President Trump caused quite a stir late last month when he announced his intent to sign an executive order ending birthright citizenship for U.S.-born children of noncitizens. Both sides of this debate cite legislative history and Supreme Court cases in support of their positions. Tonight, I’ll try to cut through the fog and lay out the issues clearly for you.
We start with the pertinent words of the 14th Amendment: “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States....” The immediate purpose of this provision was to reverse Dred Scott and make it clear that freed slaves and their children were in fact U.S. citizens.
But what do the words “subject to the jurisdiction thereof” mean? Proponents of birthright citizenship for the children of illegal aliens say it simply means that a person is legally required to obey U.S. laws and can be punished if they break those laws. This seems to me to read “subject to the jurisdiction thereof” right out of the Constitution. Of course anyone, except maybe diplomats, can be given a speeding ticket. I don’t see how that should confer citizenship.
It seems to me that the critics of birthright citizenship have the better argument – that “subject to the jurisdiction thereof” means that the person owes their political allegiance to the United States. Diplomats, as well as students and others here on temporary visas, do not owe their political allegiance to the United States. If they happen to give birth while here, their children do not owe political allegiance to the United States, either, and thus are not ‘subject to the jurisdiction of the United States’ as those words are arguably properly read. It is not controversial that diplomats’ children born in the United States are not citizens of this country.
Proponents of birthright citizenship point to statements made during the congressional debates on the 14th Amendment by Pennsylvania Senator Edgar Cowan who opposed the Amendment because, as he understood it, the amendment would give U.S.-born children of Chinese laborers and other noncitizens citizenship even though they did not owe allegiance to the United States. On the other hand, Senator Lyman Trumbull of Illinois expressly said that ‘subject to the jurisdiction of the United States’ included not owing political allegiance to another country. No wonder Justice Clarence Thomas doesn’t like legislative history and says cases should be decided by what is enacted rather than by what is intended.
This brings us to the dueling Supreme Court cases, none of which really decide the issue. This is because the issue of birthright citizenship for U.S.-born children of aliens not legally resident in the United States has never been squarely presented or squarely decided by the Supreme Court. All the cases involve some other fact pattern making the loose statements about birthright citizenship in those cases what lawyers call dicta – extraneous verbiage that does not have the force of law.
Proponents of birthright citizenship point to United States v. Wong Kim Ark, an 1898 case which made broad statements about “birth within the territory” but only decided that the children of lawfully resident immigrants are U.S. citizens. Proponents also cite Plyler v. Doe from 1982 which gave the children of illegal aliens the right to a public education, but the Court did this because the Equal Protection Clause of the 14th Amendment applies to all ‘persons’ in the U.S., not just citizens.
On the other side of the ledger, critics of birthright citizenship cite the 1873 Slaughter-house Cases in which the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” In 1884, the Supreme Court in Elk v. Wilkins denied the birthright citizenship of American Indians, saying being born in the territory of the United States was not enough to confer citizenship and that American Indians were not ‘subject to the jurisdiction of the United States’. This ruling was later changed by statute. There are other cases, but you get the idea.
Critics of birthright citizenship say the doctrine was cooked up by the State Department not all that long ago, and that what the executive branch has done can be undone by executive order. President Trump just recently reiterated his intent to sign an order ending birthright citizenship and said the issue would probably end up in the Supreme Court.
Estimates vary, but there are at least 4 million children of illegal aliens who have received birthright citizenship. The trend in other Western countries is away from birthright citizenship while, in our country, birth tourism has become an industry, with birthing centers for Russian and Chinese women making headlines.
My personal preference would be for Congress to settle the matter by passing a law. Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a uniform rule of naturalization, to say who and who does not get to be a citizen. Congress should step up to the plate, fulfill its constitutional duty, and settle the issue of birthright citizenship. The last stop in that process would probably be the Supreme Court, but at least the duly elected representatives of the people would have spoken.
