What's Wong in the citizenship debate? (01-22-2025--Hour2)

[00:00:04] What's going on? Thank you so much for listening to this podcast. It is heard live every day from noon to 3 on WBT Radio in Charlotte. And if you want exclusive content like invitations to events, the weekly live stream, my daily show prep with all the links, become a patron, go to thepetekalendershow.com. Make sure you hit the subscribe button, get every episode for free, right to your smartphone or tablet. And again, thank you so much for your support.

[00:00:28] So we're going over the birthright citizenship issue. Last hour, I kind of gave you the status of like the lawsuits, who's filed them, the standing issue and that sort of thing. Now we're going to go into sort of the meat of the matter and the legal disagreements, the arguments from both sides. So you can be fully informed when listening to idiots around your lunch table or dinner table.

[00:00:59] So the, well, okay, you may not, they may not be, they just may not know. Okay. They just may not know. So look, and I recognize that people are going to demagogue the issue. They're going to use all sorts of emotional plays in order to get you to shut up for simply discussing these things. And by the way, just as a, as a tactic, this is a helpful one.

[00:01:25] Um, when debating or, um, when I, when I say debate or arguing, I don't mean like in a, in a nasty way, just a discussion. When you have a discussion and you're talking with people about this stuff, um, reinforce with them that like, I may not agree with this, but here is the other side of this argument. Right?

[00:01:47] Right. So preface it by saying like, I'm not advocating this. I'm just examining it because all too often when people are examining and testing theories and arguments and such, the other person will hear you say something and think that this is what you believe in.

[00:02:05] And you may not actually believe in all of the components of the argument that you've just laid out. You're simply just testing. You're examining, you're thinking, you're thinking. I know it's a bit of a lost art nowadays, but when you're thinking these things through, it's imperative that you try to see the different angles and weigh the different arguments.

[00:02:28] So preface it by saying, you know, I'm not advocating this, but here's the, you know, here's this other argument. So how do we address this argument? Does it have merit? Right? Does this other argument make some good points?

[00:02:42] Does it not? What are the flaws in it? What are its strengths? Okay. So last hour, I mentioned a Supreme court case. And by the way, thank you to, I don't remember who it was who sent me the, um, sent me the, the, the, the case, uh, name, uh, which a couple of days ago, like last week or something.

[00:03:02] But, um, there is a, there is a, there is a, there is a presidential, not presidential, but precedent, precedential case. The Wong Kim Ark case. That's the guy's name. Wong Kim Ark. And this individual was born in San Francisco. His parents were Chinese citizens.

[00:03:27] At age 21. At age 21. Wong takes a trip to China. To visit his parents. When he comes back to the United States, he is denied entry on the grounds that he is not a U.S. citizen.

[00:03:46] This case made its way all the way to the Supreme court and the court ruled in a six to two decision in favor of Wong Kim Ark, asserting that he is a citizen because he was born in San Francisco, even though his parents were Chinese citizens.

[00:04:08] Because he was born in San Francisco, because he was born in San Francisco, because he was born in the U.S. and his parents were not, quote, employed in any diplomatic or official capacity under the emperor of China. The citizenship clause of the 14th amendment automatically made him a U.S. citizen. This case highlighted a disagreement between the justices over the precise meaning of the key phrase in the citizenship clause of the 14th amendment, which is subject to the jurisdiction.

[00:04:57] The 14th amendment affirms the 14th amendment, which is subject to the jurisdiction. By birth within the territory.

[00:05:12] In the allegiance and under the protection of the country, including all children here born of resident aliens with the exceptions or qualifications as old as the rule itself of children of foreign sovereigns or their ministers or born on foreign public ships or of enemies within and during a hostile occupation of part of our territory.

[00:05:36] And with the single additional exception of children of members of the Indian tribes, owing direct allegiance to their several tribes. So they gave a carve out. He was giving a carve out there like we're not talking about those Indians. It was the 19th century after all. So no, no, no, not that.

[00:05:54] The amendment in clear words and in manifest intent includes the children born within the territory of the United States of all other persons of whatever race or color domiciled within the U.S. Every citizen or subject of another country while domiciled here is within the allegiance and the protection and consequently subject to the jurisdiction of the United States. And if you think back like, oh, I don't know.

[00:06:24] So let's say after the formation of the country. So let's say like, you know, early 1800s, 1805, let's say people who came over. And I think this would have predated all of the mass immigration from Europe at the time. Right. With the potato famine and all of that stuff. Right. Ellis Island and everything.

