Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 493842 times)


bigdog

  • Power User
  • ***
  • Posts: 2321
    • View Profile

G M

  • Power User
  • ***
  • Posts: 17006
    • View Profile
Re: emoluments
« Reply #1402 on: July 03, 2017, 06:59:33 PM »
https://www.lawfareblog.com/reading-office-legal-counsel-emoluments-do-super-rich-presidents-get-pass

I guess this is the new angle of attack since the whole Russia thing has turned out to be bullshit.

 :roll:




DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Issues American Creed (Constitutional Law and related matters) David Stras
« Reply #1404 on: August 31, 2017, 06:18:04 AM »
There is a political issue in that Minnesota's Senators Amy Klobuchar and Al Franken are blocking Trump's nomination of Minnesota Supreme Court Justice David Stras to the 8th Circuit Court of Appeals, but that begs the question of whether work of this judge who has been smeared, slandered and libeled is out of the constitutional law mainstream.

https://www.minnpost.com/community-voices/2017/06/justice-stras-should-be-confirmed-us-court-appeals

http://www.powerlineblog.com/archives/2017/08/al-franken-thinking-it-over.php

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Issues American Creed, Constitutional Law: Little Pink House, Kelo the movie
« Reply #1405 on: February 19, 2018, 02:23:01 PM »
Just in case I haven't ranted enough about this lately...

Little Pink House - is going to be a movie

https://www.hollywoodreporter.com/news/little-pink-house-movie-tackling-kelo-supreme-court-decision-gets-release-date-1085796

This is one big issue where I strongly opposed Trump in the primaries, private takings.  The City of New London took Suzette Kelo's and all her neighbors' houses to make way for big pharma Pfizer, a "preferred" use. The Supreme Court (wrongly) upheld this. Of no legal meaning is that it was never built and sat there empty with prairie grass after kicking everyone out for better use. 
http://www.nytimes.com/2009/11/13/nyregion/13pfizer.html?mtrref=www.google.com&gwh=CB770269FD5BCBC170BBFEB6EFA7D830&gwt=pay
http://www.freedomworks.org/content/kelo-v-new-london-central-planning-does-not-work-ruins-lives

Around the same time, Trump 'persuaded' Atlantic City to take a little old lady's house for limo parking at a casino   for 'better use' - that went bankrupt.  In the debates, instead of just saying he used a law available to him he said he agreed with the 'Kelo" ruling, an outrageous position to constitution conservatives.
http://www.pressofatlanticcity.com/news/breaking/asking-price-drops-on-house-vera-coking-refused-to-sell/article_70e10cfc-6855-5fab-a1fe-f9cdfdba584f.html

This is an issue where my liberal cousin and I agree!


Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Re: Asset Forfeiture
« Reply #1407 on: March 21, 2018, 12:39:01 PM »
http://thehill.com/opinion/civil-rights/376961-civil-asset-forfeiture-reform-is-sweeping-the-nation

The laws they are beginning to reform are horrific.
"In most states, law enforcement entities can take and keep assets without even charging someone with a crime."

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Thank you Crafty.  I would like to copy this into our constitutional thread as well since it applies to all rights, not just gun rights.

Jefferson makes this same point famously in the Declaration of Independence too, but that is not directly a part of constitutional law. 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Your rights are not granted by your government.  They are "unalienable" and they are not limited to the enumerated ones.  The purpose of nearly every clause of the constitution is to limit the power of government to take rights away. 
------------------------

A surprising place to find constitutionally illiterate Americans is in the club of current and foreign Supreme Court members, one of whom, Stevens, suggests repealing the Second Amendment as a way of ending the right to keep and bear arms.  But is that so?  

In part, the second amendment says: 

"...the right of the people to keep and bear Arms,
 shall not be infringed
."

That right was already there?  Is the right of self defense a natural right, including the right to keep and bear arms, the right to fight off an armed attack on your family or to fight back against an oppressive, unconstitutional government?  Isn't that a pre-existing right, a right that existed before and without the Bill of Rights?

