Category Archives: rights

On Birthright Citizenship

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William Galston, in his Wall Street Journal op-ed insists that President Donald Trump’s (R) Executive Order regarding birthright citizenship—which says that children born to illegal aliens or birth-tourism mothers are not ipso facto entitled to American citizenship—is unconstitutional. Galston correctly hangs his argument on the 14th Amendment’s first clause phrase subject to the jurisdiction thereof (of the United States). He’s also correct in that some case law could serve as impediments to enforcing Trump’s EO and that some Supreme Court precedential rulings that touch on birthright citizenship also could so serve.

Here’s the importance of that phrase, albeit it’s an importance that Galston and others objecting to the EO completely miss. Illegal aliens have held themselves outside our legal jurisdiction from the very beginning—their illegal entry into our nation in violation of the laws, the jurisdiction, of our nation—and they continue to hold themselves outside our jurisdiction by their continued status as illegal aliens.

A similar case applies to those birth-tourism mothers. They have no intention whatsoever of remaining—legally—and so submitting themselves to our nation’s jurisdiction. They have every intention of remaining citizens, subject to the jurisdiction, of their home nation.

Because these two groups refuse our nation’s jurisdiction, birthright citizenship can never, legitimately, apply to their children for all the accident (deliberate or not) of the geography of their birth.

Here is an instance where the over-sanctification of precedent could be corrected in the specific instance: overturn the wrongly decided case law and correct those past Supreme Court precedents. Recognize via Court ruling the plain, obvious, and rational meaning of the 14th Amendment’s phrase. That’s a requirement the Supreme Court has emplaced a number of times.

Whose Misunderstanding?

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A letter writer in Wednesday’s Wall Street Journal Letters section wondered whether DNI nominee Tulsi Gabbard understand[s] the difference between domestic investigative warrants and surveillance warrants abroad. He went on to opine [emphasis added]

For US citizens within the country, warrants support ongoing investigations, whereas warrants abroad monitor for possible terrorist activity and are justifiable on less than probable cause. Domestically, the goal is to prosecute criminals after they have committed crimes. Abroad, the goal is to stop terrorists before they can act. That is reason enough to permit warrants for American citizens abroad.

It is not Gabbard who misunderstands, it is this letter writer.

Americans do not give up our American rights and protections against American government transgressions just because we are overseas. Americans do not give up those rights and protections under any circumstances.

Pardons and Culpability

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Then-still President Joe Biden (D), if only barely at the time, issued pardons to the rest of his immediate family, to the J6 Congressmen and staffers (more on this in a separate post), overwrought bureaucrats like Anthony Fauci, and to wokesters like General Mark Milley (Army, Ret) just in case they might have committed criminal offenses and be haled into criminal court to answer charges. Among the resulting hues and cries is the angst that this puts those folks beyond retribution. While the last minute and preemptive nature of the pardons has the potential of setting an ugly precedent, they are not at all beyond retribution.

All of those pardoned folks, every single one of them, is still legally open to Federal subpoena to testify before Congress concerning the things they did, are accused of doing, and are reputed to have done. Their pardoned status, which does inure them against Federal criminal charges, actually greatly weakens their ability to resist requirements to testify with the truth, the whole truth, and nothing but the truth on the witness stand. The only criminal consequences they could suffer would stem from that post-pardon testimony, should they choose to lie at that time.

Beyond the inability to resist providing testimony, Presidential pardons extend only to Federal crimes and Federal charges of Federal crimes. They do not provide any protection from State or local criminal charges (which would be their only shield against Federal subpoenas to testify). Especially, Presidential pardons provide no protection against civil suits over those very same behaviors, accused behaviors, and reputed behaviors.

All that’s lacking for any of this to happen is the public’s and Congressmen’s will to bring the suits.

Citizenship and Birth

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President Donald Trump (R) has issued his Executive Order (see below a few posts to see a related one) that seeks to apply an alternative interpretation to the 14th Amendment’s Citizenship Clause that eliminates birthright citizenship. His EO can be read here, and the currently implementing law he references in his EO can be read here. His argument centers on the subject to the jurisdiction thereof phrase in the clause.

This is the first clause of the 14th Amendment:

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.

The order strongly implies, IAW “plain language” that folks are citizens of the nation first and citizens of the State in which they reside second. Further, that citizen of the State aspect follows them from State to State as they declare (and take some steps to demonstrate) their residency in the subsequent State(s). That, in turn, strongly suggests that a person’s State citizenship exists only as derivative of their national citizenship.

The law may give this EO some legs, even though the “subject to jurisdiction” part has been tried before.

A Singularly Bad Idea

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Texas Senator Ted Cruz (R) has introduced a resolution that would propose a Constitutional Amendment that would apply term limits to Congressmen. Congressman Ralph Norman (R, SC) has introduced a companion resolution in the House.

The amendment would limit US senators to two six-year terms and US House members to three two-year terms. The two-page resolution states that after the amendment is passed by Congress and ratified by the states, the amendment would go into effect “within seven years after the date of its submission by the Congress.”
The resolution proposes that after a member of the US House has served three terms, they aren’t eligible to be reelected to the House. After a US senator has served two terms, they are no longer eligible to be elected or appointed to the US Senate.

This is a bad idea. It’s not suboptimal, it’s bad. There is no legitimate reason for our government to dictate to its sovereign—us citizens—who we will choose to represent us in our government, not even via Constitutional Amendment. Beyond that, there is no legitimate reason for a current generation of citizens to limit who future generations might choose to represent them in future governments, not even via Constitutional Amendment.

The concern about longevity, built-up seniority, and the perks and power of incumbency is very legitimate and amply justified by the abuses of so many current and immediately past Congressmen.

However, our Articles of Confederation, which got many things wrong—it was, after all, a first draft of a self-governing, non-monarchist, form of government—did get the matter of term limits and the power of incumbency and seniority absolutely correct. Here’s what Article V of those Articles had to say on this matter:

[N]o person shall be capable of being a delegate for more than three years in any term of six years[]

Congress under the Articles was unicameral, and a Congressional session and a delegate’s term of office were for one year only. Thus, a delegate could serve in Congress for no more than three years of a six-year period.

That is easily adaptable to our current bicameral Congress with its Congressional sessions lasting two years (so a Senator’s term spans three sessions). One adaptation would be to limit a Representative to three terms of any six and a Senator to two terms of any four, with a Senator wishing to stand for the House being limited just one term in the House until six Congressional sessions had transpired, and a Representative wishing to stand for the Senate being ineligible to do so also until those six Congressional sessions had transpired. I’d also bar the Congressmen of either house from serving in any other Federal government capacity or work for any lobbyist, whether for pay or pro bono, except that such alternative work bars the six sessions from counting until he’s left those positions.

That Amendment, based on the Articles’ limits, would satisfy the problem of incumbency and seniority without presuming to dictate our choices of whom to select to represent us.