Wednesday, August 26, 2015

Understanding Xenophobia Dirty Harry Style

by Michael Dorf

In the aftermath of NFIB v. Sebelius various commentators (including me) noted that during the period before the case was decided, liberals tended to dismiss as preposterous the arguments that conservatives made for the proposition that the federal government cannot use its Commerce Power to regulate the multi-billion-dollar health insurance industry via a purchase mandate. We liberals didn't take those arguments seriously because we didn't share the conservatives' underlying values and, not sharing them, we under-estimated how much the arguments would appeal to judges and Justices who do share those values.

In my latest Verdict column, I warn that something like that is at least within the realm of thinkability with respect to birthright citizenship. The leading precedent, U.S. v. Wong Kim Ark, makes it very difficult to argue that children born in the U.S. to undocumented immigrants aren't citizens but the question is technically still open under SCOTUS precedents. In a Facebook post last week (not public, as is the nature of FB), Harvard Law Professor Mark Tushnet raised the possibility that we liberals could be making the same mistake of thinking that our reading of the precedents is obvious because we do not share the anti-immigrant sentiment of the Trump-led anti-immigration right. My column adds in the possibility that an anti-immigration Republican president could appoint a few sympathetic Justices.

To be sure, even doing my best to account for my own policy disagreement with the anti-immigration position, I think that the argument for denying birthright citizenship to the children of undocumented immigrants is weak, but then, it's always hard to be sure that one is accounting for one's own biases. In any event, even if we assume that children born in the U.S. to undocumented immigrants are entitled to birthright citizenship absent a constitutional amendment, it is worth responding to the substantive policy argument made by immigration foes. And in order to respond effectively to the argument, it is useful to have a sense of what's driving it.

The anti-immigration crowd's chief stated argument against birthright citizenship is that it leads to what they call "anchor babies"--a term that is widely regarded as offensive. The claim is that undocumented immigrants come to the U.S. to give birth, so that their children will be U.S. citizens and thus "anchor" their claims to stay. As explained in a Washington Post article last week, the claim is surely wrong: Having a U.S. citizen child does not confer any right to stay in the country--although the enjoined Obama Adminsitration program would have created the possibility of temporary deferred action (but not legal status) for undocumented immigrant parents of U.S. citizens (as discussed on DoL by Professor Kalhan here).

In my view, however, the fear of "anchor babies" as incentive is a post-hoc effort to come up with a seemingly rational policy concern. The underlying sentiment is more visceral--and Trump's outrageous claims about Mexico "sending" rapists and murderers taps into its core. It may be helpful to understand the real concern by reference to a Clint Eastwood movie.

Directing and starring in the gripping but disturbing 2008 film Gran Torino, Eastwood plays Walt Kowalski, a bitter widower who remains in his Detroit neighborhood long after the other white people--including his grown sons and their families--have left. Walt is a type that only Eastwood could play: a late-70s (at the time) racist action hero with a heart of gold. He uses multiple racial slurs to describe his Hmong immigrant neighbors. (Partial spoiler alert!) The action centers around Walt's relationship with teenager Thao (played by Bee Vang). Under pressure, Thao reluctantly joins a local gang and must steal Walt's Gran Torino as his initiation. He botches the job and then ends up working for Walt as penance. They eventually become close and Walt--as a kind of aging Dirty Harry--takes on the now-estranged gang to defend Thao and his family.

The story is partly redemptive. We come to see Walt's racist language as superficial. His only friend is a barber of Irish descent, with whom Walt trades ethnic insults, so we are led to think that racism is simply a mask that Walt wears to hide his unexpressable feelings. Likewise, Walt's prejudice against the Hmong--whom he sometimes conflates with the North Koreans and Chinese he fought fifty years earlier--is only superficial. Walt's real disaffection is with the young. He comes to respect his adult Hmong neighbors, but with the exception of Thao and his sister Sue (played by Ahney Her), Walt despises the younger generation. The story's villains are second generation Hmong-Americans--the "anchor babies" their parents would have had if they had been undocumented.

But Walt has no greater respect for white American youth. Early in the film he rescues Sue and a white teenager from a confrontation with three African American teenagers but then condemns the white teenager as a fool or worse. Walt also has contempt for his own grandchildren, whom he regards as lazy and disrespectful. Walt's basic attitude--which he literally states several times in the film--is the bitter old man anthem "get off my property."

To me, that is the underlying meaning of the attempt to eliminate birthright citizenship. Yes, it focuses on immigrants--the angry Americans want to keep them off our collective property--but at bottom this is the cri de coeur of the aging white demographic, upset at least as much by their own grandchildren, with their hip-hop music and their support for same-sex marriage, as they are with the children of undocumented immigrants.