5A Due Process: Caravan migrants sue Trump, claim he can’t shut down asylum process (statute arguably says he can)
5A Fundamental Rights: Supreme Court refuses to stop climate kids case, refers government to 9th Circuit for relief
Emoluments: federal judge green-lights emoluments case against Trump, opening door for critics to get his financial records
1A Religion: Supreme Court takes 40-foot war memorial cross case
Age Discrimination: Supreme Court unanimously rules age discrimination statute applies to state and local government units, no matter how small
14A Fundamental Rights: Anti-abortion amendments pass in Alabama and West Virginia; would criminalize abortions there if Supreme Court overturns Roe and returns autonomy on abortion to the states
2A: free speech claims may go forward against New York for pressuring banks and insurance companies not to deal with the NRA, federal judge rules
1A Compelled Speech: professor sues school that punished him for refusing to use transgender’s pronoun of choice
1A: federal court denies preliminary injunction against allegedly defamatory political campaign ad
1A: Massachusetts ballot question attempts to overturn Citizens United by establishing commission to propose amendments to cut corporate, union, and non-profit political spending
2A: Supreme Court again turns away challenge to California’s ban on carrying handguns in public
Equal Protection: “Jewish Trump Supporters Denied Service at NYC Restaurants” (issue of political bias in public accommodations is begging to get litigated)
14A Fundamental Rights: ordering invasive medical exams without parental notice or consent, after removing children from home on suspicion of child abuse, is unconstitutional (9th Circuit)
Rule of Law: lawlessness begets lawlessness; sanctuary cities beget caravans, violent protests beget wider intimidation, etc. (Victor Davis Hanson)
Kudos to Missouri store for creating giant sculpture of the U.S. Constitution to educate the public on the importance of having a document that sets our basic ground rules
‘Birthright citizenship’ is a creation of executive fiat – NOT the 14th Amendment - and can be reversed by Executive Order
1A: federal judge strikes down California law that required pro-life pregnancy centers to give information about abortion; Supreme Court indicated in June law likely unconstitutional
1A: Michigan appeals court vacates trial court order enjoining Facebook posts in neighbor spat; inappropriate, crude, and offensive language can be protected under 1A
1A: unions flouting Supreme Court Janus decision; requiring workers to opt out of forced dues, restricting opt-out periods, refusing to issue refunds, still representing workers who disagree with them
1A: Colorado Supreme Court goes against the grain in denying presumptive right of access to sealed criminal court records
Free Expression: don’t you dare call Muhammad’s practice of child marriage ‘pedophilia’ because that would be blasphemy and you would be a criminal, European Court of Human Rights rules
2A: evidence for current wave of gun control laws is weak; universal background checks don’t reduce crime and safe storage laws don’t reduce accidents
4A: police can’t detain people while developing ‘hunches’ about where to search
Eminent Domain: property rights activists disappointed Supreme Court turned away opportunity to limit Kelo; OK for Louisiana port authority to seize nearby competing private port
10A: Supreme Court soon to hear oral arguments in case where Virginia admitted its uranium mining ban is motivated by radiological safety concerns, an exclusive province of the federal government
10A: Trump-hating Dems discover the virtues of federalism
14A: class action against Tennessee revoking driver’s licenses for failure to pay criminal fines will proceed in part; long discussion of how 14A standards change when both equal protection and due process involved
Economic Freedom: why does a barber need a high school diploma and 1,500 hours of training? Tennessee law being challenged.
Trump has inherent executive authority and delegated authority from Congress to stop illegal alien caravan from entering U.S.
14A Due Process: Alabama Supreme Court affirms sentence for murder of unborn child, criticizes Roe v. Wade as patently illogical
1A: Supreme Court takes case with implications for social media; case tests whether a public access television network run by private operator is a free speech forum
Nationwide Injunctions: 9th Circuit panel appears skeptical of nationwide injunction barring Trump administration from issuing rules creating exceptions to Obamacare’s birth control mandate
1A: Oregon baker asks Supreme Court to resolve compelled speech question left over from Masterpiece
1A: Christian filmmakers argue before 8th Circuit that state’s order to ‘cover gay weddings or go to jail’ unconstitutionally compels speech in violation of beliefs
1A Religion: 7th Circuit finds no assault on religion in school district’s decision not to provide second Catholic school with busing.
2A: When do ammunition taxes, microstamping requirements, and ammo limits excessively burden the right to bear arms?
