Richard Epstein eviscerates John Roberts' reading of the 14th Amendment

In The Wall Street Journal: 

 In Trump v. Barbara, Chief Justice John Roberts screams from the rafters that the framers of the 14th Amendment affirmed “citizenship, then as now, was the right to have rights—freely to participate in our community.” That’s contrary to history. The framers made sure that the newly freed black citizens didn’t get the vote, because if that benefit had been included, the amendment wouldn’t have passed. 

It took the 15th Amendment, ratified more than 1½ years later, to enfranchise black Americans. And that still didn’t extend the franchise to all adult citizens. In Minor v. Happersett (1874), the Supreme Court unanimously held that although women were citizens, the 14th Amendment didn’t confer on them the right to vote. The justices applied the then-standard definition of citizenship as an exchange of protection by the sovereign for loyalty of the citizens. It took the 19th Amendment to enfranchise women as a matter of constitutional right. In the meantime, voting was left exclusively to the states. The Civil Rights Act of 1866 covered only the private rights to contract, testify and make wills. No political rights were involved. 

The chief justice wholly failed to explain how his flawed originalist methodology supported birthright citizenship for the children of illegal aliens or temporary visitors. His blunder is captured in the false proposition that birthright citizenship “crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution” as an outgrowth of the common law of England. 

Not so. English law had adopted a form of birthright citizenship—but, as Blackstone noted, not as a common-law matter but because naturalization “cannot be performed but by an act of parliament.” The English statutory framework was explicitly rejected in the U.S. Alexander Hamilton noted in Federalist No. 32 that the constitutional requirement of a “uniform” naturalization law conferred exclusive jurisdiction on the federal government, to the exclusion of the states. 

The chief justice never cites that clause or the Naturalization Acts of 1790 and 1795, which limited naturalization to “free white persons” who had resided in the U.S. for two years (later raised to five), were of good character, and had explicitly renounced their loyalty to all other sovereigns, and determined the status of minor children solely by the status of their parents. That provision excluded all people of African descent until reversed by the 1870 Naturalization Act, which didn’t apply to people of Asian descent until after 1900. Chief Justice Roberts then cites a group of irrelevant state-law cases, none of which deal with birthright citizenship, but addressed such issues as the ability to inherit under state law, to hold state office, or to vote in state elections. 

A key to the constitutional structure was the distinction between “subject to the jurisdiction thereof” in the 14th Amendment’s Citizenship Clause and “within the jurisdiction” in the Equal Protection Clause. The latter isn’t limited to citizens, as the Privileges or Immunities Clause is, but applies to all persons. 

That rests on Blackstone’s explicit distinction between “local” and “natural” allegiance. The former requires all persons to respect the criminal and civil law while in a foreign nation, but ceases to bind them on their departure. Local allegiance never confers any opportunity to obtain citizenship, which natural allegiance does. The chief justice incorrectly collapses the two into one by writing that “the Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.” The Equal Protection Clause had nothing to do with citizenship. How could the 14th Amendment confer automatic birthright citizenship when the 1870 statute set out more-rigorous conditions to apply for naturalization? 

Against this background, U.S. v. Wong Kim Ark (1898) wrongly held that birthright citizenship attached to a man born in the U.S. whose Chinese parents were legally resident in the U.S. In so holding, Justice Horace Gray committed three major blunders. First, the Naturalization Acts then didn’t make Asians eligible for citizenship until after 1900. Second, Wong Kim Ark traveled on a Chinese passport and thus hadn’t renounced his former sovereign. Third, an elaborate set of treaties with China prevented any Chinese national from applying for U.S. citizenship.

All these arguments are found in my friend-of-the-court brief, written with Benjamin Flowers; in my extensive comments on the oral argument; and in my recent book, “The Myth of Birthright Citizenship.” The chief justice found it all too comfortable to ignore every objection.

Mr. Epstein is a professor of law and NYU Law School, a senior lecturer at the University of Chicago and a Senior Fellow at Civitas Institute. 

