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the citizenship clause of the fourteenth amendment which begins all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states that language was added to the constitution following the civil war in order to overrule the infamous dred scott decision which declared that african americans could not be citizens however like other provisions of the fourteenth amendment the language of the citizenship clause is general by its terms it does not apply merely to former slaves and their descendants but to all persons born here the trump white paper does not say how trump intends to end birthright citizenship some people who oppose birthright citizenship call for a constitutional amendment but other reformers suggest that no amendment is needed the citizenship clause they note is limited to those persons subject to the jurisdiction of the united states and they argue that children of undocumented immigrants do not satisfy this criterion as a textual matter that claim is odd as professor and verdict columnist ronald rotunda noted in a 2010 chicago tribune op ed undocumented immigrants are indeed subject to the jurisdiction of local state and federal government as are their children if they break the law they can be prosecuted just like anybody else what does the fourteenth amendment mean when it refers to people who are born here but not subject to u s jurisdiction the supreme court answered that question in the 1898 case of united states v wong kim ark riding a wave of nativist racism against east asians that bears an uncomfortable resemblance to the anti latino sentiments that contemporary immigration hawks sometimes express congress enacted and then re enacted the chinese exclusion act which placed severe restrictions on the entry into the united states of chinese persons including in the view of the government official who sought to exclude wong kim ark ethnic chinese who had been born in the united states the court rejected the government s attempt to apply the chinese exclusion act on the ground that wong kim ark was a u s citizen even though his parents remained subjects of the emperor of china justice gray s majority opinion relied mostly on the common law and practice that formed the backdrop for the fourteenth amendment that backdrop also informed the court s understanding of the amendment s express qualification children born in the u s to foreign ambassadors and consuls or to soldiers or others accompanying invading armies had by tradition not been regarded as citizens as they were not subject to our law but otherwise people present in the u s are subject to u s laws and for that reason most people born in the u s are u s citizens yet wong kim ark s parents were in the u s legally when he was born no supreme court case affirming the broad scope of birthright citizenship speaks to the precise question of the citizenship of children born to undocumented immigrants and in their 1985 book citizenship without consent illegal aliens in the american polity peter schuck and rogers smith relied on an 1884 supreme court case holding that native americans are not entitled to birthright citizenship to question the broad language of wong kim ark as applied to children of undocumented immigrants thus if immigration liberals are comforted by the apparently clear implications of the language of wong kim ark we should remember that before the supreme court dignified the claim that congress lacks the power to require people to purchase health insurance that claim too was widely dismissed as essentially foreclosed by prior precedent we should not underestimate the ability of clever lawyers to make off the wall arguments sound reasonable especially if they end up arguing before a supreme court that includes new justices appointed by a future get tough on immigration president the virtues of birthright citizenship should the opponents of birthright citizenship fail to get what they want by persuading or packing the supreme court they would need to amend the constitution what can we say to persuade americans that such an amendment would be a bad idea the best defense of birthright citizenship echoes the position espoused by the supreme court in the 1982 case of plyler v doe texas tried to deny a free public education to the undocumented immigrant children living in that state in holding that the state thereby violated the constitution the court noted that the state s approach was illogical as justice powell explained in a concurrence no one benefits from the creation within our borders of a subclass of illiterate persons many of whom will remain in the state so too with citizenship itself if we are not going to deport the millions of people born here to undocumented immigrants and we are not then there is little reason to withhold the sense of belonging and the concomitant sense of duty that go with citizenship many countries including countries generally regarded as democracies reject birthright citizenship treating parentage as the chief means of acquiring citizenship as professor rotunda noted in his op ed and as professor neil buchanan discussed in his recent column on the dominican republic s treatment of its ethnic haitian minority this approach can be ugly generation after generation of people who have known no other home are treated as not even second class citizens by contrast birthright citizenship implements widely shared and characteristically american values through the titles of nobility clauses of article i sections 9 and 10 the constitution abjures eighteenth century european notions of privilege obtained by birth meanwhile article iii section 3 forbids the corruption of blood the old practice of disinheriting the heirs of persons convicted of treason or other serious crimes together these provisions reject the proposition that in america the sins of the fathers or mothers can be visited on the sons or daughters that notion also informed the supreme court s decision in plyler even if the state found it expedient to control the conduct of adults by acting against their children justice brennan wrote for the majority legislation directing the onus of a parent s misconduct against his children does not comport with fundamental conceptions of justice no doubt the american commitment to disregarding accidents of birth has always been under inclusive originally grossly so after all the original constitution co existed with race based chattel slavery and we still face the consequences of our collective failure to fully remedy that historic wrong but the fourteenth amendment including its citizenship clause was a huge step in the right direction curtailing its promise of birthright citizenship would thus be a huge step backward posted in amendments citizenship constitutional decision scotus slavery tagged citizenship slavery leave a comment august 18 2015 by dmbuteau judges who broadcast their imprudent and injudicious behavior ronald d rotunda aug 8 2015 judge writingtype judges behaving badly into google and you will get over 400 000 hits there is one story after another about judges acting injudiciously sometimes criminally for example the state of oklahoma convicted one state judge of exposing himself while presiding over jury trials he used a penis pump under his robes his former court reporter testified that she saw him expose himself at least 15 times during a