5A,6A: new conditions in written sentence handed down after sentencing hearing violate opportunity to be heard and right to be present at sentencing (5th Circuit)
14A Equal Protection: separate opinion blasts ‘tawdry and disreputable’ police tactic of stash house reverse stings, as race-based targeting
14A political bias in public accommodations: Ruby Tuesday restaurant in North Carolina denies service for Trump t-shirt; dollars went to Texas Roadhouse, instead
14A Property rights – Ohio owner wants homeless tent city on his property, city says it’s a zoning violation, neighboring apartment dwellers cite nuisance spilling over to them. Who should win?
14A Liberty Interest: Georgia judge writes in favor of a constitutional right to home-school (legal in most states, but by statute). What part of ‘children are not state property’ do you not understand?
Commerce Clause: Maryland asks Supreme Court to uphold its generic drug price-gouging law which 4th Circuit knocked down as attempt to regulate transactions beyond state borders
Economic Freedom: proposal from Louisville council members appears to renege on city’s agreement with food truck vendors reached in June
New book says America’s problems are not attributed to the U.S. Constitution which has performed well and shown remarkable staying power
Shame! Paul Krugman claims without a shred of evidence Trump will disregard the Constitution after the election, urges government officials to disregard Presidential orders. Go back to economics! #StickToYourKnitting
On Friday [Oct. 19th], the Supreme Court brought a temporary halt to the astounding climate kids case that was set to begin trial at the end of the month in federal court in Oregon. I say ‘astounding’ because the claims are absurd and the requests for relief are gargantuan.
In 2015, a group of 21 young people ages 10 to 21 filed suit against the federal government asserting a constitutional right to a sustainable environment. They allege that the government knew all about climate change but continued to promote the use of fossil fuels for another 50 years. This is not some random group of kids. They were organized by an environmental group, as you might suspect, and are proceeding under the stewardship of James Hansen, the former NASA zealot who has a reputation for exaggerating global warming and turning science into ideology. So here we have a phony made-up case by the Left and a left-wing trial judge more than willing to play along.
Where does a constitutional right to a sustainable environment come from, you might ask? Beats me. Earlier this month, the trial judge dismissed the plaintiffs’ Ninth Amendment claim. The Ninth Amendment to the U.S. Constitution states that all unenumerated rights are retained by the people. So far, courts have not been willing to treat the Ninth as a fountain of rights and have not declared any new rights under it. The closest we’ve come is Justice Goldberg’s concurring opinion in Griswold v. Connecticut 50-plus years ago citing the Ninth in support of a constitutional right to marital privacy.
More on the Ninth another day. But who needs the Ninth when you can use the Due Process clause of the 5th and 14th Amendments to declare new rights? Like when Justice Kennedy declared a fundamental right to same-sex marriage in the Obergefell case. Folks, it’s not the rule of law when courts can make stuff up and shove it down our throats. But this is exactly what the trial judge in the climate kids case may end up doing: declare a never-before-seen fundamental right to a sustainable environment and impose remedies one observer called “the complete restructuring of the U.S. economy.” The kids want the government to phase out all fossil fuels and reduce carbon dioxide in the atmosphere so that we can return to, what in their view will be, a stable environment.
To buy all this, not only do you have to believe in man-made climate change, you have to believe that it’s appropriate for courts to make national policy. The plaintiffs are requesting enormous changes that would completely upend national environmental and energy policy. Forget the elected representatives of the people, we’ll just run large sectors of the economy out of a single courtroom in Oregon, how’s that sound? And this, from the Left, which is always nattering on about ‘democracy’.
It’s not clear what’s going to happen. After the Supreme Court’s order on Friday [Oct. 19th], discovery and the trial are halted pending further briefing. The plaintiffs’ response to the government’s pleadings is due on Wednesday [Oct.24th]. Whether and when the trial will take place is up in the air, and we don’t know for how long. The Supreme Court has already greenlighted this case once, so it’s not immediately apparent what they’re driving at now. If the Supreme Court had an objection to the declaration of a fundamental right to a sustainable environment or to the broad sweeping remedies requested, they could have put a stop to this insanity the first time around. Maybe the Court will finally accept the government’s argument that the young plaintiffs lack standing because they can’t show any particularized injury from governmental policy any different from that felt by anyone else. Who knows? Stay tuned.
