Executive rewriting of The Constitution

Political Philosophy Law
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The most significant first salvo in Trump’s attack against foreigners is his interpretative directive regarding “citizen”, which says that

            Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:  (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

One has to fill in some gaps to make this argument complete. These points will no doubt be explicitly argued when the case reaches the appeals courts. Para 6 of the TRO against the order only gives a simple statement of why plaintiffs are likely to succeed. For our temporary entertainment (or, in anticipation of a forthcoming legal apocalypse), we can consider the probable logic that can be applied to this case.

The key constitutional clause is that “All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”. Exceptions have long been recognized by reference to English law for a definition of “natural-born British subject”, whereby one is not a natural-born British subject. First, “Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person’s birth is in hostile occupation, is an alien” and “Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien”. This defines the common law presumption that underlies the US Constitution.

In the Slaughterhouse Cases (16 Wall. 83 U. S. 72), the court makes a distinction between citizenship in a state, and citizenship in the US:

 

            The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

 

That ruling also states the standard interpretation of ‘subject to its jurisdiction’:

            The 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."

 

In US v. WAK, the court dials back this position a bit, noting that “neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest…”, referring to Minor v. Happersett (1874), 21 Wall. 162, 88 U. S. 166-168. Instead, 

            Allegiance and protection are, in this connection…reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents.

 

Here is the ticking time bomb:

            As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

The court in US v. WAK then claims that

            The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

It is uncontroversial that there exists a traditional definition of those who are not natural born citizens (a fatal lacuna in Roe v. Wade). The core of the “subject to jurisdiction” argument starts at p. 169.

It is utterly uncontroversial that every alien who is present in the US, other than a POW or diplomat, is subject to the laws of the US. Were that not the case, and were Trump’s assertion about offspring of aliens who are either illegal or temporary not being “subject to US jurisdiction” true, that would mean that offspring of such persons are, like POWs and diplomats, immune from criminal prosecution of civil action – a ludicrous assertion. That is the difference between those subject to jurisdiction, and those immune to jurisdiction.

Whenever the court utters an unprincipled statement like “For the purposes of this case, it is not necessary to solve these doubts”, you can predict that such failure to identify a principle will come back to bite you, or more precisely, us. There is a strong argument from tradition that “subject to the jurisdiction thereof” has an extremely narrow application. I predict that the order will be obliterated, possibly even by SCOTUS explicitly reaffirming the meaning of “subject to the jurisdiction thereof”. Still, nothing is certain with this court.

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What practical advantages are gained by foreign nationals having a minor child as a citizen of the US?

There must be some tangible benefits , I know or rather know of two Eastern European women who came to the US for the express purpose of having the child born on US soil, and I really don’t know many people , or my chance encounters just happen to overlap with a small anecdotally correlated pool.

Do we need an amendment?

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It is widespread in other countries that citizenship is inherited from parents. This leads to ethnically-based stateless people such as Syrian Kurds. Many nations allow foreigners to “reclaim” citizenship either if you are a member of the majority ethnic group, or have an ancestor who is provably a citizen of the country. That is un-American, but only because of the Constitution. So a Constitutional amendment would be passed that imposes whatever restrictions you want on citizenship. In Rome, a person is automatically a citizen if both parents are free Roman citizens, there was a public-service option. You could stipulate that to be a citizen, you must be branded on the left shoulder. A Constitutional Amendment can say anything, and it becomes the law of the land, until repealed.

Some people consider it to be a benefit if their children are potentially protected by the fact of being a US citizen. Consider your typical brutal dictatorship that randomly slaughters citizens. A child who is a US citizen has the opportunity to escape the dictatorship to live in a free country (of course, they do have to find a way out, but at least they have a right to remain in the US). There is also the possibility (but no guarantee) that a parent of a US citizen will be allowed entry into the US by dint of the fact that their child is a US citizen. This is still the law, as long as the citizen child is 21 or older.

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Sometimes there seems to be a legal point where someone is deemed to have gotten away with stealing and therefore gains a right to what he has stolen.

