A recent article in the Wall Street Journal, newly elected Republican Congressman from Hawaii Charles Djou called Birthright Citizenship a GOP Achievement.  And to think I was happy to hear Mr. Djou was elected in an unusual special election where he ran against two Democrats simultaneously.  They split the vote and he won.  Birthright Citizenship is not a GOP achievement it is an accomplishment of judicial activism, pure and simple.  Mr. Djou says, “The Citizenship Clause of the Constitution’s 14^th Amendment provides that a person born in the United States is automatically a citizen, regardless of the race, ethnicity or citizenship of his parents.”  Where the hell does it say that? 

The Amendment actually reads, “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.”  These, so called conservatives, like the first part of the clause but seem to go ignorant or blind at the second part.  If you are a Constitutional Originalist, you look to the meaning of the Constitution first in the actual text, then to any information that you can glean from what was discussed at the time of its passing.  This is a case where that information could not be any clearer.

Senator Jacob Howard of Ohio was the author of the citizenship clause of the 14^th Amendment.  He said:

 “[E]very 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 [emphasis added] , 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 not citizens of the United States. “

How much clearer could “not include aliens” be?  Aliens are outside the jurisdiction of the United States and are subject to their home country.

Linda Chavez, who presents as her conservative credentials that she served in the Reagan and Bush administrations, points to English Common Law as the basis of the Birthright Citizenship.  Since under Common Law you are immediately and forever a citizen of the place of your birth.  However, with the Declaration of Independence we did away with that custom of English Common Law.  Under Common Law, you could not renounce your citizenship, and if we are still under that law, we are still all Englishmen.  It was also one of the causes of the War of 1812.  The British did not recognize our process of Naturalization.  They were stopping our merchant ships and taking off sailors they deemed to still be English citizens and pressed them into service in the Royal Navy.  The concept that Ms. Chavez is arguing supports Birthright Citizenship is from feudalism, where the serfs belonged to the land.  They received the lord’s protection and in return gave their lord a lifetime of service.

At the time of passage of the 14^th Amendment, whose purpose was to grant citizenship to the freed slaves, the debate was whether it would also confer citizenship on the American Indians.  Under Mr. Djou’s logic and Ms. Chavez’s they were born here, it was automatic.  But it wasn’t.  Not because of discrimination but because they were members of their tribes which were considered sovereign nations.  The United States signed treaties with them.  In the Supreme Court case Elk v Wilkins the court ruled:

“Indians, born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian Tribes, an alien though dependent power, although in a geographical sense born in the United States, are no more born in the United States and ‘subject to the jurisdiction thereof’ …than the children of subjects of any foreign government born within the domain of that government, or the children, born within the United States, of ambassadors or other public ministers of foreign Nations.”

That was the law until 1898 in the Supreme Court case United States v Wong Kim Ark, where the majority used the Common Law argument to ignore what was written in the text of the Amendment, what was discussed at the time of the Amendment by the author of the Amendment and its supporters and the prior Supreme Court case.  This is judicial activism at its baldest.  In the dissenting opinion by Chief Justice Fuller he made it clear:

“when the sovereignty of the Crown was thrown off and independent government established, every rule of the common law and every statute of England obtaining in the colonies, in derogation of the principles on which the new government was founded, was abrogated.”

The American Revolution did away with that definition of Birthright Citizenship under the Common Law.

So along comes Lindsey Graham, who can’t decide if he is for open borders or against them, so his suggestion to amend the Constitution to end Birthright Citizenship sounds somewhat hollow.   It is also irrelevant.  Article I, Section 8 of the Constitution clearly grants the Congress the power “To establish an (sic) uniform Rule of Naturalization..”  This does not require an amendment, just a simple clarifying law that Birthright Citizenship does not exist in the United States.

The irony is that the 14^th Amendment was created to make it more difficult for future Congresses to repeal the Civil Rights Act of 1866, which said pretty much the same thing as the 14^th Amendment and it was changed with the stroke of the pen of an activist Supreme Court.  Perhaps we need to consider the idea of Mark Levin in that perhaps we need to have a legislative veto of Supreme Court decisions.  If the role of the Supreme Court is to interpret laws written by Congress, why not let Congress with a two-thirds vote, explain what the Supreme Court misinterpreted?

