Category Archives: Law

14th Amendment Jurisprudence For Dummies

Ann Coulter, Constitution, IMMIGRATION, Law

Perhaps Judge Andrew Napolitano, to whom Ann Coulter has already offered corrective feedback, should familiarize himself with 14th Amendment Jurisprudence:

… the cases in the first few decades following the adoption of the 14th Amendment leave the strong impression that it had something to do with freed slaves, and freed slaves alone:

– Supreme Court opinion in the slaughterhouse cases (1873):

“(N)o one can fail to be impressed with the one pervading purpose found in (the 13th, 14th and 15th Amendments), lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

– Supreme Court opinion in Ex Parte Virginia (1879):

“[The 14th Amendment was] primarily designed to give freedom to persons of the African race, prevent their future enslavement, make them citizens, prevent discriminating State legislation against their rights as freemen, and secure to them the ballot.”

– Supreme Court opinion in Strauder v. West Virginia (1880):

“The 14th Amendment was framed and adopted … to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States.”

– Supreme Court opinion in Neal v. Delaware (1880) (majority opinion written by Justice John Marshall Harlan, who was the only dissenting vote in Plessy v. Ferguson):

“The right secured to the colored man under the 14th Amendment and the civil rights laws is that he shall not be discriminated against solely on account of his race or color.”

– Supreme Court opinion in Elk v. Wilkins (1884):

“The main object of the opening sentence of the 14th Amendment was … to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States. … The evident meaning of (the words, ‘and subject to the jurisdiction thereof’) is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. … Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward, except by being naturalized. …”

One has to leap forward 200 years from “the founding of the republic” to find the first claim that kids born to illegal immigrants are citizens: To wit, in dicta (irrelevant chitchat) by Justice William Brennan, slipped into the footnote of a 5-4 decision in 1982. …

Read “Honest Columnist Forced to Correct No. 1 Cable Show.”


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Birthright Citizenship For All Was Read Into The Constitution

Constitution, Family, IMMIGRATION, Law

Donald Trump is on solid constitutional ground when he calls for the elimination of birthright citizenship—just as Ron Paul was hardly on constitutional quicksand when he did the same, as a candidate for president, in 2008. Rep. Ron Paul’s plank was to restore the original intent of the framers of the 14th Amendment,” about which the left-libertarian Richard A. Posner—judge, United States Seventh Circuit Court of Appeals, and lecturer at University of Chicago Law School—is agreed, too.

Section 1 of the Fourteenth Amendment provides that “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.”

Justice Posner, hardly an immigration restrictionist, has argued that “the purpose of the rule was to grant citizenship to the recently freed slaves and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally.”

Yes, the Constitution is vague, ambiguously written and unevenly applied.

Posner:

… There is said to be “a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. Obviously, this was not the intent of the 14th Amendment; it makes a mockery of citizenship.’” John McCaslin, “Inside the Beltway: Rotund Tourists,” Wash. Times, Aug. 27, 2002, p. A7.

We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. That abuse provides an argument for abolishing birthright citizenship. A constitutional amendment may be required to change the rule, thoiugh maybe not, see Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 116–17 (1985); Dan Stein & John Bauer, “Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants,” 7 Stanford L. & Policy Rev. 127, 130 (1996), since the purpose of the rule was to grant citizenship to the recently freed slaves and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. If birthright citizenship is not commanded by the Constitution, it can be eliminated by amending the statutory provision that I mentioned.

But closing the loophole that encourages foreigners to come to the United States solely to make their future children U.S. citizens would not address the larger question of birthright citizenship. For undoubtedly most children born in the United States to illegal immigrants are not born to persons whose motive for immigrating was based in whole or significant part on a desire to have U.S. citizen children.

Most countries outside the Western Hemisphere do not recognize birthright citizenship; instead they base citizenship of children on the citizenship of their parents or other lawful connections between the parents and the country (ethnicity or religion, for example). Should we adopt that approach, by constitutional amendment if necessary? (It may not be necessary, as I have suggested, but I take no position on that question.) The problem is that though it would discourage people from coming to the United States for the sole or main purpose of having children who would be U.S. citizens …

MORE.


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UPDATED: Disparate-Impact Doctrine: Doing Away With Due Process (Obama’s Race Database)

Constitution, Justice, Law, Private Property, The Courts

Is there any doubt the US Supreme Court is engaged in shameless social engineering, and now regularly exceeds its constitutional appellate jurisdiction? A scandalous example of this is Justice Anthony Kennedy’s swing vote in affirming the disparate-impact doctrine, thus doing away with due process (property rights have long since been sundered).