For example suppose you had a staircase in your house, but the ninth step was weak, so you just painted it orange and got into the habit of stepping over it every time. But one night a thief breaks into your house and didn’t know about the orange step being weak, so of course he steps on it and falls halfway through the staircase and that’s how the cops find him. So he sues, because even a thief who breaks into your house has a “right” to a working staircase, and so you end up having to compensate him to return him to the point where he would have been had the staircase worked properly, which is to say, you have to give him all the items he would have stolen and somehow you have to waive his criminal liability, too. Is that justice? Maybe it’s just one step away from justice.

If you break into a store and steal products, are you entitled to warranty protection on those stolen products?

Is it possible for somebody to “break into” a country, have children, and thereby “steal” citizenship for their children? Should that be possible?

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The first link in a chain migration schema, there are those who don’t ‘break in’ they come as a visitor for the purpose of giving birth to a child citizen.

Maybe maternal citizenship should be the determinate.

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This is just a metaphorical fantasy with no relation to the reality of law or ethics. Theft is taking the property of another person without permission, with the intent to permanently deprive. Citizenship is not a property right, that should be the end of the discussion. (I know that in anarchist circles everything can be called a “property right”, so that you life or rights can be bought and sold on the open market, I would hope we are above those kind of delusions).

The idea that you have a legal obligation to maintain everything in your house in perfect working order because a thief might accidentally hurt themselves if you don’t mop up a spill, well that is just another Trump-level delusion. That is just not the way it works. It is true that you can’t set booby traps that decapitate trespassers, that is completely different. Nobody has a right to an ideal staircase, instead you as an actual host have a “duty of care” to your invitee (not to a trespasser) to exhibit ordinary caution. I dunno if the courts would consider an orange painted tread to be adequate warning, but if you’re not completely bizarre and you don’t pain your steps random colors, it is clearly an alert-sign of some kind.

Again, you suffer from a neo-Marxist delusion that the land that is within the jurisdiction of a government is in fact “owned” by the people of the country. Jointly, not severally. That stance means that there is no private ownership of land, instead (as is the case in socialist regimes like Tanzania), one can gain a lease on land for some period, such as 99 years, but you never own it. It’s only a few steps from there to full-blown communism where “the workers” own the means of production.

It is possible for two people to be born in the US, mate and have children, and thereby “steal” citizenship for their children? Since citizenship is not property, plainly no. Metaphorically, sure, it’s possible that the laws prevent people from being citizens until some threshold has been passed. For example, “must have citizen parents and grandparents, own at least 1 acre of land, and serve in the military for 10 years”. If you have no theory of “ought”, then nobody know what “should” be possible.

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26 minutes ago, DavidOdden said:

This is just a metaphorical fantasy with no relation to the reality of law or ethics.

There was an actual legal case in the UK a decade or two ago, where someone broke into a house, fell on a defective staircase, and was able to recover damages. But I don’t remember that case precisely, so I made up something similar.

I’m pretty sure this is the sort of thing that Trump would stand against, though; that’s my point.

28 minutes ago, DavidOdden said:

Citizenship is not a property right, that should be the end of the discussion.

Why? Are we supposed to just accept international law as it is, as if it were handed down from God, and that is the end of the discussion?

Even the Constitution itself is not the end of the discussion because we can ask whether the Constitution is right as it is, or whether it needs to be amended. By what standard do we decide whether the Constitution is right or needs to be amended?

How about reality, and what humans need in order to live in it, as the standard? Isn’t that what Ayn Rand would have recommended?

It would be interesting to see an explanation of what in reality makes the concept of citizenship necessary, and where in reality the concept arises from. Once we have that, then it becomes possible to determine what can rightly be done with citizenship.

32 minutes ago, DavidOdden said:

you suffer from a neo-Marxist delusion that the land that is within the jurisdiction of a government is in fact “owned” by the people of the country. Jointly, not severally. That stance means that there is no private ownership of land, instead (as is the case in socialist regimes like Tanzania), one can gain a lease on land for some period, such as 99 years, but you never own it. It’s only a few steps from there to full-blown communism where “the workers” own the means of production.

