What’s going on with the 14th Amendment?

Yesterday I read an article on the birthright 14^th amendment (which I truly believe Trump is using to get his base in high gear for the election and to keep the CNN opinion/new readers and watchers riled up and jumping off a cliff) which gave some fascinating background. I think it was from 2010—or at least a number of years ago since this pops up from time to time. It was by Ann Coulter, someone I rarely read since she also likes to get people riled up (during the 2016 campaign I think she supported Trump, but then turned against him; don’t recall the details). Anyway it provided historical background that was fascinating. I didn’t know any of it. In 2015 she did a scathing piece on the stupidity of Fox News on the topic of the 14th amendment, but in 2010, her piece was much more reasoned (if she can be called that) and detailed on anchor babies and it involved a footnote. http://www.anncoulter.com/columns/2010-08-04.html

“The 14th Amendment was added after the Civil War in order to delegitimize the Supreme Court's Dred Scott decision, which held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states [i.e. the Democrat party] from denying citizenship rights to newly freed slaves -- many of whom had roots in this country longer than a lot of white people.
The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: "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."
The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)
Inasmuch as America was not yet a massive welfare state, attracting malingerers, frauds and cheats, it would be amazing if the drafters even considered the amendment's effect on the children of aliens.
But they did.
The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly 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."

Coulter continues in the 2010 article:

“And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." (Other than the part about one being lawful and the other not.)
Brennan's authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, the Clement L. Bouve.) Bouve was not a senator, not an elected official, certainly not a judge -- just some guy who wrote a book.

So on one hand we have the history, the objective, the author's intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children of illegal immigrants.  

On the other hand, we have a random outburst by some guy named Clement -- who, I'm guessing, was too cheap to hire an American housekeeper. Any half-wit, including Clement L. Bouve, could conjure up a raft of such "plausible distinction(s)" before breakfast. Among them: Legal immigrants have been checked for subversive ties, contagious diseases, and have some qualification to be here other than "lives within walking distance."

Comments on the Berg-Obama legal standing case

American Thinker (article by Mark J. Fitzgibbons) stopped by to respond to D. who left a response here calling Mark J. Fitzgibbons an idiot (I had quoted him). The backstory is: dismissing a challenge to Obama's constitutional qualifications to run for President on grounds that a mere citizen does not have legal standing to sue. I couldn't find a photo of Mr. D., so I googled his image, finding this D shaped exit hole made by an Emerald Ash Borrer. So here's the response.

"First of all, thank you for blogging about the issues I raised in my piece in American Thinker, "Who Enforces the Constitution's Natural Born Citizen Clause?"

The comment of this person "d" neglects that my piece does in fact address and criticize Senator McCain's motion to dismiss for lack of standing.

This person "d" refers to himself as a lawyer, as in "we lawyers." "This" lawyers did address the importance of standing in my article. And I also address, without the luxury of space in that article, the fact that courts have given somewhat wider standing latitude when constitutional rights are being litigated. I know this from having written briefs in constitutional cases, including before the United States Supreme Court. I am also very much aware that the mere raising of a constitutional claim does not create standing. However, as my article does address, the court-made doctrine of standing should not preclude citizens from enforcing the Constitution in this case, and should not be assumed to be broader than the Constitution itself to the point that the Constitution may not be enforced by citizens, which certainly would be the opposite of the intent of that document.

Since I assuredly won't be asking "d" to be co-counsel in any case, I am not worried about his criticism of Mr. Berg's failure establish facts at the pleading stage in a manner consistent with evidentiary standards. Since the case was dismissed before discovery was had, we do not know whether the allegations contained in the pleadings lacked merit or not. And I know that "d," as one of "we lawyers," would be able to blog about the best evidence rule for all the people who have relied on FactCheck.org as conclusive evidence of Senator Obama's natural born citizen status.