Trump snubs Feinstein and Harris, nominates 3 conservatives to ‘nutty’ 9th Circuit (Constitution news)
Trump snubs Feinstein and Harris, nominates 3 conservatives to ‘nutty’ 9th Circuit
1A: Atlanta settles with fire chief it fired for his religious beliefs for $1.2 million – “big win for the First Amendment rights of all Americans”
North Dakota voter ID law upheld by Supreme Court, adding to string of cases saying requiring ID is not ‘voter suppression’
1A: PILF cross-sues Virginia Department of Elections in case alleging PILF had intimidated voters by publishing noncitizen voting info; PILF argues it could reasonably rely on accuracy of government records
5A: Climate kids case to proceed to trial on due process grounds; Ninth Amendment claim dismissed. Judge believes climate change issue should be decided in court, not by the elected branches of government.
1A: Violent leftist mobs are not ‘protesters’; the damage they inflict is NOT constitutionally protected free speech or assembly
2A: Another reason to carry a gun: Parkland deputy argues he had no legal duty to stop the massacre.
4A: Part-time doctor who does not own the clinic where he works cannot assert a Fourth Amendment claim to bar search of the medical records of his patients
5A: amicus brief argues government should have to show by clear and convincing evidence that the person knows the password before the person can be compelled to decrypt computer records
Economic Freedom: Supreme Court knocks down 8th Circuit ruling which upheld Missouri licensing law requiring 1,500 hours of training for hair braiding
State Constitution: West Virginia in constitutional crisis; stand-ins for impeached supreme court rule that impeachment trial would be unconstitutional
State Constitution: Washington Supreme Court holds state’s death penalty unconstitutional (again); arbitrary and racially biased since black defendants more than 4 times more likely to be sentenced to death
Prominent historian rejects notion Constitution’s basic structure framed by issue of slavery; finds tension between large and small states much more salient
Justice Scalia’s finest opinion? Dissent in Morrison v. Olson continues to inform legal debates on separation of powers and unitary executive
The costs of the administrative state: unnecessary regulation has imposed major costs on the US economy, the separation of powers has been compromised, and erosion of the role of Congress threatens democracy.
Justice Kavanaugh likely to strengthen religious liberty, the right to bear arms, and limits on congressional and executive power.
Post-Kavanaugh: “It’s time to act like Americans once again.”
Shame! Dem Arizona Senate candidate on record as saying its fine for Americans to fight for the Taliban, America’s enemy.
CNN host Don Lemon showed his ignorance about the Constitution on national television this last week. He said it loud and he said it proud. The discussion was about the right to protest, specifically about an angry mob running Ted Cruz and his wife out of a D.C. restaurant. Lemon told his guest to “shut up” so he could pontificate about free speech:
Whenever and wherever you want. Don Lemon is flat-out wrong, as a matter of constitutional law. Free speech is not an absolute right. There are a number of well-established exceptions to the First Amendment right to free speech. You can’t yell ‘fire’ in a crowded theater (or in a crowded TV studio, for that matter). You can’t tell the enemy when our troop ships are set to leave. You don’t get to utter fighting words with impunity. You don’t have the right to tell falsehoods and ruin someone’s reputation – that’s called slander. You don’t have the right to lie under oath – that’s perjury and it’s a felony. You don’t have the right to incite violence or imminent lawless action. You don’t get to break windows at GOP offices as part of your right to protest – that’s a crime.
And you certainly don’t have the right to protest “whenever and wherever you want.” There are time, place and manner restraints that limit your right to protest. Every Tea Partier knows you have to obtain a permit to have a big demonstration on the National Mall. Every Tea Partier knows there are local ordinances that limit your right to protest. In my area, groups larger than 25 people have to get a permit to demonstrate. Smaller groups can’t block public sidewalks, you have to keep moving. You can’t protest on private property, like shopping malls or grocery store parking lots. Or in a restaurant, if the owner won’t allow it. The D.C. subway has rules, too. You can’t demonstrate inside stations, it’s too dangerous. You can’t block the entrance; you have to stay 15 feet away from it.
But Don Lemon has announced a principle: the absolute right to protest wherever and whenever you want. Let’s have a little fun with that, shall we?
