January 31, 2011

Bill Introduced in Arizona challenges Birthright Citizenship
Fox News

"Arizona is expected to set off another seismic immigration wave on Thursday, when both chambers of its legislature expect to hear the introduction of bills denying citizenship to U.S.-born babies of undocumented immigrants. Republican State Sen. Ron Gould said he and Republican State Rep. John Kavanagh agreed on a day for each to introduce the legislation, but Gould said that timetables for consideration of the bills by the separate chambers will diverge at that point." (01/26/11)
 
Unfortunately, a site which reposted this story did so with the commentary-type headline “Idiot pols think state legislature can amend US Constitution,” demonstrating that even people who claim to be libertarian can be guilty of prejudice and incredibly fuzzy thinking.

As the article makes clear, and discussion over the past few months amplifies, there is a growing number of people who believe that the current interpretation of the 14th Amendment (an interpretation which dates only from about 1912 and was not accepted until much later (1982 - see the note), even though the amendment was ratified almost fifty years earlier) is wrong and was not intended by either Congress or the states. Therefore, this is not an attempt to bogusly “amend” the Constitution as the libertarian site claims, but similar to the action taken by Montana and other states in the last couple of years to reestablish states’ authority under the 9th and 10th Amendments and force the reevaluation of the federal government’s claims of power under (and interpretation of) the Interstate Commerce Clause (a claim also dating from the 1930s).

Therefore, this sort of off-the-cuff, contemptuous commentary (and ad hominem attack) on some Arizona legislators does no service to the cause of liberty. (Disclaimer: I’ve been guilty myself, a time or two, of such commentary, so when I point the finger at someone else, three more are pointing back at me. It can be great fun and emotionally satisfying to take a pot-shot like this without thinking about the issue or thinking of the impact on readers and those we are trying to persuade to agree with us. But that does not make it right, logical, or wise.)

It is also important to at least try and be consistent in our opposition to the state: this 14th Amendment debate should no more be suppressed than the debate over the “militia clause” of the 2nd Amendment. The argument hinges on how “jurisdiction” is defined and the intent of the amendment itself, which clearly was to recognize that “other persons” as originally addressed in the Constitution (slaves) were citizens.

For those interested, this is an extract from a opinion piece published back in August or July of 2010. The facts appear to be accurate. My additional comments are in brackets.

In fact, this alleged right [birthright citizenship] derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay [or do we?].

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court's Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern [AND even sleazier Northern] states 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. ...

Inasmuch as America was not [then] the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing 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."

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians -- because they were subject to tribal jurisdiction, not U.S. jurisdiction.
For a hundred years, that was how it stood, with only one case adding the caveat that children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

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 -- the one you've heard so much about over the years. [sarcasm, folks!]) Bouve was not a senator, not an elected official, certainly not a judge -- just some guy who wrote a book.

Why is this important? Yes, as Mama Liberty pointed out, it is closing the barn door while the barn is burning: the damage is already done, and it is too late for the dead Republic and Union. But one of the peripheral benefits of such a debate as this legislation is promoting is that we lovers of liberty have a chance to help people see that there is no alternative to government as usual - except one: liberty. Just as we lovers of liberty have gained allies, friends, and co-workers from similar fights over the 1st and 2nd Amendment (or indeed, have been converted to liberty because of the fights over these, and other lovers of liberty who helped us see they were just part of a much bigger war), so WE can win new friends and allies and co-workers in this fight over the real meaning of the 14th. Even better, we can use this to point out that “jurisdiction” at least implies voluntary and individual consent to a pact or compact - or even a Constitution. What a concept! But if we do not ourselves know the history, or if we dismiss things like this effort in Arizona with nothing but harsh words and contempt, we will have thrown away that opportunity.

Nathan Barton is writing this from somewhere in the West, where whatever freedom and liberty we have left in this nation can still be found, despite the efforts of so many haters of liberty.  Feel free to contact him through The Price of Liberty.