Friday, August 13, 2010

Michigan's problems in a nutshell.

Albion's woes are typical. Unemployment rate of 40%

Learn from Texas. Get business friendly, and diversify. Learn from Texas.

From the Wall Street Journal:

Unnecessary Dancing on the touchy 14th amendment?

Among other things this story describes Carly Fiorina's discomfort in discussing Sen. Lindsey Graham's proposal to amend the 14th amendment to include language that 'allows Congress to determine conditions of "birthright citizenship"' so as to make it impossible for illegals to use "anchor babies."

I'm most definitely NOT a constitutional scholar, but the whole discussion seems to be unnecessary as does the Graham strategy. So, begging pardon from those more versed in the fine points of case law pertinent to the 14th amendment, I'll briefly sketch why I think the dancing, bobbing and weaving really needn't be indulged, and why Graham's strategy is not necessary, and how it can be argued the amendment as originally intended already excludes anchor babies from automatic citizenship. (And, I have no clue how this position would affect the Latino vote in California, if it were adopted by candidates out there. That's a political question. So, with those caveats, here 'tis):

The wording of the pertinent section of the amendment:

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.

During the original Senate debate on the clause, its author, Senator Jacob Howard of Michigan said it would not apply to Indians, but would apply to freed slaves. Why? The key phrase that allows that distinction to be made is "subject to the jurisdiction thereof". Indian tribes were given independent jurisdiction on reservations, were not treated as citizens of the U.S., were not taxed, nor subject to the same full set of laws as U.S. citizens. On the other hand freed slaves were subject to all the laws and taxation, in short, the full "jurisdiction" of the U.S., and thereby met both necessary conditions for citizenship. So, there children were eligible for citizenship.

During that same debate Howard provided a list of people he intended to exclude with the amendment: "Indians who maintain their tribal affiliations, persons born in the United States who are foreigners, as well as aliens who belong to the families of ambassadors or foreign ministers."

There were supreme court cases that provided some finer grained interpretation of the amendment as it pertained to Indian tribes, because there were varying levels of independency for the tribal units. For example, if a tribe were required to pay taxes to the U.S., its members were considered citizens. (In 1927 all tribal members were given citizenship, but the distinctions still remain useful in understanding the conceptual apparatus of the amendment.)

Another SC interpretation/ruling gave citizenship to children of long time Chinese citizens who had immigrated and were not returning. This latter ruling is one being relied upon by advocates of illegals today. But, be that as it may, this later ruling (or creative interpretation) apparently runs counter to the author's original intent.

For, consider this series of hypothetical scenarios and questions while looking at the wording of the text:

The pregnant wife of the ambassador of Freedonia takes a trip to Texas, and gives birth while there. Is the child a citizen of the U.S.? No. Child of ambassador.

Variation: The woman is now 'merely' a citizen of Freedonia, happens to be on a vacation trip, gives birth. Is her child now a citizen. Nope. Subject to Freedonian jurisdiction.

OK. Now, she's no longer a tourist, but has come over on some sort of work visa. Is her child a citizen of the U.S.? Nope. Subject of Freedonian jurisdiction.

OK, now she's snuck in, and working here for a month. Citizen? No. How about her child? No. Both are under Freedonian jurisdiction.

Finally, she's snuck in, been here a while, maybe five years, apparently to stay. Is her child a citizen?

Today's advocates for illegals would say, yes, because of the time factor and humanitarian concern with the difficulties that would be produced for mother and child if they were required to leave. Add to that, due to unscrupulous employers, she may have been paying in to services reserved for U.S. citizens, such as Social Security, and the humanitarian case becomes acute. So, there are some reasons for granting citizenship. Are they deciding? Should they be allowed to be deciding? This introduces a whole host of follow on considerations.

But, be all that as it may, what would good Senator Howard say? I believe he would once again say "nope".

Look again at the covering phrase for such cases as given in Howard's quote above:

"persons born in the United States who are foreigners"

Now, obviously, having used this phrase, Howard must have thought it logically possible that such folks could exist. It is also clear that he placed no temporal limits upon this status, that is; he does not say that there is some period of time beyond which people can move in logical space from being "born in the U.S. and foreigners" to being "born in the U.S. and citizens."

