that gets to 432 00:28:28,480 --> 00:28:32,359 this the argument that isn't right of soil in other words, 433 00:28:32,440 --> 00:28:35,839 just because you're here you're born here, or right of lineage. 434 00:28:36,119 --> 00:28:43,119 It would apply to a consent argument in that you 435 00:28:43,240 --> 00:28:46,240 want to be here and so you come. But also 436 00:28:46,440 --> 00:28:48,680 the other element there there has to be consent that 437 00:28:49,160 --> 00:28:53,359 the host country wants you here as well and permits 438 00:28:53,400 --> 00:28:57,039 you to be here right Otherwise there's only you need 439 00:28:57,079 --> 00:29:00,599 both parties to consent otherwise it's not truly sensual. 440 00:29:02,200 --> 00:29:05,119 Speaker 2: I agree, but I doubt that the Supreme Court will 441 00:29:05,119 --> 00:29:08,759 see it that way, and the argument is not in 442 00:29:08,799 --> 00:29:11,400 the law anywhere. Of course, I guess that's for the 443 00:29:11,400 --> 00:29:12,640 Supreme Court you decide. 444 00:29:12,720 --> 00:29:15,119 Speaker 1: Yeah, yeah, we'll see. But I appreciate the calls a 445 00:29:15,200 --> 00:29:20,319 good to hear from you. All right, all right, take care. Right. 446 00:29:20,359 --> 00:29:25,920 American citizenship, the argument goes, is based on consent wankim Arc. 447 00:29:26,160 --> 00:29:28,839 The Wan case should be overturned, he says, and we 448 00:29:28,880 --> 00:29:32,880 should have a robust national debate about citizenship and immigration 449 00:29:33,319 --> 00:29:37,119 and national allegiance. Congress is well within its enforcement powers 450 00:29:37,200 --> 00:29:40,279 under Section five of the fourteenth Amendment to restrict birthright 451 00:29:40,359 --> 00:29:43,960 citizenship much more than it currently does. Right, So this 452 00:29:44,160 --> 00:29:47,680 is the key. Like, for example, children of foreign soldiers 453 00:29:47,720 --> 00:29:50,759 born on US soil have always been excluded from the 454 00:29:50,759 --> 00:29:53,599 birthright citizenship in the same way that children of ambassadors 455 00:29:53,599 --> 00:29:58,559 and diplomats are also. Okay, And what Williams is arguing 456 00:29:59,079 --> 00:30:05,519 over it unheard even under the wrong precedent, controlling emphasis 457 00:30:05,640 --> 00:30:09,880 was placed on the importance of ARC's parents being permanently 458 00:30:09,920 --> 00:30:14,799 domiciled in the United States. That's what made him a 459 00:30:14,920 --> 00:30:20,559 legal US citizen was that his parents were here legally, 460 00:30:21,680 --> 00:30:24,200 they were here, they were allowed to be here, and 461 00:30:24,279 --> 00:30:27,359 so when they had a child here, the elements of 462 00:30:27,440 --> 00:30:30,839 consent are achieved. Basically, they're allowed to be here. And 463 00:30:31,200 --> 00:30:35,000 now he's a citizen. He says, let's update and apply 464 00:30:35,119 --> 00:30:40,799 that precedent to a world transformed by transportation technology that 465 00:30:40,839 --> 00:30:44,640 has occurred in the ensuing one hundred and twenty seven years. 