The Doctrine holds “that the law allows not only claims for intentional discrimination but also, claims that cover practices that have a discriminatory effect, even if they were not motivated by an intent to discriminate.” (CNN)

An example that comes to mind: A property owner (in name only) doesn’t want to sell a residential property in a quaint little town to a developer who’ll erect an apartment block on the small space, currently surrounded by family homes. The government decides that this would impede the ability of poorer minorities to move into this cute little hamlet, and sues the seller.

The SCOTUS Blog:

On June 25, 2015, the Supreme Court, by a five-to-four margin, upheld the application of disparate impact under the Fair Housing Act (“FHA”) in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. While upholding the theory, the Court imposed significant limitations on its application in practice. [Yeah, right!]

In a disparate-impact claim, a plaintiff may establish liability, without proof of intentional discrimination, if an identified business practice has a disproportionate effect on certain groups of individuals and if the practice is not grounded in sound business considerations. The Court, however, imposed important limitations on the application of the theory “to protect potential defendants against abusive disparate-impact claims.”

Is there any wonder Attorney General Loretta E. Lynch was so jubilant? She “released the following statement … after the Supreme Court ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc.:

“I am pleased that the Supreme Court has affirmed that the Fair Housing Act encompasses disparate impact claims, which are an essential tool for realizing the Act’s promise of fair and open access to housing opportunities for all Americans. While our nation has made tremendous progress since the Fair Housing Act was passed in 1968, disparate impact claims remain an all-too-necessary mechanism for rooting out discrimination in housing and lending. By recognizing that laws, policies and practices with unjustified discriminatory effects are inconsistent with the Fair Housing Act, today’s decision lends support to hardworking Americans who are attempting to find good housing opportunities for themselves and their families. Bolstered by this important ruling, the Department of Justice will continue to vigorously enforce the Fair Housing Act with every tool at its disposal – including challenges based on unfair and unacceptable discriminatory effects.”

UPDATE (7/25): The link between the affirmation of the disparate-impact doctrine and Obama’s race database is obvious. Have race data will travel.

Paul Sperry:

… Unbeknown to most Americans, Obama’s racial bean counters are furiously mining data on their health, home loans, credit cards, places of work, neighborhoods, even how their kids are disciplined in school — all to document “inequalities” between minorities and whites.

This Orwellian-style stockpile of statistics includes a vast and permanent network of discrimination databases, which Obama already is using to make “disparate impact” cases against: banks that don’t make enough prime loans to minorities; schools that suspend too many blacks; cities that don’t offer enough Section 8 and other low-income housing for minorities; and employers who turn down African-Americans for jobs due to criminal backgrounds.

Big Brother Barack wants the databases operational before he leaves office, and much of the data in them will be posted online.

So civil-rights attorneys and urban activist groups will be able to exploit them to show patterns of “racial disparities” and “segregation,” even if no other evidence of discrimination exists.

MORE.


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UPDATED: How Will Kelly Excuse Sandra Bland’s Arrest?!

Justice, Law, Natural Law, Rights, The State

It’ll be interesting to see how Megyn Kelly excuses the inexcusable and justifies the unjustifiable chain of events that culminated in Sandra Bland’s death, in a Waller County holding cell, in Texas. It’s probably futile to remind Ms. Kelly that what is permitted in law is often naturally illicit—in other words, wrong in natural law. Here follows the story of the demise of a young, innocent woman, via CNN:

Anger over Sandra Bland’s death in a Texas jail has boiled over after newly released video showed what happened at the traffic stop that led to her arrest.

Now, many question whether she should have been arrested at all.

The dashcam video shows Texas state Trooper Brian Encinia pulling Bland over July 10 for allegedly failing to use her turn signal. What started as normal conversation gets testy after Encinia asks her to put out her cigarette.

“I am in my car. I don’t have to put out my cigarette,” Bland says.

“You can step on out now,” Encinia replies.

Bland refuses to get out of her car, and the trooper opens her door and starts trying to pull her out of the vehicle.

What happens after that has ignited a debate about what the officer could have done versus what he should have done. …

MORE.

UPDATE: Kelly covered the arrest of Ms. Bland predictably. The less said, the better. This New York Times headline confuses matters:

“Dispute Over Sandra Bland’s Mental State Follows Death in a Texas Jail.”

The issue is Ms. Bland’s harassment and subsequent incarceration for no good reason; actions without which she would almost surely be alive today.


