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November 16, 2005

A simple proposal

On the New York Times op-ed page, Dan Savage champions amending the Constitution to add a right to privacy. This is a colossally good idea, in my book.


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Immigration, Conservatives, and Birthright Citizenship (Part 2)

The other tactic which these opponents employ is using out-of-context quotations from supporters of the Citizenship Clause in a way that (intentionally or not) distorts the meaning of those quotations. The best example is their use of the words of Senator Trumbull of Illinois. At one point in the debate, Senator Trumbull stated that "'subject to the jurisdiction of the United States' [means] not owing allegiance to anybody else," and shortly thereafter that a Native America who "owes allegiance, partial allegiance if you please, to some other government" is not "'subject to the jurisdiction" of the United States. Globe at 2893. Conservatives such as the ones described before take this as evidence that Trumbull's interpretation of the Clause matches theirs. They define "allegiance" in a modern way, as akin to loyalty or affiliation, as if Trumbull were speaking of the Pledge. Thus, someone like Hamdi, who spent almost none of his life in the country, and certainly can't be said to have any loyalty or affection for it, neither owes nor holds any allegiance to this country, cannot be said to be subject to its jurisdiction, and is not a citizen. Neither are children born in this country to non-citizen parents, who, it is said, bear no real love or allegiance to this country, but are merely "drive-by citizens."

There's just one problem with using Trumbull for this argument. Immediately after he mentions the issue of allegiance (in the same paragraph of the Globe), he links jurisdiction to the problems of control and power. Native Americans (who, after all, are the subject of this whole debate) are not subject to suit in American court; they are citizens of foreign powers with whom treaties must be made. "If we want to control the Navajoes [or other Native Americans] . . . how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense?" Globe at 2893. Jurisdiction (and allegiance), for Trumbull, are intimately linked with control, power, authority, sovereignty. Moments thereafter, Trumbull criticizes the notion that a Native American who "owes allegiance . . . to some other Government" can be subject to the jurisdiction of the United States. Yet does he argue (as Senator Cowan did) that this is because it would be absurd for someone with no loyalty or affection or respect for the United States to be considered under its jurisdiction, that one man cannot faithfully serve two masters? That would be no. Rather, he ridicules the idea of

bringing a bill into Congress to subject these wild Indians with whom we
have no treaty to the laws and regulations of civilized life . . . [of]
punishing them for instituting among themselves their own tribal
regulations[.] Does the Government of the United States pretend to
take jurisdiction of murders and robberies committed by one Indian
upon another? Are they subject to our jurisdiction in any just sense? . . .
It is only those individuals who come completely within our jurisdiction,
who are subject to our laws, that we think of making citizens.

Globe at 2893 (emphasis added).

Jurisdiction is not grounded on affective allegiance, on loyalty or respect. It is grounded in legitimate power and control, in just and rightful authority.

To see more concretely the problems with a different interpretation of Trumbull more clearly, take two hypothetical individuals. One is a foreign grad student legally in the United States in a long-term doctoral program. One is an American living for some years in Germany. If Trumbull intended "allegiance" to be primarily affective, his definition of "subject to the jurisdiction thereof" would be self-contradictory in both cases. The former would have affective allegiance to a foreign sovereign yet be subject to the laws and authority of the United States; the latter would have affective allegiance to the United States yet be subject to German laws and authority. The result, under this theory, would seem to be a muddle. Yet if one takes "allegiance" to be linked toward one's legal/moral/governmental obligations to sovereign authority, the contradictions disappear. The former student, while not an American citizen, is certainly subject to the jurisdiction of the United States; the latter individual is clearly not subject to American jurisdiction, whatever his citizenship.

The conservative interpretation of Trumbull's words is so muddled precisely because it is out of context: it uses one sentence and omits the next three, and completely omits the contemporary backdrop against which Trumbull was speaking. For example: one version of this argument uses Trumbull to argue that

the authors of the jurisdiction requirement believed that allegiance to a
foreign government could remain even while an alien was within the
territory of the United States. The remaining allegiance to a foreign
power, even if only “partial,” was cognizable in determining whether
someone was “subject to the jurisdiction” of the United States. If a
person retained even some allegiance to another government while
within the United States, the person was not subject to the “complete
jurisdiction” of the United States.