[00:06:47] So I want to say like back then, if people came into the country, you know, like they sail on over and they they land someplace in like Florida. And they just like get in some wagons and head west. And then they have some kids along the trail. Maybe they make it to Oregon. I don't know. Maybe they die of dysentery. I don't know. But they they have their babies. They set up a homestead.

[00:07:17] And a little village. And now they built a town. And then it comes to city, whatever. So. Would those kids be citizens? Right. If they if the if the people that came over on that boat from wherever country they came from, it doesn't matter to me. But if they came over, landed in Florida, got in some wagons, proceeded west, carved out a piece of land for themselves. And then, you know, a bunch of other people are with them and they set up a town and whatever. And then they start having kids.

[00:07:47] Are those kids citizens? Right. Right. And at the time, it makes sense where the U.S. is like manifest destiny. We want to expand and all of this. So they would count them as citizens. They would say they're Americans. Right. I assume. But I wasn't alive back then. So I don't know. But if then they're not citizens. What about their kids? Right. Like what if the people of the town, one generation, two generations, three generations.

[00:08:18] Are all of them not citizens? Because it's not passed through the lineage. Right. Or the soil. So which is it? Like I. So this is the question that the Supreme Court was seeking to address here, saying, no, no. If they're born here, they're citizens, except the Indians, except the Native Americans. They again. Or they gave some other exceptions here to children of foreign sovereigns.

[00:08:46] So leaders or their ministers. So if you have like ambassadors that are from another country, they have kids here. That doesn't give you citizenship. You're just an ambassador here. Let's not get crazy. Okay. And then if there was like some occupied territory, if they lost some territory to, you know, let's say the French or something. The French. No. Okay, fine. That's a cheap shot. Sometimes I take it.

[00:09:16] Trump administration lawyers are likely to argue that Wong Kim are arc that that decision and precedent applied to specifically and only resident aliens, meaning lawful permanent residents. Resident aliens. Lawful permanent residents. Lawful.

[00:09:43] Lawful, meaning they came here correctly, followed the laws, right? They reside here permanently, but they have the government's blessing to be here. Hence the reason why Wong Kim arc was a citizen because apparently his parents were when he was born, at least lawful permanent residents. They were not illegal immigrants. So if you are an illegal immigrant, this is the test. You're not supposed to be here. You are not lawful.

[00:10:13] But there's another Supreme Court case from 1982. That's Plyler v. Doe. Here's a great idea. How about making an escape to a really special and secluded getaway in western North Carolina, just a quick drive up the mountain? And Cabins of Asheville is your connection. Whether you're celebrating an anniversary, a honeymoon, maybe you want to plan a memorable proposal, or get family and friends together for a big old reunion.

[00:10:36] Cabins of Asheville has the ideal spot for you where you can reconnect with your loved ones and the things that truly matter. Nestled within the breathtaking 14,000 acres of the Pisgah National Forest, their cabins offer a serene escape in the heart of the Blue Ridge Mountains. Centrally located between Asheville and the entrance of the Great Smoky Mountain National Park, it's the perfect balance of seclusion and proximity to all the local attractions.

[00:11:02] With hot tubs, fireplaces, air conditioning, smart TVs, Wi-Fi, grills, outdoor tables, and your own private covered porch. Choose from 13 cabins, 6 cottages, 2 villas, and a great lodge with 11 king-sized bedrooms. Cabins of Asheville has the ideal spot for you for any occasion. And they have pet-friendly accommodations. Call or text 828-367-7068.

[00:11:27] Or check out all there is to offer at CabinsOfAsheville.com and make memories that'll last a lifetime.

[00:11:32] Going over all of the information you will need to sound informed when you discuss the birthright citizenship issue, which is now going to wind its way through the courts after about two dozen blue states sued the federal government over Trump's executive order to upend the birthright citizenship that has been part of our society for over 100 years. I mentioned the first case.

[00:12:02] That was the Wong Kim Ark case. There's another Supreme Court case, though, from 1982. By the way, if you want to read more about this, I'm giving you sort of the highlights out of a piece at National Review by Jim Garrity. Can birthright citizenship be repealed by executive order? Spoiler, no. But anyway, the Supreme Court case from 1982 was Plyler v. Doe. And the court ruled in that case five to four.

[00:12:32] So a very split decision there, five to four. And they said whatever his status under the immigration laws, an alien is a person in any ordinary sense of that term and therefore were afforded 14th Amendment protections. Okay.

[00:12:51] Justice William Brennan, writing for the majority, said use of the phrase within its jurisdiction, that's from the Constitution, from within its jurisdiction, confirms the understanding that the 14th Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a state and reaches into every corner of a state's territory.