Now, how is it possible to be born in the U.S. and a foreigner? Clearly, by being the offspring of parents who themselves are foreigners, that is subject to the jurisdiction of another state.

His intent seems clear, and general. The phrase does not tie things down to a narrow subset of all resident foreigners, for instance ministers and ambasadors, and if interpreted thus, would lead to different results, in our cases, than did the reasonings of the Supreme Court.

Consider the case of the Chinese workers. They did not sneak in, but were recruited, came voluntarily, and in accord with U.S. law. They were indeed Chinese citizens. So, according to Howard, their children were Chinese citizens. Why were they granted citizenship by the Supreme Court decision? Not because of the wording of the amendment, nor because to do so was in the spirit of Howard's original intentions vis the meaning of that text. No, it was for humanitarian reasons. The difficulties involved in crossing the pacific back to China were obvious.

One can argue that these court decisions got it wrong in constitutional interpretation, even if they got it right on the humanitarian issue. One can argue that a better way could have been found to allow citizenship to these kids, (perhaps by targeted legislation or executive action of some sort) than providing a creative temporalized interpretation of the clause, that could then be used in future cases not envisaged by the Court at that time.

Now consider the case of the illegal from Mexico. Today's illegal immigrants may have been recruited, but obviously have not come in accord with the law. They have willingly done so. In some cases they have been here for some time, and have had kids. In those cases it would introduce hardships to repatriate them to Mexico. Are these hardships on a level with the hardships that would attend repatriation to China in the 19th century? Probably not.

But, none of this gainsays the most straightforward reading of the text of the 14th amendment. The solution here is not to amend that amendment, nor to introduce a new amendment, nor should it have been creative interpretation of the plain text of that amendment, but the solution surely lies in finding a legal and constitutionally valid route to either allowing the parents to stay, while not infringing on the privileges of those that have followed the law in attempting to gain citizenship, or in taking steps that would soften the blow of repatriation to the country of their jurisdiction. This could include legal action against Mexico and unscrupulous stateside employers these actions requiring them to pay most if not all of this burden, since it is their studied cynicism, ineptitude and laxity that has allowed this to go on for as long as it has.

And, finally, let us look at the case of freedmen. Slaves were obviously not recruited, but were brought to the U.S. against their wills, even if in accord with laws of the time. They were subject to the full jurisdiction of the U.S., whether they liked it or not. So, there was a moral case to be made that they and their children deserved citizenship due to the immoral nature of the circumstance of their becoming subject to the jurisdiction of the U.S. The wording of the amendment was tailored so as to make it clear upon reading it, that it was to give them and their children citizenship. That was the primary intent.

The case of present day illegals does not approach this latter in moral severity, nor does it approach that of the Chinese in level of hardship. It also does not fit with the original intent of the author of the amendment, to act as if things are otherwise. Let's return to a straightforward reading of the citizenship clause of the 14th amendment and find solutions to the humanitarian issues via other means than creative constitutional interpretation.

BBC World Service: Two Part Documentary, "Useful Idiots"

Definition: People who consider themselves so intelligent that cynical flattery by totalitarians will woo them into serving as apologists for said totalitarians.

The term is purportedly Lenin's. LISTEN HERE

Very interesting two part radio documentary. Part 1 has to do with Western apologists for Stalinist Russia, Walter Duranty and Paul Robeson among them.

Part Two deals with more recent examples, starting with Maoist China, and moving up to pre-war Iraq, notably including George Galloway disgraced former Brit parliamentarian, singing Saddam's praises.

Of note: many useful idiots are academics. One need also remember that the phenomenon was on full display during the Vietnam war, when academicians such as Noam Chomsky, film stars (Jane Fonda) and others made pilgrimage to Hanoi as our men languished in Hoa Lo. Many of those same people refused to admit the blood lust of the communists for many years after the war's end. For whom now do they apologize and rationalize?