Strengthening Constitutional Self-Government

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Birthrights and Wrongs

Since the correct interpretation of the 14 Amendment is again being discussed, I thought I'd post another link to the debates.  Here's how Mr. Howard introduced it in the Senate:

The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the
States wherein they reside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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 accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Categories > Politics

Discussions - 12 Comments

In reading the original discussion of the 14th ammendment, the only people who still express those views are libeled as or else embrace the label of White Nationalists. Somewhat unfairly because it is a concern based more upon a view of the facts than upon principle.

"before very long, of expelling a certain number of people who invade her borders; who owe to
her no allegiance; who pretend to owe none; who recognize no authority in her government; who
have a distinct, independent government of their own -- an imperium in imperio; who pay no
taxes; who never perform military service; who do nothing, in fact, which becomes the citizen,
and perform none of the duties which devolve upon him, but, on the other hand, have no homes,
pretend to own no land, live nowhere, settle as trespassers where ever they go, and whose sole
merit is a universal swindle; who delight in it, who boast of it, and whose adroitness and cunning
is of such a transcendent character that no skill can serve to correct it or punish it; I mean the
Gypsies. They wander in gangs in my State. They follow no ostensible pursuit for a livelihood.
They trade horses, tell fortunes, and things disappear mysteriously. Where they came from
nobody knows. Their very origin is lost in mystery. No man today can tell from whence the
Zingara come or whither they go, but it is understood that they are a distinct people. They never
intermingle with any other. They never intermarry with any other."

The attack on the Gypsies(Roma) continues to this day(must be some merit to it because it is common in France and Italy as well), and if you want to compare the american brand to the European brand in Europe you are talking about the Jobbik party led by Gabor Vona and Nick Griffin of the Brittish Nationalist party.

But see:

No one is really paying attention, but if you go this route on the 14th ammendment then I think you are really trying to pour gasoline on a smouldering liberal fire. Kyle will also sell more books...

"It is utterly and totally impossible to mingle all the various families of men, from the lowest form of
the Hottentot up to the highest Caucasian, in the same society."

Hottentot's are blacks...thus this Mr. Cowan in discussing society was really trying to undermine the 14th ammendment or prevent it from overturning Dred Scott which said that black people(hottentot's) could not be citizens of the united states.

The correct interpretation of the 14th ammendement is almost certainly not originalist, if by originalist you propose to give a great deal of weight to all the political interests which wanted to uphold white power, and the cultural sentiments and prejudices behind of Dred Scott.

All attempts to make citizenship something "substantial" were racially colored.

The 14th ammendment has to stand for no more than what, Senator Cowan and CJ Taney didn't want it to stand for: "So far as the courts and the administration of the laws are concerned, I have supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection."

Senator Cowan wanted to argue for a broader definition of citizenship, in part because he didn't want to give up pennsylvania's "legitimate state interest" in making qualitative distinctions about groups of people(in his case Gypsies).

The only reason to have the broader definition of citizenship is to protect a legitimate state interest. That is to create favored classes and favored groups of people, whose behaviors serve a socially salutary function, serving in the military, voting, being an elector, working hard, paying taxes, getting married, having children, consuming to boost aggregate demand:).

Technically if you want to see what a citizen is, you look at the tax code and see what behaviors are favored and disfavored. Some call it picking winners and loosers, others call it citizenship formation/nudging.

If you manage to square the libertarian impulses of the tea party with a broader state interest in molding citizens, you are a master of the art of politics.

Of course on some level there is no orthodox tea party, or anyone who can speak for it. I would say Rand Paul for a sizeable faction and Tancredo for another sizeable faction. As much as Rand Paul questioned some of the economic policies behind the fair housing act his statements were orthodox, on plausible legal ground with regards the distinction between state actors and private actors, and mostly mainstream/Posner/blue book policy counter arguments.

I have no problem defending Rand Paul.

And while I am sure Rand Paul would defend Tancredo's first ammendment rights, this issue belongs to Tancredo and Buchanan.

The question of what makes someone a U.S. citizen is also worth raising.