[00:13:22] Today's Supreme Court, Gary writes, today's Supreme Court might see the matter differently, though. It's also possible that the court might determine that while the definition of citizenship can be legislatively changed to exclude the children of illegal immigrants, it cannot be unilaterally redefined by the executive branch. And that's where I think I am on this at the moment. I am open to be persuaded.

[00:13:51] But right now, seems to me like if you want the law changed, I know I'm going to be a little bit consistent here. But if you want to change law, you have to change the law. It sounds weird, but that's how we there is a whole process for changing laws. In fact, we have people and we elect them and then we pay them to go to another city.

[00:14:17] They all meet together and we call them lawmakers and. They make laws and then the president has to sign it. And then once that happens, then it's a law. See, that's how that would work. So this is why I am not a fan of, in general, executive orders. I don't like them very much.

[00:14:40] I can agree with what an executive order attempts to do, but I don't like the mechanism because it gets us closer and closer to having a king. I don't want a king. I don't need a king. I don't need a sovereign. I don't need a mommy or a daddy telling me this is how we're going to run now for four years while I'm in charge.

[00:15:06] And if I if you like it, then put me back in and we'll stay on this path for another four years. Oh, but if I lose, then the next person who comes in, they're going to completely rewrite all of the stuff that I did. Oh, and they're also going to write a bunch of stuff that you don't like, and that's not going to have to go through a legislative process. Once again, I understand this may be a bit confusing to some people. I am being consistent on this. OK, so next up, Andy McCarthy, also National Review.

[00:15:36] He talks about Section 1401 of the Immigration and Naturalization Law. This is Title VIII under the U.S. Code. This is also going to be part of the of the debate. So you have the Plyler case, you have the the Wong case and you've got Section 1401.

[00:15:56] And it says that included among U.S. citizens is any person born in the United States and subject to the jurisdiction thereof. Right. That's the 14th Amendment. But that means the issue is not just what jurisdiction was understood to mean in back in 1868 when the 14th Amendment was adopted, but what it meant in 1952 when this statute, Section 1401.

[00:16:23] When the statute defining citizenship was enacted. So you can't only look at, well, what did they mean by the jurisdiction thereof? You can't only look at what the original writers of the of the amendment after the Civil War meant by jurisdiction. You also have to then look at the law that was passed by Congress in 1952. And you have to say, well, what did they mean by the jurisdiction? Because they cite it, too. And it seems pretty clear.

[00:16:53] All right. I hope you had a happy holiday season. But tell me if something like this happened at your house. Your family and friends are gathered around. Maybe y'all are in the living room. You're laughing, swapping stories, reminiscing. And then somebody says, hey, dad, remember those old VHS tapes? Did you ever get them transferred? And then the room gets all quiet. All eyes are on dad who says, oh, you know, well, I've been meaning to, but I just haven't gotten around to it.

[00:17:19] Look, don't let those priceless memories sit in a box for another year. All right. Create a Video has been helping families in the Charlotte area preserve their history since 1997. Simply bring in your old camcorder tapes and Create a Video will transfer them to a USB flash drive for just $14.95 per tape. You have a big collection? They've got a discount for you. And next year, instead of talking about those memories, imagine gathering the family to watch them together.

[00:17:47] Talk about a memorable gift. So do what I did. Trust the experts at Create a Video, conveniently located in Mint Hill, right off I-485, and online at createavideo.com. We're going over the debate about the birthright citizenship. This legal argument is now going to be tried through the courts, and I'm fine with that. That's what a democracy does. That's what self-government is about. We hear these arguments.

[00:18:17] We debate the arguments, right? And if you don't like this, by the way, then it kind of tells me that you don't actually believe in self-government, because this is what democracy looks like. Tell me what democracy looks like. Again, that's the Antifa chants that they usually do. Well, and to be fair, the Occupy Wall Street chants, the anti-Trump chants, like all of those marchers, they always do that chant. So you have the Supreme Court case, the original one, the Wong case, 1898.

[00:18:46] Then you've got a case later on in Plyler v. Doe. Then you have the law that was written, Immigration Naturalization Laws Section 1401. That was written in 1952, where they directly quote the 14th Amendment's person born in the United States and subject to the jurisdiction thereof. You'd have to figure out what they meant by that. They were quoting the 14th Amendment.

[00:19:10] Congress's codification of that language, and it did not need to include that in its law, but they did. That could be seen, could be argued. That's an expression of Congress's intent to exercise its constitutional authority to set the terms of citizenship, right? They're like, we see this in the Constitution. We agree with it. We're keeping it. We're putting it into the law.

