Yes, that’s because the Constitution is not a collection of laws. We look to case law for the edge cases.
Melania is illegal since lying on her visa application about education and employment. Also, chain immigration for Melania’s parents. Ann Colter is incensed.
Do you want quartering? Because that’s how you get quartering.
As Dirty Harry almost said:
Nuthin’ wrong with a little quarterin’. 'S long as the right people get drawn first.
Your parenthetical phrase above might be a good change to the 14th amendment. But at the same time, I would put in a second parenthetical or similar clause making clear that a narrowly tailored law against birth tourism is constitutional.
Without that amendment, I think there is a good case for the law proposed in the original post of this thread being constitutional.
Just to be clear, I am against that law ever being seriously proposed, let yet enacted.
Also, that is how you get stateless persons.
I think that the intended interpretation, without delving into minutiae and corner cases, is that anyone born in the United States is a US citizen. A birth certificate and proof of identity, or similar, should be enough to prove it. Nothing about residency or “loyalty” or quadruple citizenship or whatever.
I did not propose scraping the Constitution. At least, not in this thread (I might have said something kindly concerning parliamentary supremacy elsewhere).
If we are agreed that birth tourism is minor and unimportant, it isn’t worth losing votes over. And it SCOTUS overturns a narrow law against it – maybe on principle, more because Democrats were behind it – that ruling should be followed.
The parenthetical was for you. It summarizes the case law. As one example of several, here is the SC Elk case saying it in the negative: persons not subject to U.S. jurisdiction “at the time of birth” do not become citizens later except through naturalization.
As others stated above, the edges are in case law. That’s just how constitutional law is supposed to work.
Now, for fun, I’ll counter myself. Say it’s 1868 when the amendment passed. Millions of people became US citizens. Did anyone really do an analysis to see if, let’s say in 1802 when a person was born, if they were subjected to US jurisdiction then. I’d say no way. Born in US and subject to in 1868 was all that mattered.
What would get stateless persons is a poorly worked law. I do not see being against a proposed law on the assumption that it wouldn’t address an obvious problematic edge case that is hard to forget.
American Indians were hardly minutiae or a corner case. And yet the generally intended interpretation of 14th amendment article 1 was that this didn’t involve them.
If I can go back to this, you seem to be saying that the framers of the 14th amendment would have seen the law proposed in the OP as being a violation.
Is there any evidence for that?
I find it impossible to get into their minds concerning matters where easier international travel makes how one thinks about it so different. But, given the high uncertainly, it seems to be just as likely they intended for there to be a living constitution allowing new laws which might seem unconstitutional only with a highly literal interpretation.
To make a slightly bolder claim, some of them would not have thought their words should be regarded as addressing situations outside the scope of what they were trying to achieve. Most of them, or just some of them? We do not know.
It didn’t involve some of them. Some American Indians were subject to the jurisdiction of the US; some were not. As wit, well, pretty much everything involving legal the legal status of Native Americans relative to the US, it’s complicated.
Pretty much everyone in the US is subject to the jurisdiction of the US — as in, they are subject to the laws of the US, answerable to the US courts, etc. The only people who would obviously not be subject to the US would be visiting heads of state, foreign diplomats and their families and members of invading armies. If American Indians were treated as not being citizens, presumably this as on the basis that US law recognises some degree of sovereignty for American Indian nations, and some immunity from US laws as a result.
But the notion that someone is not subject to the jurisdiction of the US simply because they are entitled to a foreign citizenship is absurd. It flies in the face of the plain meaning of the words, and of the long practice of apply the law equally to all, regardless of whether they hold a foreign citizenship or not.
It’s fairly clear that the framers of the 14th amendment were focussed on how people acquired citizenship more than on how they might lose it. As already discussed, you can mount an argument that, on a strict reading, you can’t lose birthright citizenship at all, but the courts have long accepted that you can renounce it.
The law proposed in the OP tries to shoehorn itself into that established position by decreeing that certain people are “considered to have renounced” their citizenship, even if in fact they have done nothing of the kind and may indeed have expressly stated that they wish to retain it. I’m no expert, but I don’t think deeming a counterfactual as a way of depriving people of birthright citizenship is going to fly.
(I’d also point out that the suggested law is not well-adapted to address the concerns of those who are gunning for birthright citizens. They are not concerned about residents of other countries who have US citiizenship by virtue of having been born there. They are concerned about residents of the US who have US citiizenship by virtue of having been born there, but whose parents did not. The proposed law will not affect them.