Hamilton argued against a Bill of Rights:  ... bills of rights “are not only unnecessary in the proposed constitution, but would even be dangerous.” In his mind, if the government is prohibited from doing certain things but isn’t prohibited from doing everything it isn’t expressly told it can do, then the danger is in its implications.  That is, the government can then do anything it’s not expressly forbidden to do.
http://www.libertyday.org/institute/2015/12/15/is-the-bill-of-rights-dangerous-alexander-hamilton-thought-so/

In this case, if we already had a natural right of self protection and the constitution did not grant the government the power to take that right away, saying that in an amendment is not necessary could be used to misconstrue people about the meaning of the constitution.  "Government can then do anything it’s not expressly forbidden to do"?  No.  Government can do nothing it is not specifically granted constitutional authority to do.  This is made clear in the 9th amendment:  "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  To take away guns after repealing the Second, they would have to repeal this too, but this limit was already true before and without its passage and ratification, so repealing this too would still not empower the federal government to take away your pre-existing right.  The country would also need to pass and ratify a new amendment specifically granting Congress the power to "infringe" on "the right of the people to keep and bear Arms", granting the power to deny any or all sales and to take away without warrant all owned weapons.  And that STILL wouldn't give them the power to search for those weapons.  They would further have to repeal the Fourth Amendment, the right of the people to be secure in their persons, houses, papers, and effects.  


Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
If Justice Kennedy retires, can GOP replace him
« Reply #1411 on: April 30, 2018, 11:03:02 AM »
Speculation from a year ago:
https://www.conservativereview.com/articles/justice-kennedys-retirement-could-prove-terrible-for-gop-agenda
Yesterday:  New York Times Editorial Board Begs Justice Kennedy Not to Retire
https://www.newsbusters.org/blogs/nb/pj-gladnick/2018/04/29/new-york-times-editorial-board-begs-justice-kennedy-not-retire

60 votes are no longer needed to confirm a Justice but support of all of the Republicans is.  Could the GOP actually get this done between June 30 and the election?  If the nominee is good enough, they would get a few of the votes from the Trump state Dem Senators up for reelection.  Give them any excuse to vote no and they will, same with McCain if he can still vote, and with Flake.

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Issues in Constitutional Law: popular vote
« Reply #1412 on: May 07, 2018, 12:55:59 PM »
Connecticut state Senate passes bill giving electoral votes to presidential candidate who wins popular vote
http://thehill.com/homenews/state-watch/386450-connecticut-lawmakers-vote-to-give-electoral-votes-to-presidential

Without re-reading the constitution or maybe their state constitution, this sounds unconstitutional to me.  CT Democrats are saying CT electoral votes go to the Dem in every close election no matter who wins in CT. This violates a principle called consent of the governed.  It is a political trick to move toward abolishing the electoral college, but abolishing the electoral college means either amending or abolishing the constitution.

The 38th most liberal state in the union is South Dakota, and it takes consent of 38 states to amend the constitution. You can infringe on the right to bear arms or have a President elected by the will of the people in the large states just as soon as you get South Dakota, Nebraska, Montana, West Virginia, Missouri, Texas, Georgia, Iowa, Indiana, North carolina, Kansas and 27 more states to agree with you. http://news.gallup.com/poll/181505/mississippi-alabama-louisiana-conservative-states.aspx

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
The Equal Rights Amendment is a feminist ruse
« Reply #1413 on: June 17, 2018, 09:30:22 PM »
   The Equal Rights Amendment Is a Feminist Ruse
By Alexandra DeSanctis   

June 11, 2018 6:30 AM

Actress Alyssa Milano (center) at a protest against Trump administration policy in Manhattan, July 16, 2017. (Caro Allegri/Reuters)
This is not about whether the Constitution applies to women.

Led by the indomitable actress Alyssa Milano, left-wing feminists are waging their latest self-righteous campaign, this time to ensure that American women will finally be viewed as human beings and granted the same rights as men.