Therefore, as you so aptly state, lawyers and judges do sometimes "use exactly the same law and/or regulation to mean the exact opposite if its intent." The Roman historian Tacitus wrote about that, and how it aided the fall of the Roman Empire. Indeed, the "inconvenience of facts," a term employed by "d," may have been avoided by resorting to judicial doctrines instead of the Constitution itself, which is why the decision in the Berg case has offended so many people."

Now if Mr. D. will just come back. I suspect he was an Obama-robo-spider, crawling the internet with pre-planned responses. Here, Spiddy, here Spiddy. Come and get it.

I revisited the original post at American Thinker and found 81 comments. I don't know if D dropped by to offer suggestions there or if he just picks on little old ladies. But the responses are well worth reading, if you have the time.

A mere citizen does not have legal standing to sue

U.S. Judge R. Barclay Surrick granted a motion by Barack Obama and the Democratic National Committee to dismiss a challenge to Obama's constitutional qualifications to run for President on grounds that a mere citizen does not have legal standing to sue.

Philip Berg, a Democrat and former Assistant Attorney General for Pennsylvania, brought suit alleging that under the Natural Born Citizen Clause of the U.S. Constitution, Obama is ineligible to be President.

Judge Surrick states that citizens may not sue to enforce the Constitution without statutory authorization from Congress. One question is, was Barack Hussein Obama born in Kenya, then his birth registered by his mother, a resident of Hawaii, when she returned home with him? He would still be an American citizen if born of an American mother in Kenya, but he would be ineligible to be President because his father was not a citizen. Or, is he a natural born citizen if he was adopted by his Indonesian step-father? Or if he has dual citizenship, can he be President? John McCain was not born in the United States, but both of his parents were/are U.S. citizens. His right was questioned on this basis, also. His father was in the military. However, other questions are about Obama's mother's residency, and because Hawaii wasn't yet a state (Barry Goldwater's eligibility was also a question because Arizona wasn't a state when he was born there). See Snopes. Also a 2nd law suit.

Mark Fitzgibbons writes a legal critique of Judge Surrick's ruling at
http://www.americanthinker.com/2008/10/who_enforces_the_constitutions.html

The enumerated powers of the respective branches of government are set forth in the first three articles of the Constitution. Article III states that the judicial power is vested in the courts, and "shall extend to all Cases, in Law and Equity, arising under this Constitution . . ."

A case about whether a candidate is a natural born citizen seems quite clearly to arise under the Constitution, and thus within the exclusive domain of the courts. Under the language of the Constitution itself, there appears to be no need for Congress to pass a law authorizing individuals to file suit, or for courts to hear such challenges. In fact, there may be a separation of powers issue if Congress were to attempt to legislate broader or narrower access to the courts to hear constitutional challenges. That could infringe on the jurisdiction of the courts "to all Cases . . . arising under this Constitution."

Secondly, the enumerated powers of Congress under Article I do not extend to dictating who may have standing to sue under the Constitution. One may argue that Judge Surrick relied on what some believe to be the catch-all "Necessary and Proper Clause" in Article I, Section 8[18]. That authorizes Congress:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Judge Surrick, however, never cites to that clause as his reason. Indeed, it would be inherently dangerous to our freedoms if Congress could dictate who can and cannot sue to enforce the Constitution.

I think the NYT questioned McCain's status as "natural born" which would certainly put all military, business and missionary children born abroad with a problem; I can't seem to find the Obama case or questions (there are several in his case) in NYT.

"A February NYT article raised the question as to whether McCain, who was born in 1936 on a U.S. military installation in the Panama Canal Zone, satisfied the constitutional prerequisites to become president. Article II, Section 1 of the Constitution requires a president to be a “natural born Citizen.”

“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively, told the NYT. “It is not a slam-dunk situation.”

Maybe not. But it appears lawmakers are doing all they can to try to put the issue to rest. “It is silly for anyone to argue that Senator McCain is not eligible to become president,” said McCaskill in a written statement. “I would hope that this is something we can all agree on, for goodness sakes.”" WSJ Law Blog

Maybe the New York Times only questions the military's right to be natural born?

Via Conservative HQ