Constitution Archives - Page 3 of 8

Hmm, getting rid of part of the US Constitution by a stroke of his pen? It’s Section 1 of the 14th Amendment (1868) that gives automatic citizenship to children born on US soil, even if their parents aren’t citizens.

He said “he had always been told ‘that you needed a constitutional amendment to end birthright citizenship. Guess what? You don’t.”

“You can definitely do it with an Act of Congress… But now they’re saying I can do it just with an executive order. It’ll happen. With an executive order.'”

As someone from the Boston Globe put it, “US conservatives have suffered from ABDS (anchor baby derangement syndrome) for years, and have been trying to get rid of so-called birthright citizenship, even though it… was enacted by… Republicans trying to help freed slaves after the Civil War…” Or maybe because of that.

A few questions popped up:

Question 1: Is he lying about the history of birthright citizenship, or is he just ignorant?

Birthright citizenship Wasn’t Born in America. Blame Elizabeth I for his least-favorite policy.

Also, it is a hallmark of New World democracies – “Nearly every nation in the Western Hemisphere, including Canada, Brazil, Argentina, and Venezuela, offer some form of unconditional birthright citizenship to children born in-country.”

So his assertion, going back at least to 2015, “that the United States is ‘just about’ the only country ‘stupid enough’ to grant citizenship to all children born within its borders is easily proven false.”

Question 2: What are we talking about anyway? “You can be born into U.S. citizenship by being born in the United States—the principle known as jus soli, or ‘right of the soil.’ Most countries in the Americas feature jus soli citizenship. And you can also be born into U.S. citizenship by being born to U.S. citizens, even if you’re born abroad—a concept known as jus sanguinis, or ‘right of blood.'”

“The traditional interpretation means that people with diplomatic immunity like an ambassador, would not be subject to US law, so their offspring would not be citizens by birthright. The regime “wants to bend that to mean ‘illegal’ immigrants. It’s ridiculous because they are bound by our laws, clearly.”

“The majority view is that the words mean exactly what they say—a reading the U.S. Supreme Court agreed with in the 1898 case of United States v. Wong Kim Ark, in which it rejected a government attempt to deny citizenship to the child of Chinese immigrants.”

Question 3: Who the heck are “they” who are putting these ideas in his head? Initially, I assume it was a function of advisor Stephen Miller or maybe some crackpots at FOX. I discovered that his people are pretty good at finding folks on the fringes of academia.

“Peter H. Schuck… and Rogers M. Smith… have for years been beating the drum for the idea that the Fourteenth Amendment means something radically different from its historical meaning, permitting Congress to strip these children of their citizenship and potentially render them stateless. Though Schuck and Smith are respected, few other serious constitutional scholars have joined their parade.”

There are a few others. “Writing in The Washington Post, the former Trump White House aide Michael Anton has now proposed…an executive order [that] could specify to federal agencies that the children of noncitizens are not citizens.'”

“Anton is not one of the ‘great legal scholars, the top’ whose authority Trump has claimed… He gained notoriety during the presidential election by comparing the Hillary Clinton campaign to an al-Qaeda hijacking. Voting for Trump, he argued, was a meritorious act of destruction, the equivalent of forcing the Flight 93 hijackers to crash into the ground.”

The executive order on birthright citizenship would fail to address his stated concerns while undermining fundamental American ideals. Even the outgoing Speaker of the House Paul Ryan (R-WI) says “you obviously cannot do that.”

The only joy I got from this whole scenario is Borowitz satire: He Strips Citizenship from Children of Immigrants, Thus Disqualifying Himself from Presidency.

Earl Warren versus “people are corporations”

A leader of the Republican Party for more than a decade, Roscoe Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him.

Earl Warren Sometime in 1973 or early 1974, I was in a class at the SUNY College of New Paltz. It was my only course, 15 credits, in political science, and, oddly, I don’t remember much about it except save for the fact that it was conducted by the late Ron Steinberg.

Except for one thing: we all got to meet retired US Supreme Court Chief Justice Earl Warren in his office in Washington, DC. And not a meet-and-greet but him talking with us for at least a half hour, and then the dozen or so of us able to ask him questions.

Earl Warren is the guy whose court made many monumental decisions between 1953 and 1969 when he retired.
They included:
*attempting to end segregation policies in public schools (Brown v. Board of Education)
*ending anti-miscegenation laws (Loving v. Virginia)
*ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut)
*protecting the rights of the accused (Miranda v. Arizona)
*providing lawyers from https://www.denvercocriminaldefenselawyer.com/ to the indigent (Gideon v. Wainwright)
*codifying one person, one vote redistricting (Baker v. Carr)
*freedom of the press (New York Times Co. v. Sullivan)

The question I had must have been stated ineloquently because he didn’t know what I was getting at. I was probably nervous. Finally, I asked him about the precedent of the Court considering corporation as people back in the late 19th century. He said that the Court got it wrong back then.