After decades of the Left’s insistence that U.S. culture has made steady moral progress, we’re now told that, in fact, American women are still stuck in 1950. As punishment for our cultural sins, the debate over the Equal Rights Amendment (ERA) is back, courtesy of feminists increasingly embittered by the presidency of Donald Trump.

The would-be amendment passed Congress in the early 1970s, and its first section reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” (The other sections give Congress the power to enforce it and state that it goes into effect two years after ratification.)

The activists insist they are just “one state away” from ratification, but in fact they are far from accomplishing their goal. When Congress passed the amendment, it stipulated that if the states didn’t ratify the change by 1979, congressional approval would no longer be in force. When that failed, Congress extended the deadline to 1982, but no more states ratified it. In addition, five of the states that did ratify it later rescinded their endorsements.

To get to “one state away,” ERA supporters are counting all the states that ratified it before the deadline, ignoring states’ attempts to take back their blessings and counting two states that have ratified it since last year, decades after the deadline had passed. At the very least, the pro-ERA movement will face an uphill legal battle. It will need to prove both that Congress can’t set ratification deadlines and that states can’t rescind their ratification votes.

To the average citizen, meanwhile, it might seem that women have come a long way over the last century — since first-wave feminists won women the right to vote, for example. Not to modern feminists. Milano, for example, frames the need for the ERA as a question of whether “women should be protected under the constitution,” as if the rights enshrined therein don’t currently apply to women absent an explicit equal-rights-for-women clause.

“It literally just outlaws discrimination against women,” one of the amendment’s proponents wrote on Twitter. “All this law would do is ensure women are equal to men in the eyes of law,” another claims. Countless others explain the need for the amendment with the rote slogan “Women’s rights are human rights.”

There must be more to their campaign than meets the eye, because the outcomes they demand are already the law. Workplace discrimination on the basis of sex is illegal under federal statute. Sex-discrimination cases have also been successfully litigated under the 14th Amendment, contrary to Milano’s rather uninformed representation of constitutional law — though the 14th Amendment, like the text of the ERA, applies only to discrimination by governments.

What’s their real end game, then? To the extent that their campaign has any grounding in reality, it’s tied to the #MeToo movement, which revealed systemic sexual misconduct against American women in a number of industries. The ERA, though, wouldn’t address this problem in any meaningful way that hasn’t already been attempted through force of law. The horror stories that have emerged stemmed almost entirely from cultural rot and societal dysfunction, not from the fact that the U.S. Constitution has no Equal Rights Amendment.

This unconscionable treatment of women occurred not in the absence of legal protections but in a cultural climate in which powerful men felt entitled to coerce or harass or assault subordinate women. Those men faced no consequences not because there was no law against what they did but because those who knew about the abuse remained silent and turned a blind eye — until now.

The idea that such a culture would necessarily be transformed by a constitutional amendment restating legal rights women already possess places an absurd amount of faith in the notion that cultural problems can be corrected by legal means. If influential men have, until yesterday, gotten away with using their power to prey on women — despite the fact that laws existed to punish them — why would one more legal mechanism condemning unequal treatment change their behavior? It is the cultural view that must change, not the law.

More important, we ought to examine the underlying agenda of those making a renewed push for the ERA. Surely, they’re aware that current law prohibits sex discrimination. Progressives are after neither a legal innovation nor a symbolic victory. They desire, first and foremost, a tool with which to crush their ideological opponents and impose their radical agenda.

    A culture in which the Constitution is manipulated to protect sexual liberation as authentic female freedom will never be a culture that defends women.

Undoubtedly, for example, they wish to create some constitutional support for “reproductive rights.” The shaky legal fiction of Roe v. Wade — with no constitutional grounding aside from “emanations” and “penumbras” — has imposed an essentially unlimited abortion-on-demand regime on the entire country for decades. How much more powerful would this constitutional amendment be in accomplishing those aims, especially in the hands of a high court full of justices in the mold of Ruth Bader Ginsburg and Sonia Sotomayor?