Alito: So the Supremes rule by default that the words "subject to the jurisdiction" in the 14th Amendment are indeed superfluous, which is nuts

 Alito:

... Third, the Court cannot explain why the phrase “subject to the jurisdiction” of the United States applies to naturalized citizens. All naturalized citizens, like everyone else who is present in this country, must obey the law, so if that phrase meant what the Court thinks, it is superfluous. By contrast, if it means not being “subject to any foreign power,” it serves an identifiable purpose and explains why the naturalization statutes, both before and after the adoption of the Fourteenth Amendment, required those seeking naturalization to renounce allegiance to any other country. For these reasons, the Court’s interpretation of the Fourteenth Amendment’s Citizenship Clause fails on textualist grounds.

3

The Court does not confront these problems because it pays little attention to the constitutional text. Instead of performing its own textual analysis, the Court leans on precedent that glosses the text. Ante, at 10–12. But none of the cases it cites analyzed the text of the Fourteenth Amendment’s Citizenship Clause. ...

 

"The 14th Amendment was never that great"

 

She's so . . . u n u s u a l

 Sotomayor: Do You Want to 'Unnaturalize People?'

... Sauer replied, “No, we believe the court should do what it did in Sessions v. Morales-Santana, where there was a ruling that would have deprived people who are already citizens of citizenship, and the court said this applies prospectively only. We think that’s the appropriate course here. ..."

 

This is so great

 

Drudge version:

RUBIO MAY NEED TO SURRENDER PASSPORT; Neither parent was citizen at time of his birth...

 

Actual version:

 

Trump’s Own Cabinet Would Have Been Harmed by Birthright Citizenship Move

... Rubio, who was born to Cuban parents who were not American citizens at the time of his birth ...

 

 

The Newsweek story simply omits the crux interpretum involved in "and subject to" in the 14th Amendment.

Rubio's parents were subject to the jurisdiction of Cuba, and therefore so was he, making none of them citizens.

Same was true of Native Americans, none of whom were made citizens by the 14th Amendment. They were subject to The Nations, which the federal government recognized by treaties as nations within the American nation. Native Americans received citizenship by law passed in 1924.  

14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens ...                                               

It is high time that "and subject to the jurisdiction thereof" be treated seriously and not superfluously.  

 

Ukrainian-American Republican Victoria Spartz (IN-5), born in the former Soviet Union in 1978, thinks you are not entitled to due process if you violated the law

 She didn't become a U.S. citizen until she was 28, but somehow she gets to decide important matters about spending my money and taxing my wallet without knowing that everyone within the United States is entitled to due process of law, whether here lawfully or not, under the Fifth and Fourteenth Amendments.

You cannot just scoop people up and disappear them without a hearing before a judge in a court of law. 

That points up the gravity of the crimes Biden committed by letting in so many people so lawlessly. The burden of removing all these people under our laws is heavy. The blame is all his.

But the law is the law.

Start violating due process for some people, and eventually you'll violate it for others, maybe even for ignorant immigrants such as Victoria Spartz who don't know what the hell they are talking about.

 

 

Ronald Reagan appointee blocks Trump's birthright citizenship executive order

It is good that warriors such as we meet in the struggle of life... or death.

 Federal district court judge temporarily blocks Trump’s birthright citizenship order

... “Ample historical evidence shows that the children of non-resident aliens are subject to foreign powers — and, thus, are not subject to the jurisdiction of the United States and are not constitutionally entitled to birthright citizenship,” Rosenberg wrote.

Ultimately, the case is likely to be appealed all the way to the U.S. Supreme Court.

Native Americans were not made citizens by the 14th Amendment of 1868. It took an act of Congress in 1924 to do that. 

It is good that this will be decided by the Supremes, maybe, once and for all, maybe.