Earl Warren, who died in July 1974, would have appreciated this article, “‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie: How a farcical series of events in the 1880s produced an enduring and controversial legal precedent.” It involved the Southern Pacific Railroad Company, “owned by the robber baron Leland Stanford,” and the corporation’s lawyer, Roscoe Conkling.

Former President Harry S. Truman applauded the newly-retired Warren in this January 1970 California Law Review article. To the point of my question, Truman wrote:

“I would suggest that it is at least symptomatic of a conservative in today’s society that [Warren] is deeply concerned with the faceless, seemingly randomly and capriciously directed activities of the gigantic institutions which influence the direction of modem life. Under this definition, a conservative is one who worries that the balance of power in this nation has shifted in favor of oversized corporations, government agencies, labor unions, universities, foundations, and institutionalized groups which draw together shifting combinations of some or all of these.”

Happy Constitution Day.

Book review: The Quartet by Joseph J. Ellis

Ellis reminds us that democracy was viewed skeptically in the 18th century

Given all the other tomes on my bookshelf, I surprised myself by checking out from the library, The Quartet by Joseph J. Ellis (2015), the author of Founding Brothers and American Sphinx, about Thomas Jefferson.

The subtitle, Orchestrating The Second American Revolution, 1783-1789, informs how George Washington, James Madison, Alexander Hamilton and John Jay, along with others such as Robert Morris and Gouverneur Morris (not related), got the thirteen colonies, who had fought off the British, came to accept another centralized government.

A lot of reviewers noted, and it was my experience as well, that our American history courses in high school presented the narrative of the last quarter of the 18th period woefully incompletely. There was the revolutionary fury of the Declaration of Independence and the war, which was reasonably well laid out. The Articles of Confederation -they failed, but why? – followed. Then the Founders came up with the Constitution – but how? – including the Bill of Rights.

In fighting the American Revolution, the colonists were cohesive in that limited battle against the British. However, the notion that these 13 nation-states would then relinquish their independence to accept the creation of a powerful federal government was no guarantee. Certain visionaries diagnosed that structure created by the Articles of Confederation was doomed to fail. They suggested conventions, purportedly to amend the Articles, but ultimately to throw them out.

As Newsday noted: Ellis’ account of the run-up to the Constitutional Convention of 1787 and the subsequent state-by-state ratification process is so pacey it almost reads like a thriller. New Yorker Hamilton, fearful that anarchy was looming, developed a national vision first; Madison was just a bit behind. Jay, serving as foreign affairs secretary, was trying to fashion coherent foreign policy. But all agreed that if their efforts were to succeed, a reluctant Washington, who had retired to Mount Vernon, had to be on board. Washington’s revolutionary credentials were unassailable.

“In 1780, most Americans, having thrown off the fetters of a faraway central power, would have thought the kind of national government envisioned by Washington and Co. as peculiar in the extreme. Some historians have viewed the Constitution as a betrayal of the American Revolution by a cabal of elites who crushed an emerging democracy. Ellis, however, reminds us that democracy was viewed skeptically in the 18th century; he prefers to see the efforts the quartet as ‘a quite brilliant rescue’ of revolutionary principles.”

I totally agree that, for a topic that could be very dry, I found the book surprisingly engaging. Ellis explains how the Founders, even those opposing slavery such as Hamilton, essentially ducked the question for the cause of federalism, hoping the topic would be addressed down the road, which it was, decades later.

I should mention that I got the large-print version of The Quartet because that happened to be the edition near the checkout. I didn’t NEED it, but I’m not complaining about it either.

Antonin Scalia and the “dead Constitution”

“If the issue of the franchise for women came up today, we would not have to have a constitutional amendment.”

A good friend of mine asked me to try to find an interview with Antonin Scalia. The late Supreme Court justice talked about a “dead Constitution,” arguing that people ONLY have rights that are spelled out in the document or by the formal amendment process.

My friend recalls him saying that women, or blacks, had no inherent rights until they could convince sufficient White Men to give them rights thru the amendment process.

I discovered that he laid out his “originalist” views many times. In 2005, he delivered one of his two most essential speeches, Constitutional Interpretation the Old Fashioned Way:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment.

Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920.

In 2008, Scalia vigorously defended a ‘Dead’ Constitution. As his 2016 New York Times obit noted:

“By choosing the appeals court judge and former law professor, Reagan believed that his nominee would become a… man who would unite a coalition of like-minded justices… But from the beginning, Justice Scalia defied all expectations. He eagerly participated in questioning from the bench during oral arguments when new justices traditionally held back. He became an outspoken, witty and acerbic writer and speaker, who was deified or vilified by people on opposite sides of the political divide.”

This is the first Monday of October, the traditional opening of the Supreme Court’s term. Scalia has been replaced by ~~Obama nominee Merrick Garland~~ Trump appointee Neil M. Gorsuch.