Monday, August 9, 2010

The anti-14th Amendment crowd has finally pushed me over the edge

My favorite blond conservative nutjob, A.C., has written an article about birthright citizenship and the 14th Amendment.  In this article, she claims that what she views to be the scourge of anchor babies comes from a footnote written by Justice Brennan in the 1982 case Plyler v. Doe.  She claims this "lunatic" justice came up with this idea of birthright citizenship for the children of illegal immigrants out of his own crazy head (and some 1912 book).  I have seen it cited now on newspaper comment sections and blogs.  I have seen it called "well-researched."   And, of course, it must be because, you know, A.C. is a constitutional lawyer who graduated from Michigan and clerked for a federal judge.  So anything she writes is brilliant and anything anyone writes to rebut it are wrong.  (I would link to the post, but I don't really want any links to bring her nutty fans over here.  Google A.C. and Justice Brennan footnote and you'll find it.)

There's just one big problem with her ideologically-driven attack on that "lunatic" (her word) Justice Brennan.  She is wrong.  It took me all of about 2 minutes of legal research to find federal case law pre-dating that 1982 decision that presumed children of illegal aliens are U.S. citizens simply by virtue of being born in the U.S.  Justice Harlan wrote that such a child would, of course, be an American citizen.  He wrote that in 1957 for a Supreme Court decision ,U.S. ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618 (U.S. 1957).  Of course, she doesn't want to present any thorough, comprehensive review of the history of birthright citizenship.  She just wants to lay all the blame at the feet of the first liberal she can find.  So once she had Justice Brennan in her sights, any additional research would not help her cause.  Especially if it would be revealed that the history of the U.S. Supreme Court accepted that the 14th Amendment means what it says: that people born in the U.S. are U.S. citizens.

So her entire premise that "anchor babies" are the result of one lunatic liberal justice in the 80s is flawed.  As is so much of what she spews.  Why does she have any credibility?  And has the University of Michigan ever thought about taking her J.D. back?  She makes me glad that I chose Wisconsin for law school.

Anyway, the real point of this post is simply for me to own that I am not doing a good job of letting go tonight.  Because I have now spent the better part of the last two hours on blogs, newspaper comment sections, and an A.C. message board, trying to demonstrate why her legal theory was lacking.  Heck, I've now also written a blog post about the matter.  But the only thing I have succeeded in convincing anyone of is this: if I am trying to reason with A.C. followers, I have gone completely 'round the bend.


exopolitical said...

Considering you commented on my post, I'm assuming a lot of your generalizations are drawn from me. Therefore, I feel the need to correct a few things:

1. I'm not a hardcore right nut Ann Coulter loving/defending nut job. Did you read my disclaimer? I said up front that I think she's brash and ridiculous-- I just thought she presented an interesting point. So please, don't generalize. It's not fair.

2. "So anything she writes is brilliant and anything anyone writes to rebut it are wrong." I'm going to assume that line was meant for someone else because it's obvious I don't think so.

3. "She just wants to lay all the blame at the feet of the first liberal she can find." I agree. AC is the queen of party politics. She was FOR the war under Bush, now she's mysteriously OPPOSED to it under Obama. It gets old.

4. People who oppose granting amnesty to illegal immigrants are not "anti-14th amendment."

5. "And has the University of Michigan ever thought about taking her J.D. back?" Take away someone's JD for political reasons? Really? That would be a horrendous, ridiculous injustice. Obtaining a JD isn't about what a person believes, but what a person earns as a result of the work they complete. I really hope that was a sarcastic comment.

jdelaney3 said...

Gee,Sarah,why so testy and scurrilous? You're not a whiny lib, are you? You castigate AC for her nuttiness and lack of thoroughness and objectivity,then immediately launch into a wearying tirade against her. If credibility and strict adherence to the law is your angle, then do it. Your emotional drivel places you in AC's league. How about acting like a dispassionate and objective attorney. How very novel that would be these days. Oh, and by the way, I've researched the birthright citizenship issue as well, and there's plenty of evidence to suggest that both Harlan and Brennan blew it big time. The original meaning of the 14th as expressed by the authors the 14th Amendment are suddenly meaningless. No wonder this country is in such a mess. Our founders warned that judicial overreach is ever bit as loathsome and dangerous as Executive and Congressional overreach. The struggle continues.

S said...

Exo- as to point #1, that was in no way directed at you. I didn't link to your blog so no one could think it was directed at you. Specifically, that was directed at folks on one particular message board I wasted too much time on.

Point #4 - The anti-14th Amendment crowd of my title are those who actively want to either amend the constitution or pass legislation to say the plain words of the citizenship clause don't mean what they clearly mean. Amnesty is an entirely different issue.