There was a commercial not too long ago where a young man looked out his window to the village green where a bundle of money had just fallen.  He calls his wife/girlfriend over to show her.  She suggests running down and getting it, but he says, no, let’s wait.  Next you see a frizzy headed guy down on the green who screams, “MONEY!!!!”  In seconds, people came out of the woodwork and scoffed up all the money while the young couple looked on.

The image of that commercial popped into my head as I considered the job summit being led by President Obama.  To me, the young couple represented the government pondering how to direct the economy to achieve this specific goal or that.  The mob on the green was the free market.  While the government dithers over what kind of legislation to write, which special interest groups to pay off to pass it, how to develop incentives to get private industry to do this or that, if they would just cut taxes and get out of the way, the free market would get to work creating jobs where they are needed, not where some bureaucrat thinks they should go.

Uncertainty

The biggest cloud overhanging this economy is uncertainty.  The Obama administration is slamming through enormous changes: a $787 billion Porkulus package, cap and trade, health care.  Businesses look at this combined with the accumulation of massive government debt, tax increases rather than cuts (yes letting the Bush tax cuts expire is a tax increase, not just the expiration of tax cuts as Speaker Pelosi tries to spin it) and they don’t know what hiring that extra employee is going to cost, let alone what it will cost to keep the employees they already have.  So they don’t hire until the dust  settles and they can calculate the impact.

“Tax incentives for job creation are “worthy of further consideration,” he said, while adding that the administration is also set on making a big push in the area of green jobs.” – President Obama at Jobs Summit

“Worthy of further consideration”?  Since conservatives have been calling for tax cuts for a year now, this kind of statement in Obama-ese translates thusly, “I have to make a nod to the right, to acknowledge that I heard them, but it ain’t happening.”  Couple that with the “big push in the area of green jobs.”  We are in the midst of the scientific scandal that the “settled science” of man-made global warming could be the greatest hoax since Bernie Madoff, and Obama wants a big push in the area of green jobs.  What if that area collapses because the urgency that Al Gore has been screaming about is no longer urgent?  It’s government planning on the order of Soviet five-year plans or Mao’s Great Leap Forward programs.  It harkens back to Jimmy Carter’s giant Synfuels project that was going to convert coal into oil, until oil prices fell and the project imploded, but not before billions of tax dollars were poured into that rat hole.

How Simulating!

If you listen to Joe Biden, the stimulus plan is working better than expected.  But let’s take a closer look.  As of about three weeks ago only $120 billion of the stimulus money had been spent. (So why is Congress looking at another stimulus with over $600 billion left to spend in the first one?)  Of that money, 80% went to the Department of Education, Health and Human Services, and the Department of Labor.  What about all the “shovel ready” projects?  Only about $4 billion has gone to the Department of Transportation.  Feel better?

Jobs Summit Attendees

So who is meeting with President Obama at the jobs summit?  Well first let’s look at who was not invited:

• U.S. Chamber of Commerce — they have butted heads with Obama over health care and climate change policies
• National Federation of Independent Businesses

I don’t know about you, but I think they might have an idea or two about how to create conditions that let the free market create jobs.  As for the attendees:

• Service Employees International Union (SEIU) officer
• President of the American Federation of Teachers — a union of workers in a government run monopoly
• United Food & Commercial Workers International Union
• CEOs of some Fortune 500 companies

How many jobs do unions create, not occupy, create?  Think of the auto industry, steel industry, public K-12 education, the Postal Service, and government in general.  Do they bring images of thriving, vibrant, engines of job creation?  Or is the image more of the basket cases of the U.S. economy?  This is not a slight against the union workers themselves, but rather of their leadership who create so many restrictions on job rules to artificially create the need for more jobs.  There motto is: why have three people do the work, when you have five do it?

