Category Archives: Constitution

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.”

Ann Coulter Offers A Corrective To Judge Andrew Napolitano

Ann Coulter, Constitution, IMMIGRATION, libertarianism, Liberty, Neoconservatism, Paleolibertarianism

I’ve been following Judge Andrew Napolitano long enough to know he is a Reason-type, left-libertarian, who supports Civil Wrongs legislation, even coming down occasionally against the most basic of liberties: absolute freedom of association and the rights of private property.

Therefore, I like not only that Ann Coulter is finally naming names, but that she has offered a serious corrective to the Judge’s ideologically skewed facts, in “Fox News anchored in stupidity on 14th Amendment”

… Judge Andrew Napolitano, Fox’s senior judicial analyst … at least got the century right. He mentioned the Civil War – and then went on to inform Bream that the purpose of the 14th Amendment was to – I quote – “make certain that the former slaves and the native Americans would be recognized as American citizens no matter what kind of prejudice there might be against them.”

Huh. In 1884, 16 years after the 14th Amendment was ratified, John Elk, who – as you may have surmised by his name – was an Indian, had to go to the Supreme Court to argue that he was an American citizen because he was born in the United States.

He lost. In Elk v. Wilkins, 112 U.S. 94, the Supreme Court ruled that the 14th Amendment did not grant Indians citizenship.

The “main object of the opening sentence of the 14th Amendment,” the court explained – and not for the first or last time – “was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes and to put it beyond doubt that all persons, white or black … should be citizens of the United States and of the state in which they reside.”

American Indians were not made citizens until 1924. Lo those 56 years after the ratification of the 14th Amendment, Indians were not American citizens, despite the considered opinion of Judge Napolitano.

Of course it’s easy for legal experts to miss the welter of rulings on Indian citizenship inasmuch as they obtained citizenship in a law perplexingly titled: “THE INDIAN CITIZENSHIP ACT OF 1924.”

Yeah, Trump’s the idiot. Or as Bream said to Napolitano after his completely insane analysis, “I feel smarter just having been in your presence.”

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Incidentally, it is true that since “Adios!” Ann Coulter can do no wrong. That she has recovered recently and magnificently does not mean that you should forget the years of neoconism, lauding the lovely Bush wars (calling them magnificent), ignoring immigration, and being wrong on too many things. I didn’t read her column for years (except on court cases and feminism) until now. I bought only “Treason,” which is a great book. The rest of her books were witty riffs on the theme, “Liberals this; liberals that,” seldom considering that Repubs are liberals too. To forget what neoconism’s most bright and beautiful representatives had wrought is unforgivable.

However, the always-adorable Ann is fast making up for past sins.

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 …

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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.

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