two year period in a murder case the jurors asked the judge about the whooshing sound under his desk he said he had not heard it he later said that a fishing buddy gave him the pump as a joke it wasn t something i was hiding when state judges act injudiciously state judicial discipline is available the state remedies include the state publicly reprimanding the judge or suspending him or her without pay for a period and even removing him or her from the bench in addition in many states the people vote for their judges so that periodic elections can remove embarrassments no so for federal judges their lifetime tenure and salary protection make them immune from effective discipline although congress can impeach for serious offenses a rarely used remedy unless the federal government convicts the judge of a felony even then the judge remains a judge and collects his salary while serving time in prison until the house impeaches and the senate removes the federal judge the framers of our constitution gave federal judges lifetime tenure and salary protection to to make judges independent not to authorize them to act with gay abandon some judges do not understand that when they ascend to the bench they are supposed to leave their politics behind let us consider district judge richard kopf of the district of nebraska he wrote a blog he calls hercules and the umpire in burwell v hobby lobby stores inc 2014 the supreme court held that a regulation of health and human services could not force hobby lobby to pay for abortifacients to give to its employees congress could pay for the abortifacients if it chose to do so there would be no constitutional problem with that indeed congress could distribute free abortifacients on vending machines each street corner but congress actually in this case the secretary of hhs could not force one private party to pay for another s abortion that violated a federal statute directly on point the decision protected the religious liberties of the employer judge kopf published his analysis of this decision in is blog it was pithy as the kids say it is time for the court to stfu where he prints stfu he added a hyperlink to the urban dictionary helpfully explaining to the reader what stfu means all in all for that one posting one sees the term stfu 64 times kopf says that the majority decided as they did because they are catholics kopf by the way compares his own legal analysis to that of the late professor alexander bickel of yale whose writing is more eloquent judge kopf s blog gave him 15 minutes of fame in the popular press with an article in the huffington post and a few other places about his language not content with just 15 minutes he later decided to attack senator cruz on july 6 2015 judge kopf told us senator ted cruz is not fit to be president i hold no brief for senator cruz i do wonder however why federal judges who are supposed to leave their politics behind when they assume the bench would signify their disapproval rebuke or endorsement of any presidential candidate if judge kopf wondered whether it was ethically proper to give his official seal of approval or disapproval to a presidential candidate he was not cast adrift with no navigational aids the administrative office of the u s courts publishes is code of conduct for u s judges the very first sentence provides federal judges must abide by the code of conduct for united states judges a set of ethical principles and guidelines adopted by the judicial conference of the united states the title of canon 5 provides in bold letters no less a judge should refrain from political activity canon 5a 2 states and a judge should not make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office emphasis added that sentence is not difficult to understand the administrative conference also provides ethics opinions to explain further what is not permitted the committee on codes of conduct advisory opinion no 19 june 2009 explains that canon 5a 2 is so strict that the judge should resign membership in a political club advocating and maintaining the principles of any political party even though the judge does not actively participate in the club in case one wonders what about senator cruz so irked judge kopf to proclaim his public opposition to cruz s candidacy kopf who concedes that he should not be handing out such pronouncements tells us in no uncertain terms as a federal judge i am duty bound not to play politics however when a politician makes an extreme proposal emphasis added to amend the constitution and fundamentally alter and harm the federal judiciary and the supreme court i have the right as a federal judge and dare i say the duty to respond to the proposal senator and presidential candidate ted cruz has recently stated i am proposing an amendment to the united states constitution that would subject the justices of the supreme court to periodic judicial retention elections every justice beginning with the second national election after his or her appointment will answer to the american people and the states in a retention election every eight years those justices deemed unfit for retention by both a majority of the american people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the court because cruz is serious about this extreme proposal cruz is demonstrably unfit to become president judge kopf actually claims that he did not label senator cruz unfit to serve in order to oppose his candidacy kopf could have fooled me i thought that if you say that cruz is not fit to become president that means that you oppose his election to that office no says judge kopf who claims he made his statement rather to demolish sic and protect us all from his intemperate legal attacks on the supreme court whether one thinks that the idea of having term limits for judges is a bad idea or a good one a proposal for a constitutional amendment is hardly an intemperate attack or an extreme proposal in 2009 professor paul carrington of duke university urged congress to consider term limits for supreme court justices last october dean erwin chemerinsky of the university of california irvine said i do believe there should be term limits for supreme court justices he presents his arguments in his article ted cruz is right the supreme court needs term limits was that yet another extreme proposal or an intemperate attack on the supreme court chemerinsky argues that judicial elections are not the answer instead he proposes that each justice should be appointed for an 18 year non renewable term thus creating a vacancy every two years he develops this idea in one of his recent books linda greenhouse has also proposed 18 year terms polls show that a large majority of americans without regard to party support some sort of term limits for u s supreme court justices last june the supreme court ruled held that there is a constitutional right to same sex marriage nationwide a result that drew popular support and that it would reject another challenge to president barack obama s healthcare law which does not enjoy such widespread support a month after those two cases a reuters ipsos poll showed that the people in general favor term limits for justices 66 percent of democrats 74 percent of republicans and 68 percent of independents all favored the 10 year term limit for justices are two thirds of democrats inte...
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