Lindsey Graham is making noise by proposing an amendment that would deny U.S. citizenship to children of illegal immigrants.
Such an amendment might not, in fact be necessary. The Fourteenth Amendment says that "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 Supreme Court, if memory serves, has not ruled on whether illegal immigrants are "subject to the jurisdication" of the U.S.
Moreover, as scholars like John Eastman have noted, the Supreme Court was mistaken when it declared that the Fourteenth Amendment awarded citizenship to the children of foreigners.
When pressed about whether Indians living on reservations would be covered by the clause since they were "most clearly subject to our jurisdiction, both civil and military," for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that "subject to the jurisdiction" of the United States meant subject to its "complete" jurisdiction, "[n]ot owing allegiance to anybody else."  And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean "a full and complete jurisdiction," "the same jurisdiction in extent and quality as applies to every citizen of the United States now" (i.e., under the 1866 Act). That meant that the children of Indians who still "belong[ed] to a tribal relation" and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude "Indians not taxed," as the 1866 Act had done, was rejected as redundant.
Eastman gives a good account of the broader argument. It is well worth reading his full essay. The Supreme Court need only apply the law that the people ratified in order to do what Graham wants to do with an amendment.
One of the many ironies of the current situation is that, on the right, there is a mismatch between the stridency of rhetoric and the radicalism of policy proposal. The more established conservative media figures often have an unusual relationship to policy. Their policy bark is more radical than their bite. In Liberty and Tyranny, Mark Levin is highly critical of Social Security and Medicare as bankrupting statist projects designed to tie down the people. His main policy proposal is to fight against nationalized health care. In Arguing with Idiots, Glenn Beck took a similar path. He bashed the NHS, Michael Moore and pointed out how Medicare's actual costs have far outstripped the initial cost projections. As a positive program, he mentioned some information technology and productivity enhancing developments but there was little on policy.
Neither guy came out for the actual repeal of Medicare (though Levin seemed to make an implicit argument for allowing younger people to somehow opt-out of Medicare.) The focus is less on undoing the resented past, than to prevent the next state intrusion into medicine. Medicare isn't going away, but we can learn from the problems of Medicare to stop nationalized health care. The result is a combination of rhetorical maximalism and policy stand patism. The result is also a ratchet effect in which conservatives resentfully acquiesce to the last expansion of state power over health care and do battle against the next one, and then, when that fight is lost, throw up new defenses against the next statist proposal. The result seems to be the super slow motion government takeover of health care.
I'm not singling out Levin and Beck. This strikes me as having been the general position of most conservatives since at least the mid-90s. I'm irritated at hearing liberals argue that Obamcare's (at least it's current iteration) combination of individual mandates, coverage mandates, and subsidies was the conservative position on health care reform because similar proposals had been floated by some guy at Heritage, Orrin Hatch and Mitt Romney. Just because a position was taken up by some think tank guy I never heard of, an FOTK (Friend of Ted Kennedy) Senator I didn't care about, and a politician I never trusted didn't make it the conservative position. I knew what I thought, what the other conservatives I talked to thought, what I read, and what I heard and saw in the broadcast media. The conservative position was that government involvement had gone too far already and , minus some tweaks like tort reform and (later) interstate purchasing, the government should leave the private health care system alone.
This defensive mentality creates a situation in which whenever liberals move policy closer to government-run health care, they win and when they fail, they don't lose - because policy doesn't go backwards. This has implications for the future of Obamacare. There are structural reasons to think that Obamacare won't be repealed anytime soon (though Republicans should try.) The danger is that, five or seven years from now, conservatives will have come to a resentful acquiescence of Obamacare and thrown up a new set of defenses that will be worn down over time as the current iteration of Obamacare makes existing problems of medical inflation worse. Based on the experience of Massachusetts, it is reasonable to expect that Obamacare will lead to an even faster increase in insurance premiums. This will, over time, lead liberals to advocate for some combination of price controls and a government-run insurance option that will crowd out private health insurance. Conservatives will point to the problems caused by Obamacare as a reason not to go further in the direction of government-run health care. They will be right, but a merely defensive policy position will be overrun. The premium increases really will be unsustainable and liberals will only have to win the policy battle once. A mere repeal of Obamacare strategy will also be problematic because with premiums much higher than at present, people will be terrified of losing guaranteed issue and government subsidies in the hope of declining insurance prices that might never happen.
