After watching my government denying Catholic institutions the ability to act in accordance with religious teachings, I was struck by the irony that is developing.
United States Constitution
In the presidential debate on January, 7, in New Hampshire, ABC’s panel pressed hard to have the candidates say whether they believed states had a right to make contraceptives illegal and whether there was a Constitutional right to privacy. Romney, sidestepped it like a skilled matador, Ron Paul fumbled it.
Photo by Mike Licht, nationscapital.com
Often overlooked in the class warfare that President Obama is unleashing on America so that he can continue spending, is how business is being strangled by regulations. Every time the government fails to protect our rights and freedoms because it is too busy trying to micromanage our lives, and as a result some calamity descends upon us, the answer is always more regulations. Nowadays, that will typically mean thousands of pages of new laws that turn into tens of thousands of pages of new regulations and those who never met a payroll wonder why we are stuck at 9% unemployment.
Photo by Robert Scoble
And I’ll promise you this: I’ll work every day to make Washington, D.C. as inconsequential in your life as I can. And at the same time, we’ll be freeing our families and small businesses and states from the burdensome and costly federal government so those groups can create, innovate and succeed. — From Rick Perry’s speech announcing his run for the presidency.
That is the pledge of a person who deeply respects the Constitution. It is the sentiment of a person who understands the Tenth Amendment to the Constitution.
The times were dark ones. In some parts of the world communism was taking hold and viewed by some as the future that works. In other regions fascism was gaining in Germany and Italy. In the U.S. President Roosevelt and his administration tried idea after idea to end the Great Depression without success. Despite Roosevelt’s admonition that we only have to fear is fear itself, fear was always at people’s elbows.
The Tea Party has some major accomplishments to their credit that will be on display this week. The first is a reading of the Constitution in the House of Representatives to open the 112th Congress, the second is the change to rules that require any bill to state where in the Constitution Congress has the authority to enact that legislation.
I still find myself in awe of our Founding Fathers who created our form of government. The competing ideas that they sifted through to come up with our Constitution and the safeguards in it is wondrous. The designs upon it by the progressives is by equal measure disturbing.
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 14th 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 14th 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 14th 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 14th 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 14th 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?
“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.” — XIV Amendment of the Constitution of the United States
Well that’s a pretty bold statement. Who am I to say that children of Illegal Aliens are not Citizens upon birth? I say that because of the part of the Fourteenth Amendment that most people choose to ignore. It is a two part statement. The first part concerns being born or naturalized in the United States and the second part states that you must be subject to the jurisdiction thereof. It’s not either or, the requirement is that both conditions must be met.
We have in the news talk about Lindsey Graham introducing a new Constitutional Amendment to bar children of illegal aliens becoming citizens upon birth. I don’t think that step is necessary.
Let’s look at the history. The infamous Dred Scott decision said that no black of African descent could be a citizen of the United States, even if they were freed blacks. After the Civil War Congress passed the Civil Rights Act of 1866 which stated:
“All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Prior to the passage of this law, citizenship was conferred on individuals by the states and U.S. citizenship flowed from that. This law reversed the process. Why? Because some southern states could have prevented blacks from becoming U.S. citizens by blocking state citizenship. By turning it around, they were U.S. citizens first and then citizens of the states in which they lived. Similar language was included in the Fourteenth Amendment to prevent subsequent Congresses from repealing the 1866 Act. In the Fourteenth Amendment, the language regarding Indians was dropped. There were some concerns raised that this would automatically confer citizenship upon Indians, who also had allegiance to their tribes. Senator Jacob Howard who was the author of the Citizenship clause said this:
“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”
Senator Lyman Trumbell, who was Chairman of the Senate Judiciary Committee agreed, “subject to the jurisdiction thereof {meant} not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians were not subject to the jurisdiction of the United States because they owed allegiance, even if only partly, to their tribes.
So if an illegal immigrant comes to the United States and has a child, is that child automatically a United States citizen? Does this action comply with the Fourteenth Amendment? To the first part yes, they are born here; but to the second part, no. The mother is a citizen of her home country and is thus subject to the jurisdiction of that country, not the United States. Secondly, she is here illegally so she is exempting herself from rather than subjecting herself to, our immigration laws. As for the child, a newborn can hardly swear allegiance to any country, so in all cases it fails the second part of the Citizenship Clause. Consider diplomats who may be assigned to the United States. If the French Ambassodor’s wife has a baby while posted here, is her child not French?
