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As I said yesterday and clarify here in one thread, the "but Kamala's parents" trial balloon is not a good-faith legal debate. @DrJohnEastman can dislike the cases, but he can't rewrite them.
Here's why his @Newsweek article is problematic on the law. 1/22
Here's why his @Newsweek article is problematic on the law. 1/22
In π.π. π£. ππππ πΎππ π΄ππ, the 1898 case at issue, the question presented was "whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a
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permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause
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of the fourteenth amendment of the constitution: βAll 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.'"
Here is Wong Kim Ark.
https://prologue.blogs.archives.gov/wong-kim-ark/
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Here is Wong Kim Ark.
https://prologue.blogs.archives.gov/wong-kim-ark/
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The U.S. Supreme Court answered the question presented β which is the **holding,** not dicta β "in the affirmative."
I suppose you could argue that the holding is narrow and only applies to this particular case, but that would be both
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I suppose you could argue that the holding is narrow and only applies to this particular case, but that would be both
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disingenuous as a matter of con law β SCOTUS does not limit holdings to specific facts unless clearly stated β and incorrect, as later cases show.
Read ππππ πΎππ π΄ππ, which traces voluminous U.S. history on the matter, here:
https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089
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Read ππππ πΎππ π΄ππ, which traces voluminous U.S. history on the matter, here:
https://supreme.justia.com/cases/federal/us/169/649/#tab-opinion-1918089
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Dial forward to 1938. That year, the U.S. Court of Appeals for the District of Columbia heard a case Marie Elizabeth Elg. She was born in the state of New York to a Swedish mom and a naturalized U.S. citizen dad. At age 4, she moved to Sweden. When she was 21,
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she returned to the U.S., and the government tried to deport her. She sued, arguing that she was a U.S. Citizen.
Her case is πππππππ π£. πΈππ, and you can read the whole D.C. Circuit opinion here:
https://law.justia.com/cases/federal/appellate-courts/F2/99/408/1544373/
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Her case is πππππππ π£. πΈππ, and you can read the whole D.C. Circuit opinion here:
https://law.justia.com/cases/federal/appellate-courts/F2/99/408/1544373/
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The court said, no, the government cannot deport her.
Why?
Because, by virtue of being born in New York, she was a citizen of the United States.
The D.C. Circuit talks about the early United States and how it followed English common law; how that common law says
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Why?
Because, by virtue of being born in New York, she was a citizen of the United States.
The D.C. Circuit talks about the early United States and how it followed English common law; how that common law says
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that place of birth establishes citizenship, which is the "jus soli" doctrine that @Newsweek's Opinions editor, @josh_hammer, mentions; how Roman law was different (that's the "jus sanguinis" rule, which, the court explains, "depends upon the nationality of the parents
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and not upon the place of birth"); how that Roman law, though an interesting way to run a society, was "not the common law" (p. 410); and that, regardless, this was all cleared up with the 14A and the ππππ πΎππ π΄ππ case: "As a result of the adoption of the
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"amendment, whatever differences existed between statesmen and jurists on the general subject prior to the War Between the States was put to rest, and it may now be stated as an established rule that every person born within the United States (except in the case of
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children of ambassadors, etc.), whether born of parents who are themselves citizens of the United States or of foreign parents, is a citizen of the United States. In the Wong Kim Ark Case, supra, the whole question of citizenship is traced from its source and the subject
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"is so elaborately considered as to make unnecessary any further reference to this phase of the question."
In case you're thinking, "Well, maybe the U.S. Supreme Court reversed the D.C. Circuit," I have the answer β it didn't.
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In case you're thinking, "Well, maybe the U.S. Supreme Court reversed the D.C. Circuit," I have the answer β it didn't.
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The government appealed its loss in πππππππ π£. πΈππ to SCOTUS, and here's what SCOTUS had to say about Marie Elizabeth Elg:
"On her birth in New York, the plaintiff became a citizen of the United States." Fact. Full stop.
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"On her birth in New York, the plaintiff became a citizen of the United States." Fact. Full stop.
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Then, citing ππππ πΎππ π΄ππ, the Court stated, "In a comprehensive review of the principles and authorities governing the decision in that case β that a child born here of alien parentage becomes a citizen of the United States β the Court adverted to the βinherent
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right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.'"
To highlight: What is key is that
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To highlight: What is key is that
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SCOTUS describes its own decision, its own holding, and its own rule: "a child born here of alien parentage becomes a citizen of the United States."
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And if that wasn't crystal clear, here is the Court again at the end of that paragraph: "As at birth she became a citizen of the United States[.]"
So Marie Elizabeth Elg remains a citizen unless, the Court says, some treaty or statute says otherwise (which one
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![And if that wasn't crystal clear, here is the Court again at the end of that paragraph: "As at birth she became a citizen of the United States[.]" So Marie Elizabeth Elg remains a citizen unless, the Court says, some treaty or statute says otherwise (which one19/22](https://pbs.twimg.com/media/EfVCsSPUYAA4nP1.png "And if that wasn't crystal clear, here is the Court again at the end of that paragraph: \"As at birth she became a citizen of the United States[.]\" So Marie Elizabeth Elg remains a citizen unless, the Court says, some treaty or statute says otherwise (which one19/22")
So Marie Elizabeth Elg remains a citizen unless, the Court says, some treaty or statute says otherwise (which one
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could then litigate as unconstitutional), or until she voluntarily renounces her citizenship.
Read Perkins at SCOTUS here:
https://supreme.justia.com/cases/federal/us/307/325/
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Read Perkins at SCOTUS here:
https://supreme.justia.com/cases/federal/us/307/325/
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As I have said to @DrJohnEastman, @NancyCooperNYC, @josh_hammer, and @newsweek, there is no daylight in these cases. The holdings may be disappointing or frustrating, and one is free to argue *why* they are wrong β or to establish a brand-new country with
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brand-new rules based on Roman law β but you cannot throw out the entire canon of American constitutional law, which is based on principles, to better align with your thesis. That's just not how this works.
The Harris situation is indistinguishable.
22/22: fin
The Harris situation is indistinguishable.
22/22: fin
Post-script:
More with Professor Eastman. He commented at tweet 3. Because itβs kind of buried, here is that comment and my response. https://twitter.com/DrJohnEastman/status/1294116750816980993?s=20
More with Professor Eastman. He commented at tweet 3. Because itβs kind of buried, here is that comment and my response. https://twitter.com/DrJohnEastman/status/1294116750816980993?s=20