That’s not correct. When people join together to defend their property, they are not giving up their property rights. They are expressing them.

1 hour ago, DavidOdden said:

It is possible for two people to be born in the US, mate and have children, and thereby “steal” citizenship for their children?

It would only be “stealing” if they had no actual right to it. And that’s the question that needs to be answered here.

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50 minutes ago, necrovore said:

There was an actual legal case in the UK a decade or two ago, where someone broke into a house, fell on a defective staircase, and was able to recover damages.

We’re talking about the US Constitution and US law. England has kind of gone over the edge, more so than the US, though we are getting there.

51 minutes ago, necrovore said:

2 hours ago, DavidOdden said:

Citizenship is not a property right, that should be the end of the discussion.

Why? Are we supposed to just accept international law as it is, as if it were handed down from God, and that is the end of the discussion?

The underlying question is “what gives rise to the concept of rights?” and “what determines what ‘a right’ is?”. Rand has written a lot about the topic of man’s rights. Maybe the question you should be asking is whether a man can irrevocably sell his right to exist, allowing another to kill him at will.

52 minutes ago, necrovore said:

Even the Constitution itself is not the end of the discussion because we can ask whether the Constitution is right as it is, or whether it needs to be amended. By what standard do we decide whether the Constitution is right or needs to be amended?

We do ask whether particular regulations, statutes and constitutional provisions are right. All government action is judged by exactly one standard: does it protect the individual from initiation of force. If it does not, it is wrong. That is why we have been having these discussions, to see if certain laws are dysfunctional.

53 minutes ago, necrovore said:

It would be interesting to see an explanation of what in reality makes the concept of citizenship necessary, and where in reality the concept arises from. Once we have that, then it becomes possible to determine what can rightly be done with citizenship

Rand’s standard would focus on what is objectively necessary. I agree that we should ask if citizenship is even necessary, and certainly we can follow that side show as a way of avoiding the actually relevant legally insane pretense offered by Trump. I’m not sure what currently follows from being a US citizen: the right to vote in federal elections if you are old enough and not barred from voting for criminal conviction; to hold jobs and enter facilities that require citizenship (security-related, entering a SCIF); an unconditional right to re-enter the US. There is also an obligation, the requirement to serve on a jury. The security-related privileges are statutory and could easily be wiped away, also, citizenship is just a “baseline” requirement, a lot more is required for a security clearance.

So it really reduces to a question of “who should be allowed to vote?” (and why should they be allowed to vote)?

54 minutes ago, necrovore said:

When people join together to defend their property, they are not giving up their property rights. They are expressing them.

Any “agreement” requires actual agreement from all parties. There is no universal agreement by land owners in the US.

54 minutes ago, necrovore said:

It would only be “stealing” if they had no actual right to it. And that’s the question that needs to be answered here

So if nobody has a right to citizenship, but citizenship only relates to the right to voting, then the only problem is figuring out a decent way to select those individuals who will make laws, other than voting. For example, “objective merit” – given 2 candidate, the one who is “objectively better” gets the position. How is it determined that A is “objectively better” than B. All procedures for making choices require individuals who make that choice (tautologically). Choices do not happen by magic.

If you want, we can dispense with the word “citizen” and instead use the term “voter”, thus re-labelling the question to be “who gets to vote?”

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4 hours ago, necrovore said:

Is it possible for somebody to “break into” a country, have children, and thereby “steal” citizenship for their children? Should that be possible?

The children have their own rights, and if they grow up in a country they may fit better there than anywhere else.

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1 hour ago, DavidOdden said:

The underlying question is “what gives rise to the concept of rights?” and “what determines what ‘a right’ is?”. Rand has written a lot about the topic of man’s rights. Maybe the question you should be asking is whether a man can irrevocably sell his right to exist, allowing another to kill him at will.

I didn’t know that anybody was selling their right to exist and it is not my impression that such a policy is supported by anyone (including Trump).