If conservatives really want to stop a government takeover of health care, they (and I don't just mean some think tank nerds and Paul Ryan) are going to have to go on the policy offensive and popularize the arguments for a more free-market driven health care system and a series of policies that will help people of low income and preexisting conditions participate in such a system. It means more than just undoing Obamacare, it means creating a more free market health care policy than we had before Obamacare. This strategy will have to be specific. It will have to offer real world benefits and be constructed in such a way that it can be implemented a little at a time with victories here and there that increase the number of health care consumers that act like health care customers and are better off for doing so. We should move to a strategy on health care in which winning means more than temporarily not losing.
The Civil War & Lincoln
In celebration of Alexis de Tocqueville's 205th birthday, today, July 29. Standing against the French Revolution, the author of Democracy in America wrote what is likely the best book on modern democracy, the character it gives rise to, both virtues and vices. Whether it is the greatest book on America is problematic. Does not Tocqueville fail to appreciate the profundity of the American Founding, the danger of hard (as opposed to soft) despotism, and the significance of the Civil War and hence a common citizenship in combating the racial divide? Does he misleadingly conceive of equality as primarily a historical force and not a description of man's in-between status, his suspension between beastiality and divinity? Yet his appreciation of the strengths of civil society--in particular religion, associations, and the family--stands out among students of America.
My reservations concerning Tocqueville notwithstanding, Harvey Mansfield's brief book provides profound guidance about the primary source.
The Standard links to Paul Ryan on Hardball. Matthews is banging the table, as are his fellow Democrats, and Democratic operatives, that it is fair to raise taxes on people who make more than $250,000 per year. In the abstract that rings true. Ryan replies by noting that those taxes, in fact, hit small businesses because of how our tax system works.
Would it be worth noting that the tax rate for such people will be raised to roughly 40%> (In 1995, Americans said that taxes should top off at 25% for people making $200,000 per year Here's some recent related polling.) I suspect that pointing out that the effective tax rate for the wealthy in places like New York is getting close to 60% would be worth noting.
Literature, Poetry, and Books
Literature, Poetry, and Books
are by Carl Scott in this thread over at Postmodern Conservative.
On a related note, while I think that it is perfectly predictable for conservatives who feel offended by cynical accusations of racism to seek to respond in kind, I don't think it is effective except as a form of therapy. The cries of racism (to the extent they are insincere) have two purposes. The first purpose is to change the subject. This excerpt from Journolist gives some idea of the mentality at work. Even if it doesn't totally work, it creates a kind of secondary conversation that puts the Left's critics on the defensive. It is designed to produce news programs structured like this: "Up first tonight, why is Obama's health care plan not popular? And later, exactly how racist are President Obama's opponents?" The second purpose is to reinforce Democratic margins among African Americans (and to a lesser extent other nonwhites.)
Responses that accuse liberals, Democrats, Obama supporters etc of racism just don't work. They are mostly aired on conservative-leaning media so the target audience for the original racism accusations don't really hear them. It doesn't lead to deterrence. Cynical liberal activists and organizations would much rather be talking about who is and isn't racist than about how Obamacare (based on the experience of Massachusetts) will tend to increase premiums. Conservative accusations of liberal racism don't hurt the feeling of liberals, don't make it less likely that they will engage in this behavior in the future, and don't win over new people to center-right politics. It does seem to make some people feel better.
The idea isn't to stop these kinds of accusations. It isn't up to us to stop them. It isn't our choice to make. The idea is to defeat the people who make them and then let them rant as they please. The best way to defeat them is to stigmatize those accusations as defenses for policies that hurt Americans of all races, as defenses for politicians who are hurting Americans of all races, and to offer specific alternative policies that offer real life improvements to people of all races. And find ways to make those arguments to people who don't consume much right-leaning media. Of course this means (as a necessary but insufficient condition) that you have something real to say - so don't look at the folks running in Arizona Republican senatorial primary for guidance.
So I got around to watching the Arizona Republican senatorial debate on youtube. Whoa. Here is my snarky summary,
Moderator: Have at it gentlemen.