In short, liberal feminists are disingenuous when they say they’re simply seeking “equal rights.” They want the U.S. Constitution to offer a clause that can be wielded to protect any right they deem essential to female empowerment. In practice, it would serve not as a recognition of women as equal human beings but as a formal codification of the spirit of the sexual revolution.

Comments   

If they get their way, it will no longer be the Department of Health and Human Services forcing employers to subsidize contraceptives and abortifacients; it will be the Equal Rights Amendment. When the giants of the abortion industry insist that Congress use taxpayer dollars to fund abortions, they will come carrying a copy of Madison’s founding document. Every demand for complete sexual libertinism, facilitated by the state, will suddenly have behind it the imprimatur of the U.S. Constitution. That’s what they’re after.

This amendment won’t ensure that women will receive equal opportunity in the workplace or that they will be free from the objectification of advertising companies and the porn industry. It won’t stand between the Harvey Weinsteins of the world and their innocent victims. No amendment can do that. Only a culture can. And a culture in which the Constitution is manipulated to protect sexual liberation as authentic female freedom will never be a culture that defends women.

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Re: The Equal Rights Amendment is a feminist ruse
« Reply #1414 on: June 18, 2018, 06:46:19 AM »
In the federal government the terms Parent One and Parent Two already replaced the words Mother and Father.

“It literally just outlaws discrimination against women,” one of the amendment’s proponents wrote...


No.  It literally outlaws discrimination in favor of women.  We don't have legal discrimination against women.

Implications of an ERA are far and reaching.  We have already destroyed almost all gender distinctions, mostly wrongly.  Women in combat?  Why?  Women in the draft?  We don't have a draft.  But under ERA it would be unconstitutional to construct a draft in a national emergency that didn't include our daughters. 

Each flaw under the ERA is only an example of the wrong of ending gender distinction.  Can't have separate bathrooms?  Can't have a mother, father distinction? 

Can't have girls or women's sports.  Take US Open tennis for example.  The prize money is US$ 50 million exactly equal between men and women.  Women play two out of three set matches and men play three out of five set matches, nearly twice as long on the court.  It was a 'victory' for feminists to get equal prize money for roughly half the work.  Exactly ZERO will go to women if you open up all events to all genders.  How can you not?  You can't use common sense when the constitution simple says you cannot discriminate on the basis of gender.

Without sports my daughter was not captain of her team in high school and all-conference in college which opened doors for her in business.  My Mom was state champion golfer and later top ten in the world in seniors.  Without a gender distinction, she would not have qualified to play in any event she entered or won.  Ending that benefits whom?  If you think the national anthem controversy hurt sports viewing, wait until Olympic pair skating is all men.  Olympic everything will be all men, or just the American team?

ERA was a Far Left construct from the 70s I think, perfectly designed to sound reasonable and fair, and barely stopped in the early 80s.  Totally predictable that it would re-emerge today in an age where advocating the rights of Trannies in the ladies room draws more of our attention than nuclear war proliferation.



DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
American Creed - Constitutional Law, Anthony Kennedy replacement
« Reply #1417 on: July 05, 2018, 08:01:15 PM »
Stare decisis, settled law, liberals want to know if all these candidates for the 'Kennedy' seat understand that all previous Supreme Court decisions, meaning Roe v Wade, are settled law and cannot rightfully be overturned.  It's always been this way - except for the first 197 years.

Just curious, wasn't marriage being between a man and a woman even longer settled law?  Wasn't parents being one mother and one father settled law?

Is Heller settled law, right to bear arms, settled law?  Is equal treatment under the law, settled law, see IRS targeting, HRC interview, progressive tax rates, etc. 

Was Dred Scott and slavery settled law?

I could go on.  Think of some context when you hear the liberal whiners in the committee soon confront with perfect predictability the not yet named nominee on whether they support the concept of stare decisis and settled law. 

There is settled law deserving of our respect and then, like Roe, there are wrongly decided cases.  The job of the  Justice is to recognize the difference.

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1418 on: July 07, 2018, 10:54:19 AM »
Plessey v. Ferguson was settled law for 56 years.