This is nonsense. The context, indeed the entire point, of the argument about jurisdiction, centered around the problem of Native American tribes and individuals. These Native Americans, crucially, were not within the United States or United States territory. They were within the territorial limits of the United States, to be sure, yet Native American land, from a legal standpoint, is no more in the United States, no more part of the United States, than any embassy in Washington. Thus, Native Americans would owe allegiance to their sovereign precisely because they were within the territory, and under the authority, of that sovereign, rather than that of the United States. It is not, as these conservatives would have it, a question of living in the territory of one nation while retaining loyalty to another. It is a question of living in the territory of a nation and being subject to its laws and authority. Anyone who is born in American territory and is fully subject to American laws, government, and authority is subject to American jurisdiction and is thus an American citizen. Lyman Trumbull wouldn't have it any other way.


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Immigration, Conservatives and Birthright Citizenship (Part 1)

Many conservatives take a quite different view of the Clause from that given below. In their view, the drafters of the Fourteenth Amendment intended a relatively narrow meaning, to include only those individuals who owed a full "allegiance" to the United States rather than to a foreign power. In their view, this would exclude children of illegal immigrants and people who are born in the United States but do not live there for any appreciable time (people like Yasir Esam Hamdi, for example).

Such conservatives reach this conclusion in two ways: first, they take language and arguments from those senators who ultimately opposed the Amendment (in some cases, take that language out of context), and take isolated sentences from supporters of the Amendment and put them together in a way that is contrary to the actual intent of those supporters. This post will consider the first problem, the next post will consider the second.

For example: Senator Cowan of Pennsylvania, in the course of ultimately attacking the Clause for granting citizenship to individuals (namely "Gypsies" and children of Chinese immigrants) whom he finds undesirable, compares the rights of such people to those of mere foreign travelers in the United States. Congressional Globe, at 2890. Given the context of Senator Cowan's remarks, it seems clear that he is criticizing the Clause for giving more rights to the former than the latter. His criticism is precisely grounded on his belief that, for example the "Gypsies" of Pennsylvania "owe [Pennsylvania] no allegiance; who pretend to owe none; who recognize no authority in their government." Id. at 2891. He argues that if "the mere fact of being born in the country confers that right [of citizenship and its concomitant privileges with regard to state law], then they will have it; and I think it will be mischievous." Id.

In other words, Senator Cowan thought that the Clause is too broad because its meaning encompasses even those who don't properly give allegiance, etc to the country of which they are citizens. This is used by conservatives to argue that "the authors of the jurisdiction requirement were concerned about 'drive-by citizenship'" and intended to exclude it from the Clause. This seems questionable, to say the least. Leave aside the fact as well that Senator Cowan ultimately opposed the Amendment, not least because of his objections to the Citizenship Clause. Globe at 3042. To call him one of its "authors" is an interesting interpretation of the facts.

Similarly, another conservative argues that Senator Doolittle of Wisconsin "queried Howard’s language . . . [because] he wanted it clear that Indians were excluded because they owed allegiance to their tribes." Senator Doolittle, under this reading, wanted to make sure that the Clause didn't create birthright citizenship. But Doolittle himself 1) argued that the Clause as written included Native Americans, 2) "presumed" that Senator Howard wanted to exclude Native Americans from citizenship, and most crucially 3) felt that to accomplish this, it would be necessary to "insert[], after the word 'thereof,' the words 'excluding Indians not taxed." Globe at 2890. That is, Doolittle read the Citizenship Clause to confer birthright citizenship on Native Americans (i.e., a broader reading of the Clause's meaning than that of Senator Howard), and to prevent this from happening, proposed additional language which was ultimately rejected. To argue that this supports a narrower reading than that given by Senator Howard is thus flatly contrary to history. Leave aside, again, Doolittle's ultimate opposition to the Amendment. Globe at 3042.