[00:19:40] In a recent edition of the publication National Affairs, there were two scholars of the Constitution who took up this issue and debated it. They came to the same conclusion that Andy McCarthy came to over at National Review, which is that the Constitution does not decisively resolve the question and actually leaves it open to Congress. Not the president acting on his own, though. Birthright citizenship is a legitimate political and policy question, and it is a hard one,

[00:20:10] but that does not make it a question that is open to resolution by executive action. And once again, this is a problem that we have descended to where we expect the president to write law. No, Congress does that. Add it all up. Jim Garrity says this executive order looks like it has a steep uphill climb in the federal court system.

[00:20:35] Now, Ryan Williams over at Unheard.com makes the case for ending birthright citizenship and doing it this way, although I would point out that even he does acknowledge that it's going to be an uphill battle. He said the phrase at the center of this issue is subject to the jurisdiction thereof, known as the jurisdiction clause.

[00:20:58] Proponents of birthright maintain that the phrase merely means subject to the laws in the courts of the U.S. Yet the debates over the 1866 Civil Rights Act, the legislation that led to the 14th Amendment, also to the principles of the American founding, suggest a different interpretation.

[00:21:19] In 1866, the Act, the Civil Rights Act, was meant to secure the full benefits of citizenship for recently freed slaves and their descendants. And they were all black citizens, for that matter. The law's proponents were determined to convert it from legislation to constitutional text, so it would be harder to change by future Congresses, right? That prompted the 14th Amendment. Okay, so you can actually look at the legislative history of 1866 Civil Rights Act

[00:21:49] to inform us of what they meant by the 14th Amendment language. The 1866 legislation said, quote, All persons born in the United States and not subject to any foreign power, excluding Indians, not text. It's also in that one, too. Are hereby declared to be citizens of the United States.

[00:22:15] All persons born in the U.S. and not subject to any foreign power. Okay, a few months later, 14th Amendment gets debated. The floor manager, Senator Jacob Howard, described it as, quote, Simply declaratory of what I regard as the law of the land already. Namely, that every person born within the limits of the United States

[00:22:38] and subject to their jurisdiction is by virtue of natural law and national law a citizen of the U.S. This will not, of course, include persons born in the U.S. who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers. By the law of the land already, when Howard said that, he meant the recently passed 1866 Civil Rights Act.

[00:23:07] So, in such language from some of the 14th Amendment's chief proponents, we can discern the outlines of an argument that the jurisdiction clause meant more than merely being subject to the law and courts on U.S. soil. It had to do with a fundamental tenet of citizenship, which is loyalty or allegiance. He then talks about the Wong Kim Ark case, talks about the 6-2 decision,

[00:23:33] and Horace Gray, who wrote the majority opinion that I read portions of, and these concepts of jus soli or jus sanguin, meaning right of soil, jus soli, right of soil, or jus sanguin, which is right of blood. And he says, it's neither. Since the common law mandated birthright citizenship, the child was a citizen under the 14th Amendment, according to that ruling,

[00:24:03] the case remains the controlling precedent for the maximalist position on birthright citizenship, and it is cited by sympathetic judges and law professors on both sides of the aisle. But if you read the dissent in that case, written by Chief Justice Melville Fuller, he offers an interpretation of the 14th Amendment citizenship clause that is more consonant with American principles of just government.

[00:24:27] Fuller argued that the common law couldn't be the controlling authority because in separating from the British Crown, as America did, the American colonists had elevated the principles of the Declaration of Independence over the common law. The common law of England contemplated subjects owing perpetual allegiance rather than citizens of a government based on consent.

[00:24:58] And so Ryan Williams argues that Fuller was right in his dissent. The common law didn't come up at all during any of the debates in the 14th Amendment. The people that passed the 14th Amendment believed that the principles of the Declaration of Independence would control and, where necessary, overrule the common law of England. If human equality is a fact of nature, nature's law, natural law, human equality,

[00:25:27] then nobody may rule another without their consent. And everybody ought to enjoy their liberties and the pursuit of happiness alike, the existence of slavery, the ensuing crisis brought on by the conflicts between these principles and American practice and the subsequent Civil War are the historical context for the 14th Amendment, along with the 13th and 15th.

[00:25:52] American citizenship, defined constitutionally for the first time in the 1860s, was never based in blood. Right? Just sanguine. Never based in blood. But it was never based in jus soli, in the soil, either. American citizenship was based on consent. What does that mean? All right, if you're listening to this show, you know I try to keep up with all sorts of current events. And I know you do, too. And you've probably heard me say, get your news from multiple sources.