Hayworth: I'm a consistent conservative
McCain: I'm a Reagan conservative
Deakin: Neither of you are conservatives. Get back to the Constitution. And repeal the Sixteenth Amendment.
Hayworth: You were for amnesty and are making mean personal attacks.
McCain. I was never for amnesty and you appeared on an infomercial for free government tax money.
Deakin: Hi. I'm Jim Deakin.
Hayworth: You sponsored earmarks.
McCain: No you sponsored earmarks.
Moderator: Senator McCain, didn't you sponsor an amnesty bill in 2007?
McCain: These are not the droids you're looking for.
Hayworth: McCain's amnesty will cost 2.6 trillion dollars in health benefits for illegal aliens.
Moderator: So health care. Whats up with that?
Deakin: Get government out of Medicare and make it state-by state [so help me God thats what he said].
Hayworth: I love Medicare. Vague, one sentence mention of market based reform that is totally incomprehensible to anyone who doesn't have a very clear memory of the bill establishing Medicare Part D. John McCain's amnesty is bad for Medicare.
McCain: Obamacare will destroy Medicare. No cuts in Medicare.
Moderator: And specific policy proposals for improving health care policy?
Crickets: Chirp, chirp.
Moderator: So what about working across the aisle?
Hayworth: You won't see me at any Georgetown cocktail parties hanging out with network news anchors.
McCain: I'm really against earmarks. I'm the anti-Ms. Congeniality sheriff of being against earmarks. That will get us the trust of the American people.
Deakin: Both of you guys voted with the other party to impose capital gains taxes on songwriters and bring light rail to Arizona.
Moderator: So what about taxes and the deficit?
McCain: I was against the Bush tax cuts because I wanted spending to be under control first. Spending isn't under control and I'm against repealing the Bush tax cuts. Also cut corporate taxes and hold off [presumably cut] payroll taxes.
Hayworth: McCain is a Bush tax cut flip flopper.
Deakin: They both love the PATRIOT Act better than the Bush tax cuts and that is why the tax cuts aren't permanent. Cut taxes more and get rid of free trade agreements.
Moderator: So what about defense cuts or other cuts to reduce the deficit? What would you cut?
Hayworth: Here is what I won't cut. Fight terror, especially on the southern border. Stop Obamacare, and use unspent TARP and stimulus funds for the deficit. And no amnesty.
McCain: Stop overruns on defense programs. And there will be lots of jobs for defense industry firms in Arizona. Just say no to pork.
Deakin: Don't have military bases in countries just because it feels good to have them there [I'm not kidding. He said that.].
Moderator: So what about unemployment and job creation?
McCain: Extend unemployment benefits based on a clean bill. Cut corporate taxes. I'll make sure Arizona military bases and defense industry firms get plenty of federal money.
Deakin: Don't extend unemployment benefits. Cut regulations [no specifics] and end free trade agreements.
Hayworth: Did I mention that I voted for the Bush tax cuts?
This debate was really sad. McCain's positioning on domestic policy is utterly cynical. He barely even bothers to come up with plausible explanations for changing his positions in whatever directions his consultants tell him to go. He is ripe for a populist, principled conservative challenger. The problem is that you can listen to Deakin and Hayworth and have no clue how, in any specific way, their policies (drawn from their principles) will improve people's lives in any meaningful way. How much (if any) would their tax plans save you? What policies will slow the growth of health insurance premiums? How much does McCain plan to cut corporate taxes and how will that change corporate behavior? It is all cliches, buzz words, and signaling to people who are already broadly familiar with the conservative narrative. The problem is that it is just patter (Reagan, tax cuts, earmarks, Obamacare etc.) and McCain can deploy it too. About the only place the debate got down to the human level, was when McCain was talking about bringing home government bucks to Arizona bases and defense companies.
Ross Douthat wrote last week that one of the great vices of the contemporary right is the "blithe conviction that "true conservative" good intentions trump policy substance and deep expertise." I'm not totally on board with that. I would say that a great vice is too many politicians who market themselves as conservatives tend to try to win over voters far more by posturing and trying to show cultural affinity (I'm a Reagan conservative, I'm a consistent conservative) than by articulating relevant policies that are based on shared principles in a way that the consequences of those policies are understandable to the average somewhat-but not-very-involved voter who isn't just looking to cheer on a team.