Point #5 was a joke. Having a JD myself, of course I wouldn't want universities to strip well-earned degrees from people for political reasons. (But she's such a hack, if I had my JD from Michigan, I would be embarrassed.)

S said...

jdelaney, this wasn't meant to be an objective and dispassionate piece. Sometimes, I just have to rant against folks like Ann. (Check out the URL: it's rants of a public defender for a reason.)

I believe the original intent of those who ratified the 14th Amendment was exactly how we've applied it: that those who are born here are citizens. There was much discussion about the concerns that even the Chinese and the gypsies would be able to have U.S. citizen children by the opponents of the Amendment. Yet the proponents passed it. They meant for citizenship to be conferred by birth on our soil so that animosity towards particular groups couldn't be used by state legislatures or Congress as a basis for denying citizenship.

Nance said...

I find A.C. tiresome in the extreme (no pun intended, truly), so I don't even listen to her anymore. And I absolutely maintain--as I do with Sarah P.-- that if she were dowdy, plain, elderly, and oh, hell--let's toss in blatantly homosexual just for good measure--she would have a far narrower audience for her blather.

S said...

I, too, try to avoid A.C., but this particular post seemed to find me. She's been pretty quiet of late. I agree that looks play a large part in the appeal of folks like her and Palin. Sadly, though, I think it if weren't those two, it would be others because there are plenty of people (as I learned from my time spent on that message board the other night) who take it as a given that Obama's birth certificate that we've all seen is photoshopped, that the citizenship clause has been bastardized far from its original intent, etc. They even argued with me (and possibly thought I was committing treason) when I said that George Washington was not a natural born citizen of the U.S. So there is definitely an audience for these extreme right-wingers.

jdelaney3 said...

I think the issue turns on the words "within the jurisdiction thereof".

Under Sec 1992 of the Revised US Statutes,the same Congress which had adopted the 14th, confirmed that "all persons born in the US and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the US."

Sen. Trumbell, one of the 14th's framers asserted that the goal was to "make citizens of everybody born in the US who owe allegiance to the US." And co-framer John Bingham explained that Sec 1992 meant "every human being born within the jurisdiction of the US OF PARENTS NOT OWING ALLEGIANCE TO ANY FOREIGN SOVEREIGNTY is, in the language of the Constitution itself, a natural born citizen." He further restated the goal of the language by affirming that only those persons COMPLETELY WITHIN OUR JURISDICTION, who are subject to our laws, that we think of making citizens..." And when asked to further clarify "jurisdiction", Senators Trumbell and Howard asserted that "the provision is, that 'all persons born in the US, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof'. What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."

James Wilson (IA), House Judiciary Chair in 1866, stated that "...every person born in the US is a natural born citizen...except that of children born on our soil to temporary sojourners OR representatives of foreign governments."

Sen. Howard, a co-framer, explained that only thru expatriation, which could be accomplished thru law alone, and not thru any immigrant acting on his own outside the law--and certainly not by any act of birth alone--could an alien become a citizen. Of course, the alien/sojourner would need to affirmatively renounce his allegiance to his/her country of origin before s/he could be considered completely within the jurisdiction of the US. He also stated the following: "...the word "jurisdiction", as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the US, coextensive in all respects with the constitutional power of the US , whether exercised by Congress, by the executive, or by the judicial dept; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."
In effect, he was saying that an alien may, by treaty arrangements with his country of origin, avail himself of the protection of the US, much as sojourning US citizens in the alien's country of origin would avail themselves of that country's protection.
(Note: the framers eschewed British common law when discussing and framing the 14th.)

The court's allusion in 1957 (Hintopulos v Shaughnessy)to the notion that a child born to illegal aliens on US soil is a US citizen remains a mystery to me. In fact, it simply and gratuitously appeared out of nowhere. Which is why, I suspect, Ann Coulter likely didn't cite the case in her article. Also, the ruling did not grant birthright citizenship to the child in question. The ruling merely upheld the deportation of the child's illegal alien parents. In fact, one judge in the opinion went so far as to say that suspending the parents' deportation "based upon the accident of birth in the US of their son would be to deprive thers, who are patiently awaiting visas..."

Finally the Supreme Court has never directly reviewed immigrant birthright citizenship.

So, clearly, everyone needs to calm down and do their homework, take the ideological blinders off, and try to peacefully and objectively resolve this issue without rancor or specious racist epithets. We need to be a nation of laws once again. And achieving that noble goal promises to be a herculean challenge.

Anonymous said...

Another thing, you mentioned that George Washington wasn't a natural born citizen, the implication being why should Obama or anyone else be expected to be natural born in order to be president. Surely you understand that the founders specifically exempted themselves from the nbc rule for obvious reasons. Most were not born in the US as US Citizens. However, they were careful NOT to exempt those who followed.