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50 Book Challenge #26

On Food and Cooking - Harold McGee

On Food and Cooking has to be one of the most fascinating (and useful) books I've read all year. The various chapters deal with different ingredients (dairy, fish, etc.) and discuss in exhaustive detail such questions as why fish smells fishy and why it spoils faster than other meats, why mayonaise works and what causes it to separate, and what distinguishes various varieties of basil. McGee is at his most useful when he describes the general characteristics of various ingredients and basic recipes--after reading him, I find it much easier to tell if a particular recipe is likely to be finicky or forgiving--and at his most interesting when telling the histories of various foodstuffs. After reading several of his medieval recipes, I felt inspired to try adding more spices like cinnamon and allspice to savory dishes. While I suspect only hard-core food nerds would want to read the thing cover to cover, it's also a really invaluable reference guide (though I wish the index were a bit better).


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The Original Meaning of Birthright Citizenship

My esteemed host has recently been engaged in an interesting discussion over at the Yale Federalist Society blog on the subject of the meaning of the Citizenship Clause of the 14th Amendment: specifically, whether the original meaning of that clause would have included the children, born on American soil, of illegal immigrants. Will's position, as I understand it, is that the phrase "subject to the jurisdiction thereof" was only intended to carve out individuals who were not wholly subject to the sovereignty of the United States, particularly Native Americans, and he points to some passages from the ratification debates in Congress.

Having looked through the Congressional Globe records further, it seems fairly clear that Will's position is the right one. At the very beginning of the Senate ratification debate, Senator Howard (the Senate manager of the amendment) said that a citizen is "a person who was born within the limits of the United States and subject to their laws." Globe 2765. While Native American tribes and foreign diplomats would not be fully subject to American laws for obvious reasons, I don't see any way that children of illegal immigrants would have similar immunity.

Later, Senator Howard says (at 2895) that

"'jurisdiction,' as here employed, ought to be construed so as to imply
a full and complete jurisdiction on the part of the United States,
coextensive in all respects with the constituional power of the United
States . . . that is to say, the same jurisdiction in extent and quality as
applies to every citizen of the United States now. Certainly, gentlemen
cannot contend that an Indian, belonging to a tribe, although born within
the limits of a State is subject to this full and complete jurisdiction. . . .
The government of the United States have always regarded and treated
the Indian tribes within our limits as foreign Powers. . . . The Indian who
is still connected by his tribal relation with the government of his tribe is
subject for crimes committed against the laws or usages of the tribe to
the tribe itself, and not to any foreign or other tribunal . . . the jurisdiction
of the [tribal] nation intervenes and ousts what would otherwise be
perhaps a right of jurisdiction of the United States.

Thus, "subject to the jurisdiction thereof" is effectively interpreted to mean "subject to the sovereignty thereof": where the full sovereign power of the United States extends to an individual, they are within American jurisdiction. Where that is not the case, as with a Native American or a foreign diplomat (or possibly the children of travelers born on American soil), then there is no 14th Amendment jurisdiction, and thus no citizenship. As Will suggests, absent legislation to carve out a special legal category for, say, the children of illegal immigrants, there doesn't seem to be any reason that said children would not be subject to the full sovereign authority of the United States, and thus citizens by virtue of the Fourteen Amendment.

A key point here is that no senator at any point during these debates takes a narrower view of the reach of the Citizenship Clause. Several senators (mostly Democrats or conservative Republicans) argue that the Clause is in fact broader, extending to Native Americans unless specifically modified, but at no point, as far as I can tell, does anyone argue that Senator Howard and his allies are interpreting their proposed language too broadly. The argument that this Clause should be read more narrowly to exclude birthright citizenship for, inter alia children of illegal immigrants who (it is said) do not owe the proper loyalty and allegiance to the United States thus seems contrary to the original meaning of the Clause.


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Globetrotting

I have temporarily survived my previous library troubles, but already have a new book-buying quest. Is it possible to buy actual volumes of the Congressional Globe for any reasonable price? I don't demand that they be particularly old or shiny, just that the pages be photoduplicated reprints or the equivalent.

The text of the thing is available online for free but in the course of flipping through it during class (writing this post) I realized how nice it would be to be able to mark up a copy of the 39th Congress on my own. I guess we're talking 6000 pages here, which would be an easy ten volumes or so.


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