Let’s take another look at the history. In Elk v Wilkins (1884), the Supreme Court held that a “native Indian who had renounced allegiance to his tribe did not become ‘subject to the jurisdiction’ of the United States by virtue of the renunciation.” It went on to state, “The alien and dependent condition of the members of the Indian Tribes could not be put off at their own will, without the action or assent of the United States.” So that would mean an illegal alien could not come to the United States and declare in the delivery room, “I renounce my allegiance to [fill in country here],” and then her child would be a citizen. “Neither the ‘Indian Tribes’ nor ‘individual members of those tribes,’ no more than ‘other foreigners’ can ‘become citizens of their own will.” In other words there has to be a treaty or other legislation that allows the renunciation. Congress began extending citizenship to various Indian tribes beginning in 1870.
In a later Supreme Court decision United States v Wong Kim Ark “conferred birthright citizenship to legal residents of the United States.” It appears that the language of the majority opinion is broad enough to allow interpretation that this also extends to children of illegal aliens, but it should only take a Supreme Court challenge or legislation to clarify the meaning of the Citizenship Clause to do what the authors of that clause originally intended. There is no need for the arduous process of a Constitutional Amendment. With the will of the American people as strong as it is for regaining control of the immigration situation, this could be done with a new Congress in January.
Reference: The Heritage Guide to the Constitution, Regnery (Washington, 2005)
We currently have a commission investigating how to deal with our ballooning deficit and Brobdingnagian debt. In the past we have had a commission on military base closings and I am sure there were others that don’t immediately come to mind. Why do we need them when Congress and the President have the necessary power to make these changes? Cowardice. It may be a harsh charge, but that is basically it, no one wants to go on record making tough choices, but if they can get an unelected bipartisan commission to make a recommendation that Congress can vote “all or none” then there are plenty of political fig leaves to go around.
“Well, I didn’t vote for that one, I voted for this one, but it was an all or nothing deal so I couldn’t separate them out.” We pay these people $174,000 each in base pay and they punt the hard choices to a commission. Why? Because they see their primary job as keeping that $174,000 per year job, something that gets easier once you are an incumbent, so long as you don’t make a major mistake, like a hard decision for the benefit of the country.
If you look at the Constitution, the powers granted to the federal government were few and defined, as Madison put it in Federalist No. 45. With such limited and defined powers, the federal government should focus on a limited number of items and deal with them directly. But the size and scope of the federal government has grown enormously and the current administration wants to grow it even more enormously. So don’t look for any tough choices. Look for more and more commissions to deliver up “solutions” that the weak kneed members of Congress can vote up or down for. This is gridlock by design.
Once you move most government functions to the federal level, how can anything possibly be accomplished? How do you pass a law that benefits New York and doesn’t harm Alaska? How much do Alaska and New York have in common? Perhaps that is why most major pieces of legislation coming out of Congress run into thousands of pages? Look at it this way, if a bill of twenty pages is applied differently to fifty states, you soon have 1,000 pages. But what the Constitution says is that there are a few enumerated powers given to the federal government and everything else is left to the states and the people. Let the people of Mississippi pass a law of twenty pages that suits the people of Mississippi and let the people of Idaho pass their own. This will bring about the ability for the other 48 states to look at these two examples and decide for themselves which one would work better in their state or choose a completely different path or none at all. But if it is all at the federal level you can yell and scream and jump up and down on your Congressman’s desk for all that matters and he can say, “Gosh, I’m just one of 435 members here. I agree with what you are saying, but…” If the issue is at the state level you have more clout and at the local level even more so.
But what we have is a government whose spending is out of control. We have a commission that will not report until after the mid-term elections and as sure as I draw a breath, their report will be full of new taxes including a Value Added Tax (VAT) to bring buckets of tax revenue to put out the spending conflagration. Sure there will be some spending cuts, mostly in the discretionary areas that don’t add up to much of the budget anyway, but probably make for good media coverage.
We need to shrink the monster. We need to take away from the federal government those responsibilities that are not spelled out in the Constitution and let the states and their residents decide how to handle the rest, if at all. If we don’t take these steps, the gridlock we see today will continue. The only difference will be that our Congressional representatives will be making over $200,000 a year before long to do what would get them fired in the private sector.
