Thursday, August 27, 2015

UC Irvine Law School Dean Tells Us to "Deal With It"on Birthright Issue

Erwin Chemerinsky

Today's Orange County Register ran its usual Erwin Chemerinsky  column, which I alternately refer to as "Thursdays with Erwin" or "Erwin's Law". Chemerinsky is considered by some to be one of the top constitutional scholars in the land. He is also the dean of UC Irvine's law school. personally, I think he routinely picks the liberal side of any issue and then argues why it is the constitutionally correct side of the issue. My greatest fear (outside of the Cubs never winning a world series before I die) is that Chemerinsky will be the next Supreme Court justice if Obama gets another pick.

Anyway, today, Chemerinsky tells us that those who don't like the idea of kids being born here to illegal parents automatically being US citizens. (anchor babies) need to "deal with it.".

Deal with it: Those born here are U.S. citizens
By Erwin Chemerinsky
August 27, 2015

My friend David Whitley takes issue with Chemerinsky's  article. He has written the below letter to the editor explaining why he thinks Chemerinsky is wrong and biased.

"It's quite troubling to see such esteemed academics as Erwin Chemerinsky essentially claiming that the American people simply gave away their sovereignty in 1868 to any invader who wishes to take it.  That's an absurd and unfounded conclusion.  Even more appalling is that he is teaching this anti-American non-sense to our children -- literally jeopardizing their future as a sovereign and independent nation.

Does anyone truly believe that the United States of America, its national government that controls immigration and naturalization has left to foreigners and invaders the decision as to who is a citizen of this nation?  Think about this. Could that argument be more insane.  Common sense, let alone the facts inform us that only Americans can birth Americans.  "Subject to the jurisdiction" does not apply to foreigners or aliens (invaders) or ambassadors as they are subject to the jurisdiction of their native land.

The 14th Amendment was in response to Dred Scott v. Sandford but was solely applicable to freed blacks and their children and their posterity and not to "all persons" as the native Indians who were born here and were neither foreigners or aliens were not citizens. Why? Simply because they were NEVER Americans, they were never subject to the jurisdiction of the United States (that changed in 1924).

During the Congressional debates, May 30, 1866, regarding the "Birthright citizenship Clause" of the 14th Amendment, the Thirty-Ninth Congress made it explicitly clear when Jacob M. Howard (drafter of the 13th and 14th Amendments) said "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States."  His words being common knowledge and succinct were left unchallenged. He went on to say, "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

Mr. Chemerinsky would do well to go to the original source of the controversy, the author himself rather than to try to piece together a puzzle using English common law, Blackstone's commentaries and some wayward Supreme Court decisions to mislead the American public away from the truth of the matter."

David S. Whitley
Irvine, CA

Fousesquawk comment:

We have two different interpretations of how the 14th amendment was worded.  This is an issue of public interest and should be thoroughly discussed and examined. It would not be a denial of civil rights to deny citizenship to children born here to foreign parents-especially if they are in the country illegally.

By the way, when I was stationed in Bangkok with DEA in the 1970s, our daughter was born there. Under Thai law, she was not entitled to Thai citizenship. In fact, their law had just recently been changed due to the large volume of Vietnamese refugees (boat people) who were in refugee camps in Thailand, and, in some case, having babies.

Final comment: I am not a big fan of Donald Trump. However, he has helped start up a real national discussion about illegal immigration. The people are angry, and they realize that this is an untenable situation. The politicians in Washington are going to have to take note. We are not going to simply "deal with it".


elwood p suggins said...

While the "anchor babies" themselves are of course blameless, I have never understood how it makes any sense at all for them to receive the great boon of U.S. citizenship due to illegal activities of their parent(s). This would appear to be particularly true in light of the comments of Jacob M. Howard. There may be some, but I cannot think of another example of being able to keep ill-gotten gains derived from illegal behavior. If it does not make any sense, which it doesn't, then it would appear most likely that the 14th Amendment was not intended to apply to these people.

Siarlys Jenkins said...

Yeah, that "anchor babies" term is all about foreign ambassadors fearing that the government that sent them over here will be overthrown in a coup, and having babies who will be U.S. citizens so they can stay here and keep their heads on their shoulders... See how easily your clueless letter writer's own words can be turned back on them?

...Chermerinsky writes like an ass, but it is very well settled law that born in the United States means born in the United States, but citizenship is not INFLICTED on embassy staff and such who are merely here to represent their country. It can't be changed by an open debate. It would take a constitutional amendment.

At the time the amendment was ratified, our immigration policies were wide open, we had a country to fill up, and hundreds of thousands of babies were being born every year to immigrant parents who had not yet been naturalized. Indeed, those babies, unlike their parents, were eligible to run for President of the United States someday.

It may not make sense to you elwood, but at worst it is an unintended consequence of the legal drafting language and the first case that presented the matter to the Supreme Court for interpretation. (Note: This happened long before President Obama was elected... even before President Jimmuh.)