I predict the U.S. Supreme Court will treat this issue like they did when the Miranda warnings were challenged. The 5th Amendment, after all, merely prohibits any person in a criminal proceeding from being compelled to be a witness against himself. It does not require the arresting officer to read a certain formula to the perp word-for-word, on pain of dismissal of the case. If the suspect confesses to the crime, and there are sufficient indicia of voluntariness, he was no way compelled to speak, that should be sufficient.
But the Supreme Court, after asserting firmly that its constitutional rulings could not be legislatively overruled, preserved the Miranda warnings because by that time they were âpart of our national cultureâ by which I reckon they meant we had all seen it on TV in hundreds of cop and detective shows.
Although as a principle of statutory construction they shouldnt and canât just disregard the 14th Amendmentâs words âand subject to the jurisdiction thereofâ (contrast the 5th Amendment, which does not contain that proviso) I think the Court will end up saying that okay, so the 14th doesnât actually require the result that anybody can sneak in here and give birth to a citizen. But thatâs what people have always thought, for over a century now, soâŚif you wanna change this aspect of our ânational cultureâ, youâre gonna hafta amend the 14th Amendment.
If I were a Justice, Iâd rule that children of people here in violation of our laws do NOT become citizens, but I reckon Iâd make the ruling prospective, as courts often do when ruling on a matter of first impression. Or would that open the ruling up to a charge of âarbitrary discriminationâ because thereâs no basis for distinguishing between babies born before SCOTUSâ ruling and those born after? Welpâlegislation is always a matter of drawing a line, and up against that line on either side, you get the âhard casesâ which proverbially make bad law.
If the warnings are part of the culture, they are superfluous; cops should not need to recite them of everyone already knows them by heart. Yet, somehow, the Court used this fact to come to the opposite conclusion. This is example #1,817 of the Myth of the Rule of Law. The Court is almost entirely a political creature.
As for the birthright citizenship case, legal reasoning has little to do with it. Paraphrasing Beria, show me the desired result and Iâll find the reasoning. And I think we all know what the desired result is.
The best outcome would be if the Supreme Court started a new tradition by kicking this issue back to Congress. The question of birthright citizenship is properly a political decision which should be made by the representatives of the people; it is not a legal decision. The unelected Supreme Court judges should not be acting as the supreme parliament of the US.
Of course, the absolutely worthless denizens of Congress are totally unrepresentative of the US people, and they spend their entire lives trying to avoid responsibility for anything. Let the Supreme Court put them on the spot and force them to take responsibility for making a key decision about the nature of citizenship â or at least to pass the decision on to the States in the form of a proposed Constitutional Amendment to settle the issue once & for all.
It makes little difference. If there is even a slim chance of abolishing birthright citizenship, it lies with the Court. The Congress would never approve such a measure. There an even slimmer chance of getting 3/4 of the states to agree.
I agree â THIS Congress will run like frightened little girls from having to take responsibility for making any decision. We the People have allowed Congress to degenerate into the total institutional failure we see today â and We the People re-elect these mostly worthless individuals at a rate which exceeds even tenure in the Chinese Communist Partyâs ruling elite.
Congress is The Problem. If the Supreme Court could shine a light on that by requesting Congress to fulfill its responsibilities, that might lead to positive change. Because the only alternative to a change in the nature of Congress is societal collapse.
Las night mark Levin had a guest who pointed out that in 1924, Congress passed a statute conferring American citizenship on all American Indians. Why would that have been necessary if it has always been believed that birth within our geographical boundaries confers citizenship? So this gent says there really hasnât been a universal belief in jus soli for all that long.
Or could that have had to do with birth on lands that were âreservedâ for various tribes? I want to believe we have sharp legal minds on our side (because there are going to be many amicus briefs filed, and I hope we the Rightly-guided produce our share) but I was puzzled by a podcast I listened to wherein one supposed authority kept talking about the intent of âthe foundersâ in connection with the 14th amendment. That wasnt written by the Founders.
Itâs no mystery what the 14th was intended to accomplish.
Not much mentioned are the exceptions to automatic birthright citizenship awards - like children born to families in foreign embassies and consulates. Can anyone argue the drafting of the 14th Amendment foresaw a coordinated invasion of foreign women for the express purpose of birthing an anchor baby - in effect giving a score or so of relatives citizenship?
There is another factor: citizenship has significant downsides, like lifelong owing of federal income tax - regardless of where it is earned. Ask Boris Johnson.
ADDENDUM: Of course, there is little reason to believe the invaders duty to pay income tax will be enforced. They are obviously immune to most laws which are applied - mercilessly - against mere citizens.
A few years ago I read several articles about âbirth tourismâ: Chinese women, mostly, flying to California, dropping the baby (probably at our taxpayersâ expense, since how are the hospitals gonna collect?) and then returning to China with the infantâwho can then come back here as a citizen when he or she is 18, and, of course, bring an entire âchainâ of relatives along.
But, it was just like with the threat of the EMP: people learned about it and then evidently just decided not to think about it any more. The threat is still there, but too scary to contemplate.
And PS I just read a government publication on thisâit doesnât have a date, but itâs post 2020. The bottom line is itâs grounds to refuse a visa if the âprimary purposeâ of the visit is to give birth here. But the applicant canât be asked whether she is pregnant, of course. And there mightâve some other âprimaryâ purpose, like visiting a family member. In which case the visa would be granted.
In short,while the firms like Miami Mama, (which previously operated openly catering to Russian and Chinese women coming here for the sole purpose of delivering a birthright citizen) may have folded or gone underground, the practice of birth tourism continues.
The publication states solemnly, âAmerican citizenship is not a backup planâ.
Except, yeah ,it IS, and it will continue to be so unless birthright citizenship is eliminated. So câmon, SCOTUS! hoping against hopeâŚ..
It would be quite informative to know how many of these intentionally created citizens ever pay the federal income tax liability their birthright also automatically creates.
Oh. I should add that anyone who has ever asserted birth was âtaxingâ had no idea as to the full meaning of that observation in the context of âbirthrightâ citizenship.