A nation founded upon compact is one where new citizens are made by mutual consent between the person who wishes to be a citizen and the current citizens. That's the most reasonable way to apply the principles of 1776 to the question of citizenship. Hence it suggests that an accident of birth ought not to make someone a citizen.

Similarly, as the dissent in Wong Kim Ark notes, (a dissent, not coincidentally, co-signed by Harlan two years after Plessy), the alienability of citizenship is related to the idea that citizenship it made by choice and consent. The idea that allegiance is based on soil suggests a contrary idea.

The rights and duties of citizenship is a different question, but also a question that ought to be considered in light of the principles of 1776. The basic questions are still very much the same, including the question of how to sustain those principles prudently.

The question is simple: Is a child born to non-citizens a citizen. Whether or not the original intent of the Constitution says yes or no to this question, the fact remains we need to make sure that children born to non-citizens are NOT automatically made citizens. We can no longer afford that kind of model. No discussion really required; our immigration policies need to be updated to take into consideration that we no longer have a frontier nor suffer from labor shortages. Canada should do likewise before it completely loses any nationalist character it once had.

I believe we should call them "undocumented Democrats".

Redwald. Amusing to see a living constitution-friendly argument. Perhaps that's the best way to present it to Lefties.
A related point: it's amusing to see Progressives, who praised Jack Rakove's book for arguing that there is no one, fixed meaning saying that there is only one, fixed meaning of the citizenship clause.

Richard, an approach likely to fail as a way to win over folks on the left-of-center. One of the unarticulated premises of liberal living Constitution arguments is that the living Constitution only evolves and grows in the direction favored by a critical mass of people on the left-of-center. I know that sounds like special pleading and for a very good reason. Though I don't mind mocking them for their hypocrisy (I did something like that in Bush v. Gore. At worst the Constitution just evolved: Shazam!), as long as we don't expect converts from that approach

Not sure I agree with you on points, Pete. The Left gets away with its living constitution evolves Left presumption because conservatives don't call them on it. The way to break the Hegelian myth is to expose it.

Richard, I certainly agree with calling them on it, I just don't expect to win many liberals overb by making living Constitution-derived arguments in support of this or that conservative-favored judicial outcome.

I'm not clear that the Howard quote makes your case:

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 accredited to the Government of the United States, but will include every other class of persons.

It doesn't say "persons...who are foreigners, aliens, OR who belong to the families of ambassadors of foreign ministers accredicted to the Government of the United States." Isn't he talking here only about the famlies of diplomatic staff? Other "foreigners" or "aliens" would be included among "every other class of persons."

And by citing the "living constitution," doesn't that put us in the same category of hypocrisy? Isn't it saying that we believe in original intent, except when something was intended of which we don't approve?

John, yes in some cases, but not if those arguements are being used to expose an hypocrisy in "living constitution " arguments generally

Agreed, Pete.

I read Howard's comments differently. I read it as a list of types. Foreigners, is one, aliens is the next, and is divided into ambassadors and foreign ministers, otherwise there is a redundancy.

It's worth noting that there's a difference between strict construction, loose construction, and deconstruction. Even in his defense of the Bank, Hamilton admitted that the constitution gave the federal government no power to regulate the police of Philadelphia. That there are a range of plausible meanings does not mean every meaning is plausible.

When both of two plausible meanings are in the text and debates, then one must turn elsewhere to resolve the issue. The trouble is that some conservatives seem to think that's never the case. The problem might go back to Jefferson's comment, "let mercy be the character of the lawgiver; let the judge be a machine." Law isn't geometry. It can't be done. It is by nature connected with moral reason. The only question, at the moment, is whether the moral reason will be one that supports limited constitutional government, or one that supports Progressive ideas about social justice.

You boys are making consistency a character flaw. Seems to me there are grounds for interpreting the Constitution in two different ways here, and if we interpret it as allowing just anybody to become a citizen then we have a procedure for changing that -- amendment. While I think it is perfectly sound to argue that the need for fundamental checks and balances (and civil and political rights) has not changed over the centuries, our needs for more citizens certainly has. The Founders were not laying down holy scriptures here. Let the document bend to the times in the way it was intended, via amendment. Given the polls on this issue, an constitutional process is possible here.

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