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

ccp

  • Power User
  • ***
  • Posts: 9711
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1420 on: July 09, 2018, 02:37:04 PM »
predict nominee will be the woman at 9 pm

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1421 on: July 10, 2018, 06:51:40 AM »
predict nominee will be the woman at 9 pm

I liked the prediction.  Ironically, a conservative woman or black is even harder for the liberals to take.

Kavanaugh is a great pick, I think.  We run the risk on all of them that they drift later but for all the information we have up front, this is a great pick. The longer and more solid the track record, the lower the risk of straying later.

Besides being a 'constitutionalist' (shouldn't they all be?!), he is an intellectual heavyweight.  A Supreme Court Justice has one vote out of nine, sometimes the deciding vote, but sometimes overlooked is that they all have some influence, for better or for worse, on the others.

There will be times constitutionalists rule against conservative policies.  But the other side has it worse.  The  liberal Justices vote for outcomes like Roe v Wade and thus their support for constitutional principles is always suspect.

When a conservative Justice votes against a conservative cause for his own jurisprudent principles, like Roberts not voting to overturn Obamacare, that damage can usually be repaired in the political branches if only your side can win enough votes and seats.

300 opinions to study, Kavanaugh's constitution even has a second amendment in it.


DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
American Creed Constitutional Law: Kavanaugh, Gold Plated Resume
« Reply #1422 on: July 10, 2018, 08:15:43 AM »
Glenn Reynolds:
Donald Trump plays it safe with Supreme Court pick Brett Kavanaugh's gold-plated resume
https://www.usatoday.com/story/opinion/2018/07/09/brett-kavanaugh-donald-trump-pick-conservative-justice-supreme-court-column/767923002/

Some conservatives would have preferred someone farther to the right, but realistically Kavanaugh fits Trump’s stated requirements for the court, and Kavanaugh is probably a safe pick, unlikely to pose any surprise problems in the confirmation process.  As Republican lawyer/author Kurt Schlichter put it, “We couldn't lose. And with Kavanagh, we haven't.”


Volokh, David Kopel:
No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh. His 2011 dissenting opinion in the case known as Heller II was consistent with his long-standing adherence to text, history, tradition, and Supreme Court precedent.
http://reason.com/volokh/2018/07/09/judge-kavanaugh-and-the-second-amendment?utm_source=dlvr.it&utm_medium=twitter

ccp

  • Power User
  • ***
  • Posts: 9711
    • View Profile

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Constitutional Law, Court's job is to interpret laws, not make them
« Reply #1424 on: July 11, 2018, 06:36:01 AM »
"Except for brief stretches under Chief Justice William Rehnquist, most people alive today don’t know what it’s like to have a Supreme Court where the majority consistently believes its job is to interpret the laws, not make them."
https://nypost.com/2018/07/11/why-democrats-are-right-to-worry-about-potential-kavanaugh-appointment/

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Issues in American Creed, Constitutional Law, Kavanaugh hearings begin
« Reply #1425 on: September 04, 2018, 06:42:38 AM »
Starting this week the nominee will be caught between avoiding comment on cases that will come before the court and being tempted to give the country a civics lesson. I hope to get from him many good quotes of wisdom regarding how issues and cases should be approached and decided.

Sample question from Hugh Hewitt this morning:
Dred Scott on slavery, Plessy Ferguson on segregation and Korematsu on Japanese internment were the three worst decisions in US history, the trifecta of stupidity. What went wrong?

Generally in these cases, you will find the wisdom we needed in the dissent.
« Last Edit: September 04, 2018, 07:50:26 AM by DougMacG »

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

bigdog

  • Power User
  • ***
  • Posts: 2321
    • View Profile
« Last Edit: September 09, 2018, 10:26:06 AM by Crafty_Dog »

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1428 on: September 09, 2018, 10:27:05 AM »
Great minds think alike-- I just posted this a few minutes ago in the "Way Forward for the American Creed" thread!  Glad to see it posted here as well.