I get to protest anywhere and whenever I want, right? I guess that means Don Lemon’s living room at 2 o’clock in the morning. Or a Democratic Socialists of America chapter meeting, or a Sunday service at an A.M.E church when people are trying to pray. Not just one Sunday, but every Sunday.
Now let’s talk about his own show. Don Lemon has a history of shutting off his guests’ microphones when he doesn’t like what they have to say. He did it to radio host John Fredericks and he did it to former Trump aide Jason Miller. In Miller’s case, Lemon specifically told him that being on CNN is a privilege, not a right. Apparently, consistency is not a requirement for being a CNN host. And they weren’t the only ones Don Lemon has silenced. He should be checked for Nazi tendencies.
But he announced a principle that I have an absolute right to protest wherever and whenever I please. I have half a mind to march into CNN’s studios, storm on to Don Lemon’s set with a few hundred of my closest friends and protest his history of antipathy towards free expression. Cut people off, how dare you.
Shame on Don Lemon for supporting mobs. Shame on him for invoking the Constitution when he clearly doesn’t know what he’s talking about. And shame on him also for thinking people only have a right to speak when it’s something he agrees with.
Trump administration loses another sanctuary city grants case; executive cannot place conditions on federal grants (separation of powers) or commander state employees to enforce federal law (10A)
2A: Misdemeanor DUI not enough to justify life-long gun ban; federal judge restores gun rights to nonviolent offender
14A: New California law requires certain corporations to meet quota of women on their boards; companies lost value under similar law in Norway; wrinkle here is gender identity, not biological sex
Returning to Congressional rather than judicial government will lower the stakes and avoid future bitter nomination fights.
Free expression: Leaked Google document - tech firms have lost their free speech culture and moved toward censorship
1A: gaming company personnel cannot be prohibited from making political contributions on the grounds that a legal industry is corrupt, federal judge in Pennsylvania rules
1A Religion: St. Louis can’t compel religious groups “to employ or house individuals who advocate for or perform abortions” contrary to their beliefs, federal judge rules
2A: CDC admits its gun injury data is unreliable, publishes it anyway; downward trend found by other researchers casts doubt CDC estimates
Eminent Domain: Supreme Court hears arguments in case testing precedent that takings plaintiffs must exhaust state remedies before filing in federal court
14A Discrimination: Study shows ‘Ban the Box’ laws protecting ex-offenders harm the chances of young black men getting a job
Dormant Commerce Clause: Wisconsin butter-grading statute is burdensome on Amish small-batch producers, but OK because it does not discriminate against out-of-state products, 7th Circuit rules
Dem Senator filed for injunction to block Kavanaugh vote; argued that failure to provide documents related to nominee’s tenure in the Bush administration hampered Senator’s duty to advise and consent
Be inspired: “Life-Long Cubs Fan With Down Syndrome Fulfills His Dream to Sing National Anthem”
Brett Kavanaugh is not a rapist; he’s a witch! You didn’t know that? I hereby accuse Brett Kavanaugh of Conjuration, Witchcraft, and dealing with Evil and Wicked Spirits.
He shall be tried in secret. Hearsay will be admissible. All accusations, no matter how unreliable – like his sexual encounters with demons - shall be used against him. He will not be allowed to defend himself. [American Criminal Courts: Legal Process and Social Context by Casey Welch, John Randolph Fuller] And there will be no presumption of innocence; In fact, he will be presumed guilty unless he can prove he is innocent. [Just a Family History by Glenn L. Bower, p. 206]
We heard a lot about the presumption of innocence during the Kavanaugh confirmation process. Tonight, I’ll tell you the story of the presumption of innocence and what can happen without it.
The history starts with the ancient Babylonian Code of Hammurabi which put the burden of proof on the accuser. The presumption of innocence was a feature of Roman criminal law. Today, the 5th and 14th Amendment Due Process clauses, by Supreme Court interpretation [Coffin v. United States, 156 U.S. 432 (1895)], protect the presumption of innocence. In our system, unlike the Salem witch trials, you are innocent until proven guilty.
The absence of the presumption of innocence is associated with some of the worst events in human history. In the court of the Spanish inquisition, for example, the accused were presumed guilty and it was up to them to prove themselves innocent. [Equity and Law by María José Falcón y Tella, p. 228] The Inquisition also tortured confessions out of religious and ideological opponents of the Inquisitors.