Michael Anton lol: Leftists argue that the otherwise implacably racist US statesmen of the 19th century left us one instance of openhearted liberalism in the 14th Amendment called birthright citizenship

 The idea that the framers intended to extend citizenship to anyone whose parents snuck across our border is absurd and betrays a fundamental misunderstanding of the nineteenth century American mind.

I note, however, how convenient it is for leftists who constantly attack all past American statesmen for being implacably “racist” to suddenly discover this one instance of their openhearted liberalism. Really? The same bewhiskered, frockcoated “racists” up to their eyeballs in white supremacy nonetheless decided to open America’s borders to the entire world? It’s an obvious lie of convenience and should be dismissed with contempt.

More.

Sad to learn Ron Radosh joined the enemy

In a cogent essay, a leading conservative scholar and former high ranking State Department official, Peter Berkowitz, examines why about half the country believes elite legal progressives “have weaponized federal law enforcement.” He notes that “four criminal indictments [were] brought against Trump−all between April 4 and August 10, 2023, more than two years after he left office and just as the 2024 campaign ramped up….” In other words (as the Marxists used to say) it was no coincidence. 

Berkowitz characterizes as “reckless” the Colorado Supreme Court decision to remove Trump from the ballot on the grounds that he violated the 14^th Amendment’s prohibition on those who “engaged in insurrection.” He points out that Trump has never been charged (let alone convicted) of insurrection. 

Berkowitz excoriates neoconservative Robert Kagan’s argument that “the threat Trump poses to freedom and democracy in America justifies abusing the law to banish him from the political arena.” In this sense, Berkowitz notes, ”anti-Trumpers thereby facilitate the unraveling of the rule of law that they seek to avert.” 

Gabe Schoenfeld and fellow apostate Ron Radosh devote an entire essay to rebutting Berkowitz’s argument. They defend the efforts by the Colorado Supreme Court and the Maine Secretary of State to disqualify Donald Trump from running for president as “the working out of the rule of law.” Further, Schoenfeld and Radosh laud Kagan’s endorsement (he “deserves high praise”) of “taking every conceivable measure” to stop Trump.

What better language than “every conceivable measure” to describe the logic of war?

More.

Mukasey: Trump was never an "officer" of the US and the Supremes have said so twice, ergo, they'll have to defeat him at the ballot box

Trump can't be excluded from the election on the grounds that he was an officer under the 14th Amendment.

Here:

In U.S. v. Mouat (1888), the Supreme Court ruled that “unless a person in the service of the government . . . holds his place by virtue of an appointment . . ., he is not, strictly speaking, an officer of the United States.” Chief Justice John Roberts reiterated the point in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010): “The people do not vote for the ‘Officers of the United States.’ ” ...

 Mr. Trump took an oath as president pursuant to Article II, not as an officer pursuant to Article VI. Because the Insurrection Clause applies only to those who have taken an oath “as an officer of the United States,” he can’t be barred by that clause from serving in any capacity. ...

Even a criminal conviction wouldn’t bar him from seeking and winning the presidency. The Constitution specifies only that a person seeking that office be at least 35, a natural-born citizen and a 14-year U.S. resident. If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020—by defeating him in an election.

"Corporations are people" is based on the 14th Amendment, except it wasn't

Adam Winkler of the UCLA School of Law for The Atlantic explains, here or here.

Phyllis Schlafly correctly understood natural born citizenship to turn on the question of jurisdiction

Here is Schlafly in 2004:

The extensive litigation concerning American Indians illustrates that consent rather than place of birth is what controls citizenship. Indians did not receive citizenship until conferred by congressional acts in 1887, 1901 and 1924, long after ratification of the Fourteenth Amendment.

The Constitution states that "no person except a natural born citizen" is eligible to be President. Everyone recognizes that this provision disqualifies the Governors of California and Michigan who were born in Austria and Canada, respectively.

On the other hand, then Michigan Governor George Romney, whose birthplace was Mexico, ran for president in 1968, and Senator John McCain, whose birthplace was the Panama Canal Zone, ran for president in 2000. Both were "natural born citizens" because their parents were U.S. citizens and subject to the jurisdiction of American sovereignty.