That was not my intent. I was not saying that a person could lose their citizenship because they were entitled to claim citizenship in another country. I only referred to people who were citizens of another country and were living in that country.
To be clear, any US citizens who has a foreign citizenship and who lives in the country of that citizenship for 5 years is deemed to have “renounced” their US citizenship?
I can see a couple of objections,
First of all, the one already made - you’re creating a legal fiction to try to pretend that these facts come within the existing precedents on renouncing citizenship, when the reality is that they don’t.
Secondly, this produces the troubling result that whether someobody is a US citizen or not is actually determined by the citizenship laws of other countries. US citizenship is a “weak” status, which defers to the citizenships of other countries.
Finally, doesn’t it offend against the principle of equality before the law? A law that said that all US citizens who remain abroad for five years lose their citizenship would be one thing, but this law says that some do and some don’t. You’ve now got two classes of US citizen - first-class citizens, who can go abroad without fear of losing their citizenship, and second-class citizens, who can’t. Should a republic have first- and second-class citizens?
I’m going to suggest a principle here: US citizens should be neither advantaged nor disadvantaged in US law by the fact that they hold, or are entitled to hold, a second citizenship. US law and practice should simply ignore the second citizenship; it may affect someone’s relationship with a foreign state, but it is irrelevant to their relationship with the US.
I think you’re misunderstanding the question. I’m not saying that this situation currently exists. There’s no law like the one i discussed in the OP.
My question was whether such a law would be constitutional if it was enacted.
I disagree with this analysis. The situation I described isn’t the United States government taking the initiative to remove somebody’s citizenship. The situation I described is a person who was born an American citizen and resided in the United States leaving the United States to live in another country and obtaining citizenship in that other country. I feel this is a case of a person doing something not having something done to them.
There’s nothing about different classes of citizenship in anything I wrote. Anybody who wants to live in another country and wished to retain their American citizenship would be able to do so.
I think the two classes evolved out of the discussion on “US citizens living outside the United states for a long period of time” and “US citizens who hold alternative citizenship as well living outside the United States”.
The first group would be at risk of becoming stateless per the earlier discussion, while the second at least would have at least one nation to lay claim too.
Thus, two classes. USD1 argues that it prevents full equality in treatment for US citizens who choose to live abroad that don’t have alternate choices.
(just my read on the situation, I may be wrong, you may not agree, etc.)
I understand that. What we’re discussing here is a suggested law. My apologies if I gave any other impression.
That’s different from what you say in the OP. In the OP, loss of citizenship would result for anyone who “resides in another country for a period exceeding five years and is a citizen of that other country”. There’s a big difference between being a citizen of another country and obtaining citizenship in another country.
Under your first proposal, anyone born in the US who is a citizen of another country (most likely, by descent) would lose their US citizenship if they went and lived in that country for five years or more.
But those people would be fine under your second proposal. Your second proposal would affect US citizens who don’t have a second citizenship, but who move abroad for five years or more and then seek to be naturalised in the country where they live.
Effectively, this law would treat seeking naturalisation in your country of residence as a renunciation of your US citizenship.
Would it be constitutional? Not an expert but my guess is, probably yes, because this is something you choose to do, and it involves professing an allegiance which is not to the US.
But:
Why would it only apply to citizens born in the US? If a US citizen by descent, or by naturalisation, lives in another country and seeks naturalisation there, under your proposal their US citiizenship would be unaffected. Why?
Secondly, this isn’t a measure targetted against birth tourism. The great bulk of US-born citizens are not the result of birth tourism; they are born to US citizen parents, or to people who are in the US for reasons unrelated to the birth. In fact, the children of non-US citizen parents will to a signicant extent be unaffected by this law, since they will typically hold a second citizenship by descent; if they move to the country of their non-citizen parents they won’t need to seek naturalisation there.
There definitely is in this refinement of the proposal. You’ve got US-born citizens, who lose their US citizenship if they seek naturalisation in another country, and US citizens by descent/by naturalisation, who don’t. One group holds a form of citizenship that will survive naturalisation in another country; the other holds a form of citizenship that will not. That looks a lot like two classes of citizenship to me.
You could refine the proposal so that any US citizen who lives in another country for five years or more and obtains naturalisation there loses US citizenship; then the “two classes” objection would disappear.