Category Archives: Constitution

You Say McKinley; I Say Denali

America, Constitution, Federalism, Race, States' Rights

To me it seems natural and organic for the people of Alaska to name the hilly protrusions along their stomping ground.

Aaron Goldstein, at The American Spectator, doesn’t wish “to make mountains” of the fact that his Highness, Barack Obama, changed the name of Mount McKinley to Denali. Instead, Goldstein laments the president’s flouting of the Constitution or the federal scheme (not quite sure which).

Can we agree that federalism, like freedom, is long dead, and is the stuff of nostalgia?

The other thing I wonder about is the ease with which my fellow Americans offend native Americans (Indians), as opposed to the crippling fear they have of saying anything that might make blacks mad.

It’s to the credit of native Americans that they are less menacing.

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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