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

G M

  • Power User
  • ***
  • Posts: 17006
    • View Profile
Re: The Atlantic: The Threat of Tribalism
« Reply #1431 on: September 15, 2018, 12:55:29 PM »
https://www.theatlantic.com/magazine/archive/2018/10/the-threat-of-tribalism/568342/

"Several progressive organizations, including the ACLU, remain staunch defenders of the Constitution."





Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile

Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile




Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1439 on: October 23, 2018, 11:14:14 PM »
My argument is that the opening phrase in our C. "in order to form a more perfect union"  incorporates by reference the Union created by the Articles of Confederation:

https://usconstitution.net/articles.html

The Articles of Confederation

Agreed to by Congress November 15, 1777; ratified and in force, March 1, 1781.
Preamble

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the Year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, in the words following, viz:

Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

ccp

  • Power User
  • ***
  • Posts: 9711
    • View Profile
Get rid of un needed Obama era plitical correct law
« Reply #1440 on: October 25, 2018, 07:19:12 AM »
suggests G Will ( shocked he found it within him to write an article without bashing Trump).  He must be on xanax):

https://www.nationalreview.com/2018/10/hate-crime-laws-abuse-of-power/


Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
Will SCOTUS take up transgender case?
« Reply #1442 on: October 28, 2018, 07:29:44 PM »
I fear Kavanaugh could prove to be a real weenie on all sex discrimination issue cases.

https://thehill.com/regulation/court-battles/413420-transgender-fight-could-prove-major-test-for-supreme-court?userid=188403



Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
We are stuck with Birthright Citizenship
« Reply #1445 on: October 31, 2018, 07:02:14 AM »
pasting CCP's post here:  https://www.nationalreview.com/2018/10/birthright-citizenship-arguments-constitutional-requirement/
« Last Edit: October 31, 2018, 07:23:34 AM by Crafty_Dog »


Crafty_Dog

  • Administrator
  • Power User
  • *****
  • Posts: 48084
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1447 on: October 31, 2018, 07:30:07 AM »
Fourth post:

On Twitter Planned Parenthood expressed outrage at President Trump's efforts to end birthright citizenship.

One response:  "What would know about it?"

ccp

  • Power User
  • ***
  • Posts: 9711
    • View Profile
birthright citizenship
« Reply #1448 on: October 31, 2018, 07:58:40 AM »


more on "birthright" citizenship:

https://www.nationalreview.com/2018/10/birthright-citizenship-arguments-constitutional-requirement/

I get the subject to the jurisdiction bit , but that means subjects to the laws , not entitled to benefits and rights accorded to citizenship.

The representatives will NEVER change this amendment  against the will of the people for their own agendas.

How about we make it clear , if you have a baby in this country while just visiting or are not permanent resident( green card ) or illegally here , both parents can NEVER be citizens.
I don't quite understand if "aliens" do not have the birth right then why illegals or those not permanent residents ?  NOne of this anchor baby stuff.

DougMacG

  • Power User
  • ***
  • Posts: 11440
    • View Profile
Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1449 on: October 31, 2018, 09:32:33 AM »
A funny aside is the sudden interest of liberals in the exact text of the constitution as they call Trump a hypocrite and anti-constitutionalist.  Maybe they should read the second amendment and a few others a little more closely.

Crafty, what is your view on the constitutional point.  

The words seems to leave room for other interpretation but the original meaning and intent does not.

Does 'subject to the jurisdiction' in this context distinguish a US citizen from someone who isn't eligible to vote, to receive a US passport, has loyalties to a foreign power?  Could a visitor to the US, non-resident, be drafted into the US military?
--------------------------
The first 55 results on Google-biased search say otherwise, but here is Rep Steve King from Iowa:

Ending Birthright Citizenship Does Not Require A Constitutional Amendment
Aug 19, 2015
...
The plain meaning of the 14th Amendment means that one must BOTH be born in United States AND be subject to the jurisdiction thereof. Since there are two explicit requirements, they both cannot be met by simply being born on U.S. soil.
The history of the drafting of the 14th Amendment makes clear that the language “subject to the jurisdiction thereof” meant a citizen could not owe allegiance to any other foreign power. This excludes illegal immigrants who are in defiance of U.S. jurisdiction and are citizens of a foreign power.

