In Defense of Common Law

That’s called the politics of ethnicity, I believe, and it’s repellent. What’s good for one man is good for another. Anglo-Saxon jurisprudence is founded on the principle of equality of fundamental rights attaching not to a group or a class but to the individual. You cannot have justice if rank and privilege are accorded by class.”–Mark Helprin, Freddy and Frederika

In the wake of the populist anti-immigration push there has been an attack on both the 14th Amendment and even the idea of English Common Law. This I find particularly interesting as this argument is being made by people claiming we need to uphold the intentions of the Founders, while at the same time English Common Law are referenced several times in he Constitutional Convention and in The Federalist Papers and the actual intentions of writers of the 14th Amendment are being ignored.  As usual this seems to be derived from the populist idiocy that mistakes their short term biases for he long term intent of the Founding Fathers.

So let’s first deal with the 14th Amendment.
The populists are stating the right of birthright citizenship in the14th Amendment was only applied to slaves. That despite the rather specific language meant to cover everyone but people living on Indian land, that it only covers who the populists want it to. The idiots the claim that if you read the debate of the Amendment it clearly ONLY applies to slaves. Well here is the debate, and either populists are looking at a very different debate or they’re  lying  about what it tumblr_ntd10kLHZs1s4tkgno1_540 says or just doesn’t even know how to read:

“What do we [the committee reporting the clause] mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.” […]: “Can you sue a Navajoe Indian in court?…We make treaties with them, and therefore they are not subject to our jurisdiction….If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense?….Would he [Sen. Doolittle] think 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 and other crimes committed by one Indian upon another?…It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.”

That sounds pretty clear that the only not covered are those who are not in the jurisdiction are those who are literally not under the jurisdiction of the state they are in.  So while a Native American on a reservation is still not subject to the laws of the state that reservation is in, an illegal alien in a state who commits a crime is within the jurisdiction of that state.  By the standard put forth in that debate about the Amendment, then illegal immigrants count.  The point of the clause was very specifically to exclude Native Americans and no one else…it was not meant to exclude immigrants, especially when you consider the very idea of illegal immigration didn’t even come about until the 1880’s.  So anyone who says that the Amendment was meant only for slaves it wrong, it was meant for everyone and then had an exclusion for Native Americans added.

So enough of that argument…see what happens when you actually read things (not popular among populists) you can actually learn things.

So let’s deal with what the Supreme Court would do if we tried to just pass a law to test the 14th Amendment as the dimwitted populists are suggesting.  Ignoring the fact that we should have learned that taking things to the court is always a bit of crap shoot where the dice are rigged…I went back and looked something up I remembered from a few years ago.

There are basically two types of theories on citizenship: Jus soli citizenship and Jus sanguinis citizenship. Jus soli (Law of the Soil) is birthright citizenship, that your citizenship comes form where you are born. Jus sanguinis (Law of the Blood) is that your citizenship comes from your parents. Those who hold that the 14th Amendment grants birthright citizenship are for Jus soli…and Trump, Hannity, Levin, Coulter and a bunch of other idiots completely ignorant of law are arguing in favor of Jus sanguinis.

So my memory went back to back to a 2009 case, Nguyen v. INS, which dealt with a man who was born out of wedlock, out of the US, and whose father was an American citizen over whether the man in question was a US citizen. Now the court ruled that the petitioner was not a US citizen (apparently if one parent is a US citizen but they’re married you’re a citizen, if your mother is unmarried but a US citizen you’re a US citizen, but if you’re the bastard of a male US citizen, tough shit). The short version is that case ruled in favor of Jus Soli. Specifically Scalia, Thomas, and Kennedy voted in the majority in favor of Jus Soli…and the oral arguments included this little gem:

Justice Scalia: … I mean, isn’t it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England?
They did not want that.
They wanted natural born Americans.
[Ms.]. Davis: Yes, by the same token…
Justice Scalia: That is jus soli, isn’t it?
[Ms.] Davis: By the same token, one could say that the provision would apply now to ensure that Congress can’t apply suspect classifications to keep certain individuals from aspiring to those offices.
Justice Scalia: Well, maybe.
I’m just referring to the meaning of natural born within the Constitution.
I don’t think you’re disagreeing.
It requires jus soli, doesn’t it?

If Scalia believes the Founders believed in Jus Soli, I don’t think he’ll take an opposite opinion of how to interpret the 14th.
Also the argument the Trump crowd uses is that the 14th Amendment’s first sentence: “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.”  That the “and subject to the jurisdiction thereof,“ argues in favor of a jus sanguinis stance…however, since Justice Thomas is a big one for actual historical context of that clause was about Indians living on sovereign nations within US borders, so it’s inclusion had nothing do with the context of this argument (also if you read the transcript the argument only deals with whether the individual in question is only loyal to the US, the question of parentage does not come up at all).

So in all likelihood if this went to the Supreme Court, Scalia because he’s extremely consistent would vote in favor of Jus Soli, and Thomas would vote in favor because of historical context…and the 4 liberal justices would likely vote in favor of the 14th Amendment just because I don’t see liberals ever being against illegal immigrants. And Kennedy, while always a wild card, will likely keep with tradition as well and vote again for Jus Soli.
So to all the idiots who think you can take it to the court to settle this, ummm, right now it’s looking like 7-2 against (did you plan on changing three seats in your favor anytime soon?) (And that’s assuming Alito takes a leave of his senses…I figure Roberts would vote for Jus sanguinis only because he does dumb things).


your average populist

So now that it’s unlikely that you would ever win in the Supreme Court, can we go back to the only practical way to change birthright citizenship for the children of illegal immigrants: PASS AN AMENDMENT.

Of course this is ignoring the issue that suddenly populists want to have courts decide issues…you would  think that since there’s so much complaining about courts legislating that the correct action would be even if there is question about how to enforce the amendment to pass a new amendment and clarify this not leave it up to the courts.  But that would be how a conservative thinks…certainly logical like that is never to be found in populism.

But strangest, and most dangerous of all, to make their case the populists have felt the need to attack the idea of English Common Law, which among other things is where we get the idea that where you are born is where your citizenship comes from.  The argument goes we fought an argument to get away from English law so why should we follow it now…which is really strange because the fact that action the revolution was trying to restore the rights of Common Law that were being denied by King George III. The Constitutional Convention and  The Federalist Papers make reference to Common Law, so it’s pretty clear that the founders clearly thought that common law was a good thing. But that doesn’t matter to populists.  Right now it is a hindrance to their hatred of immigrants, so Common Law has to go…of course with that will also go property rights, trial by jury, or that laws are permanent things not open to momentary whim and reinterpretation.  But let’s follow the populist argument that Congress can redefine what jurisdiction means in the Constitution and ignore what it meant to the people who passed it…I’m sure once we’ve done that Congress won’t redefine “militia” to mean only those things organized by government, or redefine press to only those who have permission from the government, hell why don’t we redefine expost facto so it means something other than making something a crime after he act is committed–I can’t possibly see a problem with letting Congress just define what words mean in the Constitution no matter what they meant when the Constitution or given Amendments were passed. Get rid of Common Law and welcome tyranny.  But that really doesn’t matter to populists…they really hate immigrants after all because populism is all about what benefits me not what is right not what is good for society just the short-term immediate gratification it is hedonism as a form of government.


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  1. A Conservative Platform (the kind we won’t get) – Elementary Politics

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