[00:26:22] Why? Well, because it's how you detect media bias, which is why I've been so impressed with Ground News. It's an app, and it's a website, and it combines news from around the world in one place, so you can compare coverage and verify information. You can check it out at check.ground.news.peat. I put the link in the podcast description, too. I started using Ground News a few months ago, and more recently chose to work with them as an affiliate

[00:26:49] because it lets me see clearly how stories get covered and by whom. The Blind Spot feature shows you which stories get ignored by the left and the right. See for yourself. Check.ground.news.peat. Subscribe through that link, and you'll get 15% off any subscription. I use the Vantage plan to get unlimited access to every feature. Your subscription then not only helps my podcast, but it also supports Ground News as they make the media landscape more transparent.

[00:27:18] Let's head over to the phones and chat with Bud. Hello, Bud. Hey, how you doing, Pete? Hey, I'm good. What's up? All right. Hey, I really like this discussion. You really are going into it in great detail. My thought was, and I know it's really difficult to modify a law, especially an amendment, but the modification would be a person born in the United States is automatically a citizen

[00:27:42] as long as at least one parent at least was already a citizen at the time of the birth.

[00:28:17] Right. And so there is an element of what Williams is describing as consent, and that gets to this, the argument that isn't right of soil. In other words, just because you're here, you're born here, or right of lineage. It would apply to a consent argument in that you want to be here, and so you come, but also the other element there,

[00:28:47] there has to be consent that the host country wants you here as well and permits you to be here, right? Otherwise, there's only, you need both parties to consent. Otherwise, it's not truly consensual. I agree, but I doubt that the Supreme Court will see it that way. And the argument is not in the law anywhere. Of course, I guess that's for the Supreme Court to decide. Yeah. Yeah, we'll see. But I appreciate the call, sir. Good to hear from you. All right. All right.

[00:29:17] Take care. Right. American citizenship, the argument goes, is based on consent. Wong Kim Ark, the Wong case, should be overturned, he says, and we should have a robust national debate about citizenship and immigration and national allegiance. Congress is well within its enforcement powers under Section 5 of the 14th Amendment to restrict birthright citizenship much more than it currently does. Right. So this is the key.

[00:29:45] Like, for example, children of foreign soldiers born on U.S. soil have always been excluded from the birthright citizenship in the same way that children of ambassadors and diplomats are also. Okay. And what Williams is arguing over at unheard.com, even under the Wong precedent, controlling emphasis was placed on the importance of Ark's parents being permanently domiciled in the United States.

[00:30:12] That's what made him a legal U.S. citizen was that his parents were here legally. They were here. They were allowed to be here. And so when they had a child here, the elements of consent are achieved. Basically, they're allowed to be here. And now he's a citizen.

[00:30:32] He says, let's update and apply that precedent to a world transformed by transportation technology that has occurred in the ensuing 127 years. And by the way, like I am open to that, too. Like that is that's a pretty important part of this. Also, these laws were written at a time when. Transatlantic trans-Pacific travel was very difficult. Right.

[00:31:00] It was hard to go long distances like this just to have a child. And, you know, so like nowadays, the, you know, birthing tourism has become a thing. He says, if you are not a lawful permanent resident, any children you may have in the United States are permanent residents with you, not automatic citizens. Right. Why not apply that designation? And then I got a message here. Actually, hang on.

[00:31:30] Let me see. It was on the Twitter machine. Hmm. Or no. Sorry. It was an email. Jay. He says, I was born in Germany while my dad was in the army. Even though I was born on a U.S. military base, my birth certificate was in German. When I was getting my security clearance for my time in the Navy, I had to renounce any claims to German citizenship. Who knew being born somewhere would impute citizenship? Yeah.

[00:32:00] Like, so if your parents are permitted to be here, you should, I mean, it seems logical that whatever status they have may very well apply to you because that's the element of the consent. Right. That the government has consented for you to be here. So if you are here on a tourist visa, then your child gets a tourist visa with you. Right. They don't get citizenship. They get a tourist visa.

[00:32:30] They get the same status that you do. Wouldn't that make it cleaner? Right. If I don't know, it's a compelling argument. So now I feel like we've got all the bases covered. I think, you know, the legal arguments about the birthright citizenship. Now, the executive order part of this, I have not found anybody that says that this is anything other than a vehicle to push the issue into the courts.

[00:33:26] I'm not. I'm gone. I'm gone. I'm gone. Thank you.