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Mosaic Law Was Not Meant For A Pack Of Baboons Or Charlie Mansons

Judaism & Jews, Law, Morality, Private Property

Myron Pauli shares thoughts on the Torah portion “Mishpatim” (about common law in the Book of Exodus), on the occasion of the anniversary of the birth of his late, beloved wife Linda Plotnick and the death of father Felix Pauli

The Torah can be divided into laws specifying the interaction between mankind and God such as prohibiting idol worship, and the interaction between mankind with mankind. Mishpatim contains much of the civil/common/secular laws. I will make some general observations rather than focus on specific laws:

FIRST: The laws should have a moral basis. Thus, laws should not be passed because the city council needs to refurbish the carpet or because a well-heeled businessman pays lawmakers to put his rivals out of business.

SECOND: The laws should be universal – hence they apply for all time and for all people. This is expressed in our own Declaration of Independence that all are equal in their God-given rights. It does not mean that I can slam-dunk equally with LeBron James – it is that we are equal under the law. This is the essence of the Rule of Law. The opposite is the “Law of Rule,” where the Czar or Pharaoh applies harsh laws to his enemies and no restrictions on his friends, or invents new laws or suspends old laws by his own whim.

THIRD: There are roughly 365 negative mitzvot and many of them deal with idolatry and the like. The number of civil-secular ones is smaller, perhaps around 200. Somehow, 200 prohibitions were enough for the ancient Israelites to function and thrive. This is distinct from America in 2015 which has over 80,000 pages in the Federal Register. Presumably some believe that 80,000 pages of laws make us more moral than the ancient Israelites, but I am skeptical.

FOURTH: I would like to consider 3 different philosophical views of property – those of Marx, Rosenbaum, and Moses. Karl Marx believed in communal property – hence, there could be no theft or coveting since everything was commonly owned. Individual property and individual responsibility were replaced by the commune and individual incentives to produce were replaced by communist coercion. Sadly, many people prefer to give up their individual responsibility to the communist whip although this concept of property has caused misery everywhere it has been tried.

Alisa Rosenbaum, better known as Ayn Rand, considered property sacrosanct and even above life itself. Thou shalt not steal, thou shalt not covet, and thou shalt not give thy property away – that is, compassion and altruism were dubious in her view. What you produced is yours and what I produced is mine. This was the perfect world for perfect people. Those who are too young to produce – children – were parasites with no place in her world. Nor did those who were too old, sick, stupid, or lazy. And without either compassion or children, it was a rather cold world with no means of sustainment.

Moses’ Torah recognizes the obligation to have and raise children and for children to love their parents and is thus self-sustaining. It also recognizes property rights and if one plants and cultivate an apple orchard, that orchard belongs to the producer. And those who are moral will be rewarded with rains and abundance. The owner owns all the apples on the trees, but if there is a surplus and apples fall on the ground, they belong to those in need. There is an incentive to own the trees rather than scavenge the leftovers, but there is also provision for the needy. So perhaps those 3000 year old ideas work better than the more modern proposed “improvements.”

FINALLY: I will temporary digress by departing from Mount Sinai for Philadelphia and quote Benjamin Franklin on the day the Constitution was adopted: “I agree to this Constitution … what may be a blessing to the people if well administered …. (however he noted that it) can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.”

John Adams said that our government was made only for a moral people. Thus it is true with any set of laws that they can only be as good as the people who abide by them. The Torah was not meant for a pack of baboons or Charlie Mansons. Throughout the Torah, Moses admonishes the people that good will happen to them when they follow the word of God and evil will happen when they disobey.

Thus, the needs of a civil society consist of a moral set of laws and a moral people to follow them.

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Barely a Blog (BAB) contributor Myron Pauli grew up in Sunnyside Queens, went off to college in Cleveland and then spent time in a mental institution in Cambridge MA (MIT) with Benjamin Netanyahu (did not know him), and others until he was released with the “hostages” and Jimmy Carter on January 20, 1981, having defended his dissertation in nuclear physics. Most of the time since, he has worked on infrared sensors, mainly at Naval Research Laboratory in Washington DC. He was NOT named after Ron Paul but is distantly related to physicist Wolftgang Pauli; unfortunately, only the “good looks” were handed down and not the brains. He writes assorted song lyrics and essays reflecting his cynicism and classical liberalism. Click on the “BAB’s A List” category to access the Pauli archive.