The Supreme Court has never held that the children of illegal immigrants born in the United States are automatically citizens.
Because the Supreme Court has not interpreted the Constitution to mandate automatic birthright citizenship, the Congress can pass a law to correct the current misguided and incorrect policy of automatically granting citizenship to children of illegal immigrants.

Plain Meaning of the Language of the 14th Amendment:

The Citizenship Clause of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside.”

By its own terms, the language in the amendment precludes the notion of universal automatic birthright citizenship. It would have been quite simple for the language to exclude “and subject to the jurisdiction thereof” to accomplish the goal of bestowing citizenship on any child born in the United States no matter the status of their parents. The 14th Amendment’s addition of a jurisdictional requirement to the territorial requirement, however, denies any interpretation that birth alone grants citizenship.

Counter to this logic, proponents of universal automatic birthright citizenship claim that those born in the United States necessarily are subject to the jurisdiction of the country. However, this renders the language “subject to the jurisdiction thereof” superfluous. Why would the drafters of the 14th Amendment include this qualifier at all if it was met simply by virtue of being born in the United States? The legislative history outlined below will make clear that the addition of “subject to the jurisdiction thereof” was designed specifically to make sure the people granted citizenship did not have divided political loyalties.

Legislative History of the 14th Amendment:

During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”[1]

Senator Howard also made clear that simply being born in the U.S. was not enough to be a citizen when he opposed an amendment to specifically exclude Native Americans from the Citizenship Clause. He said, “Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”

Notice the reasoning deployed, Native Americans maintain their tribal relations so they are not “subject to the jurisdiction thereof.” Senator Edgar Cowan said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.”[2]

Senator Lyman Trumbull said:

“The provision is, that ‘all persons born in the United States and subject to the jurisdiction thereof, are citizens. That means, “subject to the complete jurisdiction thereof.”[3] (emphasis added)

He further elaborated, “What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else.”

There was still more discussion of the language by Senator Reverdy Johnson. He said:

“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power for that, no doubt, is the meaning of the committee who have brought the matter before us, shall be considered as citizens of the United States.”[4]

Supreme Court on Birthright Citizenship for illegal immigrants:

While some have discussed birthright citizenship as if it is settled law that any person born in the U.S. is a citizen, the Supreme Court has never ruled as such. In the famous 2004 Supreme Court case, Hamdi v. Rumsfeld, Taliban fighter Yaser Esam Hamdi was discovered to have been born in the United States to parents that were subjects of the Kingdom of Saudi Arabia. Even though he was born in the United States, the Court never called him a citizen and the Court made no declaration in that case that anyone born on American soil was automatically a citizen.

In the Slaughter-House Cases of 1873, the Supreme Court said, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  

Next, in 1884, the Supreme Court addressed a claim of citizenship in Elk v. Wilkins. The Court held that John Elk did not meet the jurisdiction requirement of the 14th Amendment because he was a member of an Indian tribe at birth. The Court said that even though Elk was born in the U.S. he did not meet the “subject to the jurisdiction thereof” requirement because that required that he “not merely be subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction.”

Proponents of birthright citizenship for illegal immigrants point to the 1898 Wong Kim Ark case. However, that case dealt with a man that was born to parents that were legally and permanently domiciled in the United States at the time of his birth. In that case, there was more expansive language used on birthright citizenship, but it was neither the holding of the case nor does it operate as binding precedent on the Court or as the law of the land.
-----------------------

Trump has sworn to uphold the constitution, he believes this is constitutional, promised to do this as a candidate and was elected on that basis.  Congress could also do this or pass a law in contradiction to Trump.  Either way it would most certainly be challenged.  A Supreme Court uphold would settle it for now or a strike down would form the guidance and need for a new amendment proposal.
----------------------
To Planned Parenthood, each birth is one that got away.