And to the commenter who seems to imply that Obama's birth certificate has been available for all to see. Urban myth. A certificate of live birth, yes. But, the original long form bc? Nope. Why can't we take our ideological blinders off and do some honest, objective homework. Sure, we'll make some mistakes, but, but at least we can't be faulted for striving to be objective!?!?!?!?!!?

S said...

Anon- as to the GW not being a natural born citizen comment, no that wasn't the implication. You're reading something pretty crazy into that statement. Someone on that message board asked me why that exemption language is written into Article II, Sec. 5. It seemed an odd question to me as the reason seems rather obvious: that there were no natural born US citizens prior to the adoption of the constitution, so we had to grandfather people in. It had nothing to do with a discussion of Obama or any other modern-day presidential candidate. I was just struck by the vehement objections I got when I said that GW was not a natural-born citizen. I thought it to be a rather obvious and harmless statement. (How could he be a U.S. citizen at birth when that nation wouldn't yet exist for several decades?)

Boy howdy, we are not getting into a discussion of the Obama birth certificate here. That topic has been beaten to death. Let me just say if I were required to produce a birth certificate with all of the information demanded by birthers of President Obama, I would be SOL. My birth certificate has nothing about a doctor's name, signature, no witnesses to my birth, etc. Just the basic parents, date of birth, city of birth. Just like the one we've all seen pictures of from Hawaii.

Ideas said...

You should read the Heritage Foundation's guide to the Constitution!

jdelaney3 said...

S ,
I think those folks' negative reaction to your stating that GW wasn't a natural born citizen is the product of ignorance and misplaced patriotic umbrage. Among both the educated and uneducated among us, I suspect 98% don't understand the meaning of nbc. Thus, their overly sensitive reaction.

Finally, and only in passing, try exploring the BHO bc issue in more detail. Fascinating stuff. Also, to be an nbc, we need but re-read the words of the 14th's framers. In effect, to be an nbc, one can't be born of dual citizenship. Both parents must be US citizens to qualify as an nbc. Citizen, native born, naturalized citizen, national and nbc are quite different under the law. This would mean that Bobby Jindal, a fave of the right, is not an nbc and, thus, is not eligible to be prez. While he was born on US soil to two legal immigrant parents,they had not yet been naturalized and had not yet lawfully renounced their ties to their country of origin. But, no need to beat this horse again.

S said...

Oh, great googly moogly!

Jdelaney- After a long day at work and a 4 hour power outage when I got home, I finally got the chance to write out a thorough response to your thorough comment and then blogger ate it! Grr. So here goes again.

Briefly on the Obama bc thing, really, don't ask me to look into it anymore. I have. Thoroughly. And it's nonsense. You will only hurt your credibility with me if you insist there's merit to it.

Ok, on to natural born citizenship as it relates to the presidency. I have looked into that and I disagree with your interpretation. I am confident that Bobby Jindal is eligible to be president, much as I don't want him to be. The 14th Amendment has nothing to say about presidential eligibility, anyway.

SCOTUS has discussed immigrant birthright citizenship in the 1898 case U.S. v. Wong Kim Ark. Wong was born in California to Chinese immigrants. As an adult, he traveled to China and then was denied entry on his return. SCOTUS ruled it was unconstitutional to deny him entry because he was a U.S. citizen by virtue of his birth.

I disagree with your interpretation of the phrase "subject to the jurisdiction thereof." (As does SCOTUS, I believe.) The first rule of statutory construction is that we don't look to the drafters' intent if the words are plain and unambiguous. I think that phrase is plain and unambiguous, so we don't even get to the drafters' intent. The phrase means you're a U.S. citizen if you're born here unless you're born to a diplomat or an enemy soldier. Immigrants, both legal and illegal, are subject to U.S. jurisdiction. We charge them with crimes when we catch them breaking the law. We imprison them. That's a pretty big indication that they are subject to our jurisdiction.

If the drafters meant to include some allegiance test, they could have. They didn't.

I think this interpretation is actually entirely consistent with the quotes you've cited. I don't think an immigrant has "allegiance" to another nation, but a diplomat or enemy soldier does. From the ratification quotes I have read, it seems clear that both sides of the debate understood the clause to confer citizenship on people who were born here. I think the line in Hintopoulos v. Shaugnessy which you dismiss is a pretty solid indication that people understood the clause this way.

I believe birthright citizenship to persons who were born in this country is exactly what the populace intended when it passed the 14th Amendment. It has consistently been seen that way for 100+ years. I believe trying to alter the 14th Amendment at this point would fly in the face of what the ratifiers intended. They sought to prevent denying citizenship to a minority based on animus towards that group. Sadly, it's hard not to feel like animus is driving this current effort in some part. And that is entirely counter to the purpose of the 14th Amendment.