466 00:30:45,519 --> 00:30:48,279 And by the way, like I am open to that too, 467 00:30:48,440 --> 00:30:51,440 Like that is that's a pretty important part of this. Also, 468 00:30:51,960 --> 00:30:58,079 these laws were written at a time when transatlantic Transpacific 469 00:30:58,160 --> 00:31:01,680 travel was very difficult, right, it was hard to go 470 00:31:01,799 --> 00:31:05,480 long distances like this just to have a child. And 471 00:31:05,599 --> 00:31:10,599 you know, so it like nowadays, the you know, birthing 472 00:31:10,680 --> 00:31:16,400 tourism has become a thing. He says. If you are 473 00:31:16,440 --> 00:31:19,480 not a lawful permanent resident, any children you may have 474 00:31:19,599 --> 00:31:23,240 in the United States are permanent residents with you, not 475 00:31:23,480 --> 00:31:28,079 automatic citizens, right, why not apply that designation? And then 476 00:31:28,599 --> 00:31:30,400 I got a message here actually hang on, let me 477 00:31:30,519 --> 00:31:35,079 sus on the Twitter machine, HM or no, sorry, it 478 00:31:35,079 --> 00:31:39,279 was an email Jay, He says, I was born in 479 00:31:39,319 --> 00:31:41,759 Germany while my dad was in the army. Even though 480 00:31:41,759 --> 00:31:44,119 I was born on a US military base, my birth 481 00:31:44,160 --> 00:31:47,920 certificate was in German. When I was getting my security 482 00:31:47,920 --> 00:31:50,640 clearance for my time in the Navy, I had to 483 00:31:50,720 --> 00:31:56,960 renounce any claims to German citizenship. Who knew being born 484 00:31:57,000 --> 00:31:58,599 somewhere would impute citizenship? 485 00:31:58,680 --> 00:31:58,920 Speaker 2: Right? 486 00:32:00,119 --> 00:32:05,079 Speaker 1: Yeah, So if your parents are permitted to be here, 487 00:32:05,680 --> 00:32:11,640 you should. I mean it seems logical that whatever status 488 00:32:11,680 --> 00:32:15,440 they have may very well apply to you, because that's 489 00:32:15,519 --> 00:32:19,680 the element of the consent right that the government has 490 00:32:19,759 --> 00:32:22,400 consented for you to be here. So if you are 491 00:32:22,400 --> 00:32:25,519 here on a tourist visa, then your child gets a 492 00:32:25,519 --> 00:32:29,880 tourist visa with you. Right, they don't get citizenship, they 493 00:32:29,880 --> 00:32:32,559 get a tourist visa. They get the same status that 494 00:32:32,599 --> 00:32:34,359 you do. Wouldn't that make it cleaner? 495 00:32:36,240 --> 00:32:36,599 Speaker 2: Right? If? 496 00:32:37,079 --> 00:32:41,359 Speaker 1: I don't know, it's a compelling argument. So now I 497 00:32:41,400 --> 00:32:44,759 feel like we've got all the bases covered. I think, 498 00:32:44,799 --> 00:32:49,039 you know, the legal arguments about the birthright citizenship. Now 499 00:32:49,039 --> 00:32:51,880 the executive order part of this. I have not found 500 00:32:51,920 --> 00:32:56,200 anybody that says that this is anything other than a 501 00:32:56,279 --> 00:32:59,240 vehicle to push the issue into the courts. I'm not 502 00:32:59,480 --> 00:33:01,839 and I think if the Supreme Court wants to punt it, 503 00:33:02,079 --> 00:33:03,640 that's going to be. The grounds they punted on is 504 00:33:03,640 --> 00:33:05,960 that the president doesn't have the authority to rewrite law 505 00:33:06,359 --> 00:33:09,720 that's pretty straightforward. All right. That'll do it for this episode. 506 00:33:09,720 --> 00:33:11,799 Thank you so much for listening. I could not do 507 00:33:11,839 --> 00:33:14,000 the show without your support and the support of the 508 00:33:14,039 --> 00:33:17,079 businesses that advertise on the podcast, so if you'd like, 509 00:33:17,200 --> 00:33:19,319 please support them too and tell them you heard it here. 510 00:33:19,440 --> 00:33:21,960 You can also become a patron at my Patreon page 511 00:33:22,079 --> 00:33:25,640 or go to dpetecleanershow dot com. Again, thank you so 512 00:33:25,720 --> 00:33:32,279 much for listening, and don't break anything while I'm gone.