The trials of the French Revolution, if you can call them that, were patterned after the Inquisition – no jury, no compulsory process for defendant’s witnesses, and no presumption of innocence. [A Manual of American Ideas by Caspar T. Hopkins, 234-5] These proceedings were directed at political enemies. Wave after wave of revolutionaries were sent to the guillotine after falling out of power.
There was no presumption of innocence in the English Star Chamber. A finding of guilt could be based on the silence of the accused. [Presumption of Innocence in Peril: A Comparative Critical Perspective by Anthony Gray, p. 12]. The Star Chamber was used to control the king’s political enemies. [Criminal Evidence: Principles and Cases by Thomas J. Gardner, Terry M. Anderson, p. 175].
There was no presumption of innocence in the show trials of Stalin’s Great Terror [The Furies: Violence and Terror in the French and Russian Revolutions by Arno J. Mayer, p. 653]. Che Guevara, t-shirt boy for the revolution, perhaps said it best: “I don’t need proof to execute a man, I only need proof that it’s necessary to execute him.” He also said, “To send men to the firing squad, judicial proof is unnecessary … These procedures are an archaic bourgeois detail. This is a revolution!” This is a man who once wrote in a letter to his father, “I really like killing.” And so he did. Che personally supervised many executions while running Castro’s La Cabaña prison.
It’s no accident that these examples from history all involved political or ideological opponents. The presumption of innocence is one of the first casualties of a totalitarian mindset when political orthodoxy is threatened. So what are we to make of the fact that so many Americans now are willing to presume that Supreme Court Justice Kavanaugh is guilty, even though his accusers could provide no evidence, no witnesses, and no corroboration. Gang rapes at party after party – really? These are the same people who think nothing of suborning perjury and tampering with witnesses, to wit Leland Keyser who felt pressured to change her story to help her friend Christine Blasey Ford. If these totalitarians get their way, there will be more Salem witch trials ahead. No man or boy – or women or girl – will be safe.
I say we put Justice Kavanaugh on the rack until he confesses to his political and ideological crimes. It’s obviously sorcery that put him on the Supreme Court and we need an FBI investigation to get to the bottom of it.
10A: Trump Justice Department sues California to block state’s net neutrality law
5A: Philadelphia agrees to dismantle civil asset forfeiture scheme and stop ‘policing for profit’
4A: Amash claims human trafficking bill is cover for increased government spying on citizens without a warrant
States: Supreme Court turns away challenge to voter-approved amendment to Tennessee state constitution allowing abortion regulations; issue was technical (how votes were counted)
1A: Seattle bus authority engaged in viewpoint discrimination in rejecting Pamela Geller ads on global terrorism, 9th Circuit panel rules
1A: D.C. Circuit keeps Pamela Geller bus and subway advertisement litigation alive; transit authority must respond
1A: federal court strikes down Hawaii law compelling pregnancy centers to refer women to abortion providers
1A: town council resolution to boycott Nike after Kaepernick featured in ads is arguably unconstitutional
1A Religion: Muslim inmate claims prison violated Free Exercise clause when it denied him a Muslim meal
2A: Maryland Rite Aid shooting doesn’t fit the Left’s gun control narrative: shooter a transgender (not a white male); handgun purchased legally in a state that has universal background checks.
5A/10A: Supreme Court case tests whether states can prosecute people for the same offense charged in federal court; implications for Mueller probe and federalism
14A Due Process: Louisiana law requiring abortion providers to have admitting privileges does not unduly burden abortion rights, 5th Circuit panel rules
Copyright: authors call for Music Modernization Act and stronger international agreements to strengthen constitutional copyright protections
Book explores how constitutional government can be rescued from expansive administrative state
Book parses the meaning of the Habeas Corpus Suspension Clause; originalism does not come up short on protecting individual rights
Hmm... Deface or burn – decisions, decisions. Article traces the history of Supreme Court cases on the U.S. flag and Pledge of Allegiance
Shame! Senator Hirono thinks people with “ideological agendas” should not get the presumption of innocence. OK Senator, let’s start with you!
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