Strengthening Constitutional Self-Government

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The Logic of Birthright

Instapundit point us to this incident, in which a citizen was denied the right to travel because he damaged the chip in his passport: "The claim has been made that breaking the chip in the passport shows that you disrespect the privilege of owning a passport, and that the airport was justified in denying this child from using the passport."

But is holding a passport a "privilege" or a "right"?  Interestingly the dissenters in U.S. v. Wong Kim Ark (Fuller, joined by Harlan) noted that "birthright" or the notion that soil determines citizenship, was associated with subjecthood--under common law, anyone born on soil belonging to the king could only leave the country with his explicit consent.  That's why that argued that in 1776 the U.S. broke from not just allegiance to the crown, but also from the idea of birthright.  They argued that American citizenship was based upon the principles of 1776--mutual consent between current citizens and any new would-be citizen.  It seems some of our bureaucrats are following the logic of "birthright citizenship" all too well.

Categories > Politics

Discussions - 2 Comments

So, what are you suggesting, that citizenship be something like adult baptism?

That would seem to me to be the opposite of what he is suggesting.

After all part of the rediculousness of the situation is that a child (and his parents) were held accountable for dammaging a hypothetically redundant chip in a passport, and the argument was that this was somehow akin to showing disrespect for other pieces of paper issued by the government. Not that we should make a federal or constitutional case out of it, but the one that jumped to my mind was O'Brien.

On the other hand part of the rediculousness is going indepth on the issue.

Bottom line it turns out it was a airline employee who made the call. Thus no state action, because the courts prudentially don't like my broad entanglement test.

On the other hand I see a lot of similarities between corporate administrative law/policy and "bureaucracy" supposedly refering only to gov. employees.

Here the boots on the ground, or the airline employee was probably recently instructed of an airline policy, that probably said something like: "We are no longer accepting passports that have a dammaged chip." In all likelyhood he was not given agency authority to grant "waivers" for common sense, that could sidestep these sorts of minor PR blips, before they go viral.

Some economist/lawyer/accountant "white collar" probably crunched some numbers and "discovered" cost savings/privacy issues in using the chip vs. scanning.

What we really learn here is that somewhere in the procedural logistics chain, making use of the "chip" in the passport is considered favorable to using an RFI reader. (enter the libertarian or christian "666" conspiracy theorists...) I am actually convinced that if you are such a libertarian conspiracy theorist you will eventually uncover some rather bland procedural truths, but that in order to reward your homework effort you will have to jazz things up in a book or armageddon video that can sustain copyright/buzz. Maybe you end up on Colbert discussing phallic symbols in the Denver Airport. (already been done).

The right to travel is a fundamental right, but the right to travel internationally is a protected property interest, a passport is more of a procedural duty or tool necessary for efficient exercise of the right/property interest.

The Airline's policy in regards using chips was probably justified by a significant business interest (maximize profit, trim costs) that was unrelated to the suppression of the right to travel (or speech in O'Brien) and was tailored towards that end. (in all likelyhood not sufficiently tailored.)

One potential theory for why it is easy for the middle class to dislike Romney and Obama, or other members of the 1%(Santorum also made it), is simply the fact that both of these are considered to be policy making managers.

In other words some measure of animus towards the 1% is more accurately conceptualized as a perceived failure to employ the business judgement rule, and a certain measure of doubt about the imperative to maximize profit.

This is easily overblown and sensible people will move away from the "tea party" or "occupy" wacko's who overextend. But this is bad for Romney(those who made the most within the system own the system), and Santorum can go on the attack not against the airline employee who actually lacked agency, but against the labor law structure which did not permit the airline employee to modify his judgement with common sense.

Folks in Ohio and Michigan do not want to give up unions, in part because they do not like the way they are topiarized by the "white collar" bureacracy, state action entanglement not withstanding.

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