1 hour ago, DavidOdden said:

All government action is judged by exactly one standard: does it protect the individual from initiation of force. If it does not, it is wrong. That is why we have been having these discussions, to see if certain laws are dysfunctional.

Sometimes it is debatable whether force is being initiated or whether it is being used in retaliation (i.e., self-defense). This distinction requires keeping the full context.

But also, citizenship is not a right (like the right to one’s own life is) and is different from rights per se.

Citizenship has to be obtained somehow, such as by birth or by naturalization. It can be obtained legitimately and it can also be obtained illegitimately. Some countries even sell citizenship, but I doubt they’d consider the sale valid if for example someone paid with stolen funds.

An election isn’t “property” either, but it can be “stolen.” (If you want to hold that it’s property, you’d have to say it belongs to the voters.)

2 hours ago, DavidOdden said:

Any “agreement” requires actual agreement from all parties. There is no universal agreement by land owners in the US.

Well theoretically they agree by not seceding, and they can disagree by seceding, as I have said before.

Government in general would not be possible if every law and every police action had to be supported unanimously. Sometimes people have to agree to disagree, and they have to try to persuade, and work through the system, and the system has to permit both of these.

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On 1/26/2025 at 2:15 PM, DavidOdden said:

So it really reduces to a question of “who should be allowed to vote?” (and why should they be allowed to vote)?

Well, there is voting.  More of an issue in these discussions seems to be entitlement to the goodies of a welfare state, which is a bit muddied since welfare statism shouldn’t exist in the first place.  There’s also the pretty extensive records our government keeps on all of its citizens (debts, obligations, criminal convictions, etc) and probably should be keeping on all of its citizens.  Such records certainly make it easier for us all to deal with one another.

If citizenship were restricted to meaning that the government knows who you are (and conferred no legal right to vote or receive entitlements) then not only would there be little incentive to deny it to anyone but there’d also be a very clear and objective criteria for its determination.

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1 hour ago, Harrison Danneskjold said:

If citizenship were restricted to meaning that the government knows who you are (and conferred no legal right to vote or receive entitlements) then not only would there be little incentive to deny it to anyone but there’d also be a very clear and objective criteria for its determination.

This is fairly true. The fact is that basic and real human rights are freely abrogated on the grounds that those rights only exist for citizens (or presumptive precursors to citizens), and that is wrong. Which has been the point all along. BTW even know, the government know who all sorts of people are and yet that are not citizens.

Now then,

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records our government keeps on all of its citizens (debts, obligations, criminal convictions, etc) and probably should be keeping on all of its citizens.  Such records certainly make it easier for us all to deal with one another.

The proper function of government is to protect individuals against the initiation of force, not to serve as a facilitator for litigation or an enabler of the curious. I would be so much easier for me to deal with others if I had access to their financial records and had real-time tracking information. Inevitably, this information gathering requires use of government force. You may want to dial that back a bit.

What exactly constitutes “knowing who a person is”?

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On 1/27/2025 at 7:07 PM, DavidOdden said:

The proper function of government is to protect individuals against the initiation of force, not to serve as a facilitator for litigation or an enabler of the curious. I would be so much easier for me to deal with others if I had access to their financial records and had real-time tracking information. Inevitably, this information gathering requires use of government force. You may want to dial that back a bit.

What exactly constitutes “knowing who a person is”?

I suppose I might want to dial that back a bit; yeah.  Good point.

I forget which lecture it was in, but at one point Greg Salmieri made a point about “menacing” in relation to anarchy.  He suggested that if one person simply pulls out a gun and shoots another, this isn’t an issue which just affects the two of them; it’s something that affects everyone else around them, as well.  I didn’t really get the point until I’d spent some time living in a homeless shelter, and now that I have I can certainly see how it relates to the necessity of having a government.
That very same point - that people need to know they aren’t going to have to encounter random acts of violence throughout the course of any given day - not only necessitates having a government in the first place, but also requires that this government know at least a few things about each of us.

How much it needs to know is a slightly more complex matter, and upon reflection I agree that it’s probably less than I had originally thought.  Enough to be relatively certain we’re not a danger to any random passerby at least, though.