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No Salvation From The Gang of Nine

Constitution, Free Speech, Law, The Courts

By Myron Robert Pauli, Ph.D.

Every June is when the Supreme Court announces its decisions on the disputes on which it picks to rule. According to Chief Justice Charles Evans Hughes, “The Constitution is what the judges say it is.” Each year, they hand down very erudite but often nonsensical opinions citing previous erudite nonsensical opinions (known as “precedent”). If you trace back all the precedents, you might get a slight resemblance to the US Constitution, just as if you rotate 1 degrees each time for 180 times, you wind up pointing in the opposite direction.

From my view, the biggest nonsense of 2015 was Zivotofsky v. Kerry, a relatively inconsequential case over Congress instructing that passports for people born in Jerusalem list Israel as their birthplace. Now, the 4th clause of Article 1 Section 8 gives Congress authority over the rules of naturalization, which would seem to me, to cover citizenship status. Congress could declare Jerusalem births to be from Israel, Jerusalem, Palestine, Bolivia, or Mars. NO – said 6 Justices – that power is exclusively reserved for the president (Where is that stated in Article 2??).

Many were annoyed by the Obamacare decision – but there should be little surprise. In 1937, the Supreme Court had decided: (1) The 10th Amendment has no meaning. (2) Congress can hand out welfare, retirement, etc. “benefits” to individuals at will. (3) Congress can delegate legislative powers in the form of “regulations” which can be drafted by unelected bureaucrats and where citizens can be fined and imprisoned for violating. So, Gomer Pyle, where is the “surprise surprise surprise”? Congress surely didn’t read the 2900 page Affordable Care Act. I somewhat doubt that Obama read the 2900 pages and, in any case, has changed it at will every month. Why should a “wise Latina” like Sotomayor decipher 2900 pages of hieroglyphics? Besides, only one person in the galaxy understands what is in that glop and that is Professor Gruber. If hyperregulation is good on Mondays, why is it wrong on Tuesdays? Basically, the Supremes did not want to touch that greased pig of a bill.

The Court often rules for freedom of speech. This angers “conservatives” when the speech is smutty and angers “liberals” when it is plutocratic oligarchs funding 30 second political spots. Admittedly, the smut is on a higher intellectual and more honest than the 30 second ads. But is the Supreme Court responsible because more people watch smut than read the Bible? Is the Supreme Court responsible because people believe those silly spots where Hillary uses her billion buck fundraising booty from sucking up to the oligarchs and special interests to accuse Jeb of being a corrupt tool of the oligarchs and special interests and Jeb uses his billions to accuse Hillary of being the corrupt tool?

And, of course, we have gay marriage? Personally, I am not going to change because someone marries the same sex or a consenting bear or their toaster (but don’t fool around with the vacuum cleaner!). If millions are going to descend into Sodom because of a few people’s preferences, those millions cannot have very strong moral convictions. But again, did the Supreme Court cause “indecency” or are they just “following the election returns” (and popular trends)?

And the granddaddy of all brouhahas: abortion. Theoretically, the right to abortion follows the right of a person to “do what she wants with her body.” Hence, a person can chop off her leg, cook it in the over, and eat it. But America has not had 55 million cases of cannibalistic self-mutilation. America has had 55 million abortions since 1973. Is there not some responsibility for that among the tens of millions who decided to terminate the lives of those developing children?

When Stevens in Gonzales v. Raich said that a woman smoking dope in her basement interferes with interstate commerce, he also pointed out that if the law is idiotic, Congress and the president should repeal the law. Yes folk, don’t look at Ginsburg, Scalia, Roberts, and Rehnquist as the Blessed Mother and the Holy Trinity! If this nation is authoritarian, corrupt, bloated, idiotic, or immoral – time to gaze into the mirror. You will not receive Salvation from the Gang of Nine.

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Barely a Blog (BAB) contributor Myron Pauli grew up in Sunnyside Queens, went off to college in Cleveland and then spent time in a mental institution in Cambridge MA (MIT) with Benjamin Netanyahu (did not know him), and others until he was released with the “hostages” and Jimmy Carter on January 20, 1981, having defended his dissertation in nuclear physics. Most of the time since, he has worked on infrared sensors, mainly at Naval Research Laboratory in Washington DC. He was NOT named after Ron Paul but is distantly related to physicist Wolftgang Pauli; unfortunately, only the “good looks” were handed down and not the brains. He writes assorted song lyrics and essays reflecting his cynicism and classical liberalism. Click on the “BAB’s A List” category to access the Pauli archive.


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