As far as big business is concerned, let me dispel the thought that conservatives and big business go hand in hand.  In many cases big business looks to cut deals with the government to protect their industries and markets from upstart companies.  They have gotten big and lethargic, rather than nimble and vibrant.  Small businesses create about 80% of the jobs in the U.S. and they didn’t have a seat at the table.

So was the jobs summit about creating jobs or just jive talk?  If you want a real jobs summit see what American Solutions was hosting in Cincinnati, Ohio and Jackson, Mississippi.  They actually discussed ideas that would work.

For all the Bush bashing that has gone on since September 11, 2001, it is a pretty sure bet that when he leaves office on January 20, 2009, part of his legacy will be that he kept us safe for the last seven years.  The fundamental difference between the polices of the Bush administration and those of Clinton and Carter was that Bush saw it as a war, Clinton and Carter as crimes.  On a war footing, you take the battle to your enemies with the objective of destroying them.  On a law and order footing, you investigate the crime after the fact, arrest suspects, give them their Miranda rights, put them on trial, and if you are lucky, they may spend some time in jail.

Law and Order

In 1979, where it all started, Iranian “students” took over the U.S. Embassy and held it for over 400 days.  Jimmy Carter tried to negotiate a settlement, sponsored a botched rescue, and saw the hostages finally released his last hour in office.  The Iranians didn’t want to be holding American hostages when Ronald Reagan was president.  Reagan would have seen the taking of the U.S. Embassy as an invasion on U.S. soil, which is what our Embassies are.  He would not have tolerated a ragtag bunch of radical students occupying U.S. soil.

From that, and Somalia, Osama bin Laden saw the U.S. as a paper tiger that would cut and run if hit hard.  Clinton’s law and order approach can be seen in the response to the first World Trade Center bombing and the constructing of a “wall” between the CIA and the FBI.

War Footing

President Bush saw the attacks on the U.S. as a war.  He mobilized the country and struck back hard.  By going on offense rather than hanging back playing defense, he has kept the enemy pinned down in Iraq and Afghanistan, while simultaneous rooting them out aggressively wherever they went.  Those captured on the battlefield were sent to Guantanamo, where they were interrogated and held.  Lawyers in the U.S. began to complain that these prisoners were being held without being charged and that was unconstitutional.  Again, that is seeing it from a law and order perspective.  On a war footing, the enemy that is captured on the battlefield is held until the end of hostilities, like we held Japanese and German prisoners during WWII.  If it takes 50 years until the war is won and hostilities ended, then they should be held for 50 years.

Rooting Them Out

In trying to prevent another attack at home, Bush also aggressively sought to disrupt their operations.  Part of that process was to intercept their communications and learn what they were up to.  This caused an uproar over eavesdropping on Americans without a warrant.  However, the program was designed to intercept international phone calls, even if one end was in the U.S.  For example, if an Al Qaeda terrorist is captured or killed on the battlefield but their cell phone is recovered and their cell phone has an address book in it, the administration would set up all the numbers in the address book to be monitored and calls listened to. The purpose was to keep all Americans safe.

Many on the left believe that people in the Bush administration should be prosecuted for this practice.  They call this activity criminal.

Who Are Your Enemies?

President Bush tried to prevent our enemies, those who wished to kill as many of us as possible, from doing us harm.  He knew our enemies to be deadly and ruthless.

And then you have Joe Wurzelbacher, aka Joe the Plumber.  Joe the Plumber had the audacity to ask Barack Obama a question about how Obama’s policies would affect people like Joe.  Pretty dangerous stuff, no?  Since that chance encounter, Joe the Plumber has been investigated by six Ohio state agencies.  Did you see the ACLU representative on the evening news demanding what the Obama campaign knew about this and when they knew it?  Did you see Chris Matthews slamming his hand on his desk and saying, “This is AMERICA, not the Soviet Union!  We don’t investigate citizens because of their political beliefs.”?  Did you hear Senator Dick Durban rise in the senate to decry what happened to Joe the Plumber and compare it to the Nazis, the Soviet Gulags, and Pol Pot?

Neither did I.