It's not the physical location of birth that defines citizenship, but whether your parents are citizens, and the express or implied consent to jurisdiction of the sovereign.

Laurence Tribe thinks Ted Cruz is ineligible from one perspective, and buries "reputed born in the country" during the founding for a reason

Here in the Boston Globe:

'To his kind of judge, [Ted] Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive. ... This narrow definition reflected 18th-century fears of a tyrannical takeover of our nation by someone loyal to a foreign power — fears that no longer make sense.'

Oh really? They make more sense now than ever with the diffidently un-American Obama in the Oval, whom the originalist position should also have prevented but didn't precisely because liberal interpreters like Tribe have prevailed by burying truths.

Such as: Children born abroad to US diplomats and soldiers were considered at the time of the American founding "reputed born in the country". For example, Emer de Vattel, paragraphs 216ff., whom the founders used like a textbook:

"... it is not naturally the place of birth that gives rights, but extraction. ... the children born out of the country in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country."

So it's not just a simple matter of being born on US soil, otherwise every slave child ever born here would have been a natural born citizen, making that whole 14th Amendment thingy kind of beside the point. Tribe is taking only half of the originalist position and using it against Cruz, when there is another half, which should have made Obama ineligible.

Ted Cruz is not a natural born citizen only in part because he was born in Canada without military, diplomatic or some other "official" American cover, but Barack Obama is not a natural born citizen because he was born without citizen cover from both parents. Tribe wants to ignore the latter in the case of Cruz to obscure Obama's ineligibility and argue for the priority of soil against Cruz. It's the way liberals argue, by not telling the whole truth.

But blood was equally important with soil at the founding, and you might say that in the matter of presidential eligibility, the genius of the constitution was singularly expressed in the fusing of jus soli and jus sanguinis in the person elected to embody the executive power in order to protect it, and us.

Presidents should be born in the country, to (married heterosexual) citizens.

But good luck getting that through after what Obama and the Democrats have done to this country. Next stop, a test-tube president whose parents are a Chinese lesbian from Vancouver married to her kitty cat from a pet shelter in Seattle.

None of our early presidents were natural born citizens, but were grandfathered in by Article II

"Publius Huldah", here, correctly making the proper distinction between citizens, and natural born citizens who are eligible to be president:

In § 214, Vattel states that “fundamental law” may withhold from naturalized citizens some of the rights of citizens, such as holding public office. The Constitution is our “fundamental law”; and, following Vattel, Art. II, §1, cl. 5 withholds from naturalized citizens (except for our Founding Generation which was “grandfathered in”) the right to hold the office of President.

Remember! None of our early Presidents were “natural born Citizens”, even though they were all born here. They were all born as subjects of the British Crown. They became naturalized citizens with the Declaration of Independence. That is why it was necessary to provide a grandfather clause for them ["or a Citizen of the United States, at the time of the Adoption of this Constitution"]. But after our Founding Generation was gone, their successors were required to be born as citizens of the United States - not merely born here (as were our Founders), but born as citizens.

And do not forget that the children born here of slaves did not become “citizens” by virtue of being born here. Their parents were slaves; hence (succeeding to the condition of their parents) they were born as slaves. Black people born here did not become citizens until 1868 and the ratification of the 14th Amendment.

So! Do you see? If Our Framers understood that merely being born here were sufficient to confer status as a “natural born citizen”; it would not have been necessary to grandfather in our first generation of Presidents; and all the slaves born here would have been “natural born citizens”. But they were born as non-citizen slaves, because their parents were non-citizen slaves.

Scott Walker has nothing up his sleeve

In the last week Governor Scott Walker has stated he's for the 14th Amendment as currently (mis)interpreted, establishing birthright citizenship as the law of the land, for repealing birthright citizenship going forward, and against taking a position on the subject for now!

Scott Walker is a fish out of water, flopping on the pier.

