Friday, October 9, 2015

Whose Constitution Is It, Anyway?

Here's an experiment: pull up a search window on your device. Once it has loaded, start typing the following:

W h o ' s  l

On both Bing's search engine and Google's, as soon as I type in the letter "l," suggestions narrow to two tops ones. One suggestion is the popular series, "Whose Line is It, Anyway?" The other suggestion is the movie, based on the play, "Whose Life is It, Anyway?" Just one letter makes all the difference in the choices. Choose "Line" and you find a popular improvisational comedy series hosted by Drew Carey. Choose "Life" and you get a maudlin drama about a sculptor rendered quadraplegic who prefers death over paralysis, and who, through conversation with them, wins over the staff of the hospital to the idea of his being allowed the "right" to die.

Whose Life? Whose Line?

Both set the stage to draw us into an escape from present reality.

My question is a bit different, and I hope that I do not draw you into an escape from present reality. Instead, I hope to awaken you to present reality and invite you to change it.

An ongoing conversation about "anchor babies" and "birthright citizenship" has been revived in substantial part because Donald Trump has raised the issues as part of his bid for the Republican nomination for the presidency. In a weekend rally, for example, Trump hit hard on "anchor babies" and "birthright citizenship" as part of his larger objections to the problems America faces with illegal immigration.Trump's stance has gotten several airings on national news outlets. One of the harder hitting exchanges Trump experienced happened on The O'Reilly Factor:

That Trump would take on the question of "anchor babies" and "birthright citizenship" surprises no one that read his 2011 book. In it, he wrote:
Some four million anchor babies are now officially U.S. citizens. This has to stop. The only other major country in the world that issues citizenship based on where one’s mother delivers her child is Canada. The rest of the world bases citizenship on who the kid’s parents are, which is of course the only sane standard.
As an aside, Trump's claim that Canada is the only other nation that recognizes citizenship based on being born within its borders is wrong. Australian law makes any child born in Australia, regardless of the legal status of his or her parents, a citizen. That citizenship settles on the child on their 10th birthday. In addition, historically, every person born within the borders of the United Kingdom was considered a subject of the Crown. That approach has been changed by Parliament since England restructured its relations with the Commonwealth nations (including Canada and Australia). Today, children born in the United Kingdom are automatically citizens of the UK if one of their parents is a citizen, or if one of their parents is lawfully settled in England. Other nations have now, or have had, birthright citizenship in various forms. Those nations include Thailand, which has changed its laws on the subject numerous times since the early 1900s, Brazil, and Argentina.

Trump did set of a firestorm, though, with that early summer observation about the criminal element among illegal immigrants. His observation that illegal immigrants included murderers and rapists was bound to offend many, never mind the obvious truth of his observation. That truth is lived out every day in States like Texas that border Mexico. In a 2014 Breitbart article, then State Senator Dan Patrick is quoted at length from a radio interview:
Hours before Texas Gov. Rick Perry announced he would send National Guard troops to the border, Texas state Senator Dan Patrick said there are at least 100,000 illegal immigrant gang members in the state.
On Monday’s The Laura Ingraham Show, Patrick, who is also the Republican candidate for lieutenant governor, said from 2008 to 2012, 143,000 illegal immigrant criminals were arrested and jailed in Texas.
He said these were “hardened criminals, gang members, and other criminals that we identified as being in Texas illegally.” “We charged them with 447,000 crimes, a half-million crimes in four years, just in Texas, including over 5,000 rapes and 2,000 murders,” Patrick said. “We estimate we have 100,000 gang members here illegally.”
ONE HUNDRED THOUSAND GANG MEMBERS illegally in the United States, inflicting a HALF MILLION CRIMES in Texas IN JUST FOUR YEARS. The crime wave included MORE THAN FIVE THOUSAND RAPES and TWO THOUSAND MURDERS. One wonders why Trump's remarks did not result in his being carried by supporting Texans alone to the White House to dethrone the President that cares not for his country's people.

The news readers and the lap dance media chopped Trump's full remarks, omitting his recognition that many illegal aliens present in our country are not violent criminal offenders of the sort to which he had just referred. The chopping and omission might have been unintentional, but it seemed designed to inflame passions. In his full remarks, he referred to those other illegal aliens as "good people." Of course, as such things go, some commentators wondered how those who violated US borders and migration laws, and consequently moving into a black market or underground economy, could be considered "good people" at all.

Now, at the time of Trump's original remark, no one would have predicted the horrific death of Kathryn Steinle at the hands of a vagrant illegal alien, who found a missing service handgun belonging to an Obama administration employee and shot her to death as she strolled arm and arm with her daddy on San Francisco's Embarcadero. In the aftermath of the murder, Trump's remarks were revealed as seemingly prescient. Trump's foreknowledge that such a thing would happen electrified Americans tired of politicians and commentators who bandy words about on such topics as illegal immigration, but who, ultimately, take no effective steps to address the situation.

While location, they say, is everything in the real estate business, in politics, timing is location. Trump's observations, so close in proximity to Steinle's murder propelled Trump upward and upward in polling and in notice. In fact, as some of the supporters of Trump's nomination competitors were heard to whine, Trump was taking all the oxygen in the room. Even Jeb Bush, whose war chest for the campaign made him the obvious candidate to beat, has been left to wonder just what bus it was that hit him.