S said...

Ideas, you're right, I should read that. It's always good to read opposing viewpoints. It would be interesting to see where the Heritage Foundation and I would agree and where we would diverge. But, I won't buy it because I won't give that foundation any of my money. So if you want to send it to me, that'd be great. Otherwise, I'll have to hope the local library has it.

jdelaney3 said...

Ignore the original intent and meaning of the 14th? Wow! A living constitution is like having no constitution at all. We can merely make it up as we go along and continue to hand-off an increasingly irrelevant document to the next generation. So, I see there's really nothing more to discuss on this or other constitutional issues. Sad.

Again, read Sens Trumbell, Howard, Bingham, all 14th framers, to understand "within the jurisdiction thereof." They wrote it, and they knew what they meant. They even expressed their meaning and intent in readable, unambiguous words. An objective student of law ought not so easily dismiss our framers' words. I'll take their uncorrupted words before the opinions of a living constitutionalist or activist jurist any day. But, thank you for responding nonetheless.

Sorry about the deletion problem. Almost as bad as an especially virulent attack on my system I recently experienced which took 3 geek types 3 whole costly days to banish. I swear we're enslaved to these infernal machines!

S said...

Where did I say anything about a living constitution or making it up as we go? I said we look to the plain meaning of the words first. I can cite about 17,000 cases for this proposition if you'd like. It's standard statutory construction and it's exactly where any proper appellate judge (or Supreme Court Justice) would start. What do the words say? We really won't get anywhere in this discussion if you take my plain words to mean something other than what they mean.

Furthermore, I simply disagree with you to the extent to which those few quoted Senators intended to exclude children born to immigrants. I have read the famous Howard quote and I think he was referring to children of diplomats, not just every child born to a resident alien.

Lakewood Bob said...

"On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying to determine what meaning can be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

I don't believe we had any immigration laws when the 14th Amendment was ratified, so there were no illegal immigrants! The circumstances that existed at the time and the comments provided during the ratification process are the only relevant guide to understanding its purpose and intent. I could explain this further, but I suspect, as indicated by your previous responses, that it would be futile!

As Samuel Johnson once said:"In order that all men may be taught to speak truth, it is necessary that all likewise should learn to hear it."

S said...

Nice condescension, Bob. If only you would actually consider the substance of what you wrote, because I still think in any historical, rational discussion of this amendment, my view that the citizenship clause clearly provides citizenship to babies born to illegal immigrants is the one that carries the day. I don't think TJ would suggest that we should ignore the plain text of the Constitution. I don't question that we should be mindful of the spirit of the debates (I have discussed that spirit, but you conveniently ignore that), but we shouldn't ignore the plain text, either.

In this debate, you and those on your side pull out a few quotes which you then misinterpret to support your view that the citizenship clause was not meant to include children of illegal immigrants. I have said it before and I'll say it again: the quote you all rely on from Howard seems to me to say that children born to diplomats or foreign soldiers will not be children. I think it's an awfully tortured reading of his quote to find that immigrant babies weren't intended to be citizens. (Since, as you note, there was no illegal immigration at the time, it's hard to see how that could have been a group the drafters clearly meant to exclude...)

There are lots of other quotes, though, from that time that made it clear that others fully intended for all people born here (with few diplomatic and war-based exclusions) to be citizens. People on your side conveniently ignore those quotes.

The fact that there are quotes (arguably) supporting both views, by the way, is another reason that my suggestion that we should start with the plain text is all the more sound. How do we decide which arguments in favor of the clause are the ones that carried the most votes? But, regardless of that, I still think I'm on solid historical ground in arguing that the prevailing view at the time of ratification was that babies born to immigrants were clearly going to be citizens.

And if you want to discuss the spirit manifested in the debate, it was all about racism. It was about some people being afraid not just of blacks being citizens, but of allowing Chinese and Gypsy babies to be citizens. That view, that we should be allowed to exclude undesirable groups from citizenship, was the one that lost. Think about how that relates to this renewed debate about the citizenship clause, with all its discussion of "Mexicans" and "brown-skinned people" taking over "our" country. Sounds an awful lot like current citizens are wanting to be allowed to exclude an undesirable group from citizenship...

Anonymous said...

But in 1866, the actual author of the post-Civil War Amendment – Senator Jacob M. Howard of Michigan – explained the real purpose of his amendment.

Unfortunately for liberals, it was only for granting citizenship to recently freed African slaves, not foreigners. In fact, it didn’t even include Native Americans.

Howard wrote “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.”

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