CNN (justly) crucifies him for it, here.

On the merits of the issue Walker's flip-flops clearly show that he perceives the acceptable establishment view to be out of step with what he thinks the voters feel about it. Regular middle class folks with whom Walker identifies hate it that they're footing the bill for people who cut in line, go on government assistance and even commit crimes without serious consequences.

On the politics Walker looks unprofessional and unready for primetime, and when you get down to it, divided in his own mind about the issue.

The real Scott Walker has always been a little soft on illegal aliens but keeps changing his position because he senses voters aren't soft on them.

In view of his previously stated support for a pathway to citizenship, it's pretty obvious Walker has never had the fire in the belly on this subject which the Americans whose vote he's angling for possess.

And it's too late to do anything about it now.

He's done.

If he were wise he'd find a way to bow out, throw his support to Trump, and hope for a position in a Trump administration where he can do to government unions nationally what he's done to them in Wisconsin.

Please explain to us how and why "and" is superfluous in the 14th Amendent

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens . . .."

This Amendment had a specific meaning, not a broad meaning. Its intent was to settle the citizenship of emancipated slaves who had hitherto been State-less, that is, in a kind of limbo with respect to jurisdiction because they had been property, not persons. The Amendment meant to state that once freed they became persons who came under the jurisdiction of the United States, whether they were born slaves here or abroad.

Indians were not understood to be subject to the jurisdiction of the United States at the time, but were subjects of the Indian nations, and were thus not granted citizenship by the Amendment in 1868, else the 1924 Indian Citizenship Act making them so had been unnecessary.

Children of diplomats born in the US while their parents were representing the countries whence they came were not thereby granted citizenship either, because they like their parents were subjects of foreign jurisdictions. Senator Jacob M. Howard of Michigan, the author of the citizenship clause, said the Amendment excluded “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

Thus children born here to illegal aliens, like their parents, are subject to the jurisdictions whence they came and should not be granted American citizenship now, unless it please the people to do so.

It's that simple.

And the Congress has every right to make that rule consistent AT ANY TIME if it has not been so in practice or in litigation, as Article One, Section Eight of the Constitution makes clear:

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Meanwhile the importance of jurisdiction for citizenship is otherwise seen to be paramount because no one except an idiot or a malcontent questions the citizenship of a John McCain or a Ted Cruz because they were born to citizens while living abroad.

And even if it could be proven that a Barack Obama was born abroad it wouldn't make any difference to his citizenship because his mother was a citizen of the United States and subject to the jurisdiction thereof.

Anyone in the world can renounce jurisdiction and pledge allegiance to another flag if one chooses, and it is entirely within our rights as Americans to set the conditions for welcoming as well as bidding farewell to those who do so. 

Nat Hentoff Says Obama Wasn't Fully Qualified To Teach Constitutional Law At The University of Chicago

Here, but that's just for starters:

Hentoff called this the worst state the country has ever been in, “Even worse than Woodrow Wilson’s regime, when people could be arrested for speaking German.” Compounding the problem he says, is the digital age, which has allowed the president to engage in unprecedented domestic spying with the apparatus of the National Security Agency. WND asked if Obama really posed such a threat, considering he was a professor of constitutional law. “People forget, he taught a course that he was not fully qualified to teach. But nobody seemed to care,” Hentoff observed.

He also pointed out that Obama was the only editor of the Harvard Law Review to never publish an article, something that went virtually unnoticed when voters considered his qualifications. “See, that was a case of affirmative-action and people feeling, ‘Hey we ought to do something important, symbolically, and here’s a black guy, and he’s articulate, so we’re gonna do this.’”

Hentoff mentioned that former U.S. Supreme Court Justice William O. Douglas, the man Time Magazine once called “the most doctrinaire and committed civil libertarian ever to sit on the court,” once personally lectured him that “Affirmative-action on a racial basis is a total violation of the 14th Amendment, no doubt about it.” And, referring to Obama’s presidency, the journalist said, “That’s what that kind of affirmative-action did for us.”