In months following, Trump has put some specifics underneath his original remarks. During a Sunday morning appearance on "Meet the Press," Trump proposed specific steps to address America's problems with illegal immigration. Among the steps he proposed, Trump stated his intention to eliminate "birthright citizenship." Of course birthright citizenship brings us to the discussion of "anchor babies."

Then, just yesterday, Congressman Lamar Smith (R-TX), in an editorial titled, "Why We Should Have a Debate on Birthright Citizenship," put forward his view that "anchor baby" status is a fiction of bad constitutional construction. Lamar expressed those views on the Heritage Foundation's Daily Signal. and arguing that Congress has the power to interpret the Birthright Citizenship Clause of the Fourteenth Amendment. He wrote:
Birthright citizenship is based on an erroneous reading of the Fourteenth Amendment to the Constitution, which states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens[.]” 
Last April, the House Judiciary Subcommittee on Immigration held a hearing to determine who should be a citizen under the Fourteenth Amendment. 
Witnesses testified to the fact that historically, Congress never intended to treat all persons born on American soil as citizens. Native Americans and children of foreign diplomats are examples of children born in the United States but who are not subject to its jurisdiction under the Fourteenth Amendment. 
Congress is explicitly given the power to interpret the Citizenship Clause by legislation in section 5 of the Fourteenth Amendment. It states that “[t]he Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
My intention is not to break Smith's concept up into the broken bits that it actually is, I mention it solely because I share his view that the debate is one we should have. More precisely, the debate is one we should have before folks like Smith and Congressional allies push through potentially unconstitutional legislation stripping citizenship from Americans based on a purported constitutional "power to interpret" the Birthright Citizenship Clause that Smith and others claim Congress has been granted under Section V of the Fourteenth Amendment.

In a future post, I take apart the notion of eliminating "birthright citizenship."

Today, however, I am asking you to consider a larger question, one that, once answered by you, should influence your participation in the future pursuit of changes to America's laws on immigration, and on "birthright citizenship." I want you to consider that you have responsibilities and powers in these matters that  -- before you simply allow "solutions" to be thrust on you and the Nation -- you should understand and fulfill.

So Trump has ideas for possible solutions?

He isn't alone. Commentators do too. Mark Levin, the conservative radio host and author, has attacked "birthright citizenship" as a legal concept and has said that Congress could address the problem through legislation. Of course, members of Congress have proposed solutions too. In proof of that point, I ran a search on (the Legislative Branch's website) to see current pending proposals. That search produced over 100 pending legislative proposals.

In a Republic such as ours, our elected representatives should represent our views. So WE are entitled to have our own views, and we have the right and the duty to weigh in on such debates to put our views forward. Of course we have that right and duty. Our right is derived from the nature of our federal Republic.

Look at that Constitution of yours. What are its opening words?

Does it say:

No, it doesn't. Does it say:

No, it doesn't. Does it say:

No, it doesn't. Does it say:

What it does say, is WE THE PEOPLE.

Now some might think that phrase is a mere superfluity, or a nicety. I think not. It reflects perhaps   never more memorably rephrased than by Abraham Lincoln, in his brief, but beautiful, and stunningly consequential Gettysburg Address:
It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.
There is a tendency to assume that we should defer to the judgment of "experts" on questions about the scope and meaning of our Constitution and our laws. That tendency appeals to the part of us that assumes that government is an implacable force, impervious to citizen impulses for change. It also, unfortunately, appeals to the part of us that cannot be bothered to be engaged in the civic life of the Nation.

We should know better.

Our history as a People teems with stunning examples of how the People of this Nation seized the horns of dilemmas and steered the Nation in new, and often better, directions.

Before the War for Independence, American colonial resistance to the the Stamp Act led to its repeal by the English Parliament. Upon the determination to separate from England and declare independence, citizen soldiers joined in the struggle to cement our Nation's separate and equal status among the Nations of the world.

While abolitionists were broadly perceived as political gadflies, their efforts pricked the conscience of a nation and kept alive the Free States' drive to limit the expansion of slavery in the antebellum South. The underground railroad, of course, was, to each life rescued, indelible proof of the value of citizen action.

The struggle for women's suffrage amply illuminates the significance of citizen activism. The 1964 classic, Mary Poppins, gives us a lighthearted peek at that issue:

Of course, suffragist and tee totaller, Carrie Nation, offers us the reminder that citizen activism can take the Nation farther in a policy direction -- in her case, she was also a Temperance activist -- than we ultimately conclude is wise or warranted.

The civil rights movement of the 1940s-1960s is the most obvious illumination of the power of citizen activism on the national level. Boycotts, marches, sit-ins, these and other appeals to the conscience of a Nation forced us to join in a conversation with the descendants of slaves, and to work to make a reality in their lives, and all ours, that equality of all men stated in the Declaration of Independence.

So, coming back to the question of "Birth Right Citizenship," and particularly the issue of "Anchor Babies," each of us has both the right and the duty as citizens, not simply to watch the ongoing debate, but to join that debate, to insist on a share in the conversation. If you agree with Trump, if you disagree with him, as I do on this issue, you should and can join the conversation. If you agree with Mark Levin, or with Congressman Smith, or disagree with them, as I do, your views and voice should be heard before our Constitution is changed, whether by amendment or by disregard.

If you oppose so-called "pathways to citizenship" or if you support them, join in the debate. whatever your opinion, join in the debate. It is only our Constitution if we keep hold of it, and remind those who would ignore the People that the document is ours, not the Courts, not the judges, not the lawyers, not the Presidents, but ours.