On President Trump's first day back in office, once again as predicted, he signed a heap of executive orders which have immediately culturally jolted the United States further to the right. If Elon Musk's Nazi Salute at the inauguration (which he did twice in case you didn't get the message the first time) wasn't enough, then executive orders which are policy in action, should have made the point loud and clear.
The President on Day One, withdrew the United States from the World Health Organisation, pardoned more than 1500 people for their part in the January 6th Insurrection (which kind of proves that it was absolutely an insurrection), and signed an executive order which at more than 700 words long, removes the birthright of children who have been born in the United States, to citizenship.
Now obviously this was always going to be controversial because citizenship has been part of the increasingly white nativist agenda now for more than 10 years. Trump came to power in the first place, because he questioned Barack Obama's citizenship despite the fact that Obama was born in Hawaii. That sparked off a bunch of dog-whistling and now the whistling has become so much of din, that any opposing voices are legally drowned out. Let's not pretend that this is about anything other than fragile white people who have been emboldened to become explicitly racist.
The mechanics of birthright citizenship are such that a child born in the United States, is automatically a US Citizen; regardless of the status of their parents. The other weird mechanics of this are that if a child is born anywhere in the incorporated territory of the United States then the child is automatically a US Citizen, but if a if a child is born in an unincorporated territory of the United States then the child is automatically a US Citizen; thanks to the insular cases from SCOTUS which were passed before 1930. To take this to its extreme, a child born in Puerto Rico might not be a US Citizen even though Puerto Rico even has an Observer Member in the House of Representatives, but a child born on Palmyra Atoll which currently has a population of nil but is administered by the Department of the Interior, would be.
Naturally, this set of mechanics is known and openly abused. People wishing to gain entry to the United States know that if they do what comes naturally and have a baby, and then have that baby on United States' incorporated territory, that that baby is automatically a US Citizen; regardless of the status of their parents. Then is US Immigration and Customs Enforcement (ICE) officers arrive and try to deport someone who might have arrived illegally or overstayed their visa, they are in a pickle because that means having to deport a US Citizen by virtue of them having gained that citizenship through no other process than simply having been born.
Yes, the law is stupid; but has Horse has been at pains to point out in many posts about the US Constitution, the US Constitution is frequently stupid. So how did we get here? Yet again the apple of racism hasn't fallen very far from the tree at all; and in this case the nation conceived 'in liberty' as a tax dodge which was trying to keep and retain slavery, is the ultimate reason why US birthright citizenship exists.
The words to Section 1 of the Fourteenth Amendment to the US Constitution read:
https://constitution.congress.gov/constitution/amendment-14/
SECTION 1
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 wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Section 1, 14th Amendment to the US Constitution
All of this sounds good and reasonable and proper, except looking through the lens of 156 years of hindsight. If "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" and the first clause has already stated that "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 wherein they reside" then it US birthright citizenship looks pretty watertight. So why is it here?
The two important dates which accompany 14A tell the story excellently. 14A was passed by Congress on June 13, 1866, and then ratified on July 9, 1868. This means that we are squarely in the era of reconstruction which followed the Southern War Of Aggression To Further Keep And Retain Slavery, after seven southern states seized Federal assets and Forts, following the election of Abraham Lincoln as President, who did not want any more slave states as the United States expanded to the west. Four years of unpleasantness followed and the United States between the two warring factions of "Yay Slavery!" and "Boo Slavery!" decided to turn hundreds of thousands of its own citizens into chunky marinara to prove the point. After the disagreement, there was the problem of what to do with all the people left over.
Before 1868, there was no directive whatsoever about who was a United States' Citizen and as the States themselves kind of had plenary and very punitive powers within their own borders, by the time of the Southern War To Keep People As Chattel Goods, no fewer than thirteen states had already decided that not only were slaves not citizens and not entitled to due process of law, but in some cases they were also not people at law. This caused something of a problem when trying to refashion two parts of a broken nation back into one.
So for a short period of time, an amazing amount of reconciliation work at law was done; part of that work included 14A; which was intended to give former slaves and people who were considered to be chattel, citizenship and some kind of recognition and protection at law.
So here's the central quandary. Legal problems often have long tails. In this case, that long tail and expansive wording has created a set of conditions 150 years' later; which the framers of this piece of legislation neither thought of, nor bothered to care about.
President Trump's executive order is blatantly unconstitutional. There is no other way to say this. The other side of the coin is that he simply does not care. In just one day he proved that his oath to "faithfully uphold and execute the constitution", was a lie and is worthless. With a toady sycophantic Congress and an equally permanent toady sycophantic 6-3 SCOTUS, this is likely to remain unchallenged.
However none of this, questions the fitness of law for purpose. S1.14A is clearly bad law. If that is true, could there be better law? Yes; very yes.
The mechanics of the Citizenship Act 1949 in Australia are such that children who are born here do not automatically have birthright citizenship. For the vast majority of children born here, where one or both of their parents are citizens, they too are citizens. The big material question is whether or not their parents have been citizens for ten years or more. Even a child born in Australia to migrant parents, where neither of their parents are citizens, is entitled to citizenship upon their tenth birthday. The United States, in attaching citizenship to the Constitution and with a set of hard blanket clauses, is stuck with this.
The other weird thing about this is that the nexus of bastardry is such that the same people who howl that S1.14A is out of date, will then turn around and defend 2A despite the fact that it is 76 years older and by action gives rise to nearly 40,000 deaths per year.
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