He told WND that he firmly believed the president does not care about due process, the separation of powers, the concept of a self-governing republic or many other basic American ideals. And that’s why, he said, “What Obama is doing now is about as un-American as you can get.” Hentoff wanted to make sure no one thought he was engaging in hyperbole. He said it was literally true that Obama is “the most un-American president we’ve ever had.” And just to make sure everybody heard him, he added, “I hope the FBI got all of that.”

The Constitution Was in a Shambles Long Before Obama Came on the Scene

So says Lawrence Hunter here, who thinks the expedient of a Bill of Rights was only a parchment barrier to begin with:

The Founders gave us The War Power Clause of the Constitution vesting the exclusive power to declare war with Congress. Politicians replaced it with The War Powers Resolution and presidential wars of whim.

The Founders gave us myriad constitutional restrictions on the powers of the federal government both explicit and implicit. Politicians and judges replaced them with a series of court rulings, on the Commerce Clause for example, so sweeping in their expansion of the federal government’s regulatory powers beyond the Constitution’s writ that, in the words of Cornell Law Professor William Jacobson, “The Commerce Clause has proven voracious enough to swallow the rest of the Constitution. Any scraps left over will be devoured by the Due Process and Equal Protection clauses of the 14th Amendment.”

The Founders gave us habeas corpus and the Fourth Amendment, protecting against arbitrary arrest and guaranteeing that people would be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Politicians replaced them with The Patriot Act and the Homeland Police State, preventative detention, rendition, unauthorized wiretaps, secret searches and seizures and TSA.

The Founders gave us the Fifth Amendment, guaranteeing the people protection against over-reaching police and prosecutors, forced self-incrimination and double jeopardy, and against laws that would confiscate private property without due process and just compensation. Courts and Politicians gave us a series of rulings and legislation allowing the police, prosecutors and judges to act arbitrarily in the name of the general welfare, public safety and national security without regard to the cherished Rights of Englishmen that were passed down to us through the United States Constitution.

The Founders gave us the Eighth Amendment protecting the people against the imposition of excessive fines and infliction of cruel and unusual punishments. PB&J gave us RICO, prosecutorial charge stacking, extortionate plea bargaining, lawless and pathological judicial/prosecutorial misconduct, GITMO and water boarding.

Obama: When Life Begins Was "Above My Pay Grade"

But not now:

Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom 

[at the expense of someone else's life],

and affirms a fundamental principle: that government should not intrude on private family matters

[like buying health insurance, giving food and water to the chronically hospitalized, eating hamburgers and french fries for lunch, smoking cigarettes around your kids, spanking them, purchasing and using trigger locks . . . and once upon a time selling your slaves' children to the highest bidder].

I am committed to protecting this constitutional right


[except for the aborted child]

[which by the way was never intended by the framers of the 14th Amendment, but I digress].

I also remain committed to policies, initiatives, and programs that help prevent unintended pregnancies, support pregnant women and mothers, encourage healthy relationships, and promote adoption

[all of which are an intrusion on private family matters].

And on this anniversary, I hope that we will recommit ourselves more broadly to ensuring that our daughters have the same rights, the same freedoms, and the same opportunities as our sons to fulfill their dreams

[except for fatherhood and the right also to kill their unborn children].

-- Barack Insane Obama, January 22, 2011, here

In August of 2008, here, deciding when a baby is entitled to human rights was above his pay grade.

Obviously it isn't now. A baby isn't entitled to protections. A father isn't either. Only a woman is. That's what Obama is all about, not equality of rights, but special rights for protected classes of human beings. And that makes him no different than the slave holders of the past. 

When Will We Say NO! To Revolutionary Jurisprudence?

From the dissenting opinion of William H. Rehnquist (1924-2005) in Roe v. Wade, January 22, 1973:

"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.

As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.

By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.

While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.

[T]he drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."


May he rest in peace.