Eastwood's own political views are certainly conservative but complex. During his bizarre performance at the 2012 RNC, Eastwood's chief criticisms of Obama/empty chair were that he didn't do enough to bring down unemployment and that he was naive in thinking the war in Afghanistan was winnable given the Soviet experience. These are not the complaints of a conventional right-winger. Moreover, like all great art, Gran Torino cannot be reduced to a linear message or moral. Nonetheless, Gran Torino does seem to be a morality play, even if an unconventional one. The film plainly treats Walt Kowalski as a complicated but ultimately sympathetic hero. Walt believes in real virtues, like loyalty, personal responsibility, respect, courage, and, most of all, retributive justice. We can acknowledge that these are virtues without endorsing Walt's world view, his dangerous nostalgia, his willingness to write off an entire generation, or his blatant racism. We can understand his motivation as not entirely bad without remotely agreeing with his stated views.

So too with the people who would like to eliminate birthright citizenship for U.S.-born children of undocumented immigrants: Their rage may well be misdirected anger that begins in something not entirely ignoble; but they should be opposed nonetheless.


David Ricardo said...

I don’t understand.

The judicial system has just completed a process in which Conservatives have screamed with the fury of a thousand suns that laws must be interpreted as they are written, that Justices cannot change the plain text of a statute, that if the ACA says that subsidies are limited to exchanges created by the states then they are limited to exchanges solely created by the states, regardless of common sense or congressional intent.

And now we have the same Conservatives saying that the 14th Amendment does not mean what it says when it states that anyone, without exception, anyone born in the United States is a citizen? This interpretation does not require a Supreme Court decision. It requires the reading skills of a C student first grader. And things are not comparable to the Commerce Clause, which is a generality. And things are not comparable to the ACA, which is a long and complex statute which must be read as a whole and where Congressional intent must be recognized. The 14th Amendment could not be more specific. How does one rule that the Constitution does not say what it plainly says?

Mr. Dorf raises the possibility that future Justices could interpret the 14th Amendment to not mean what it says. Does this mean we face a future in which Justice Scalia angrily and sarcastically castigates those who argue that it does grant citizenship to individuals born in the United States, that courts have the right and obligation to change the reading when they disagree with the plain text and that people who argue otherwise are fools, idiots and just plain imbeciles? While many may find that preposterous, given Mr. Scalia’s irrational thought process and desire to twist the law to his own personal preferences one must concede it as a possible outcome, and hence justifies Mr. Dorf’s concern of an adverse Court ruling on the issue.

Shag from Brookline said...

Mikes' (from his penultimate - still my favorite word - paragraph:

"Eastwood's own political views are certainly conservative but complex. During his bizarre performance at the 2012 RNC, Eastwood's chief criticisms of Obama/empty chair were that he didn't do enough to bring down unemployment and that he was naive in thinking the war in Afghanistan was winnable given the Soviet experience. These are not the complaints of a conventional right-winger."

is a tad too kind. We all know the race of the person absent from the chair being debated or berated. We all know that the Afghan War came about in 2001, the first year of the Bush/Cheney Administration. We all know about the failure of the Soviets earlier in Afghanistan. We all know about the deep financial/economic hole from the Bush/Cheney Great Recession of 2007-8. (Did Obama ever state that the Afghan War was winnable? ) We all know how Republicans in Congress reacted to the election of Obama in 2008 - our job is to limit him to one term. We all know the many measures taken by Republicans in Congress to thwart Obama at every step along the way during his first term. Surely Clint knew these things. Just as one reads between the lines of a 2 hour movie, one can read Clint's empty chair debate as complaints of a conventional right-winger. Admit it, Client had a lousy script in 2012. The empty chair made more sense than Clint did.

But I still fondly remember Clint's "Play Misty For Me," quite refreshing in the time of Nixon's presidency.

Joe said...

What bothered about Sebelius was that even if I was sympathetic about some of the concerns of the majority in NFIB v. Sebelius (and I didn't think rulings like U.S. v. Morrison, at least applied to the Commerce Clause, ridiculous -- even think a case can be made there though I think a 14A basis for that law, especially as applied to a state college, could be made), as applied there, it was simply ridiculous. I put aside the Medicaid ruling.

So, it is not merely that I don't share their "values" though I do question how consistently they are applied when the justices allow a national abortion regulation applied to a specific procedure -- according to their logic one would think (and Cato and National Republic wrote at the time so too) would be a rank stretch of federal power. It is that as applied there, imho (fwiw), I thought it was just weak.

As to this issue, the discussion is worthwhile though I'll be wary to assume non-whites are free from the sentiment. I remember that famous cartoon where we see the shadow of the opponents of the new breed of immigrants (Italians etc.) in the 1890s, the WASP types once part of the "unwashed" too. I reckon some Ben Carson supporters (admittedly a small sample size) who are black, e.g., might also have something to nasty to say about the "babies" here.

Joe said...

The first comment underlines a problem with some who suggest such and such is so obvious if you just read the text. The obviousness is often only there with presupposed notions. I think both sides does this at times, but one side (often but not adequately labeled "liberal") is more aware that it is a judgment call requiring more than simply reading the text. As Scalia noted once, if it was that easy, why have judges?

Hashim said...

Seriously? Whether or not the US-born children of illegal aliens are "anchor" babies in the sense that they give the parents a hook to stay, conferring citizenship on those children obviously provides a massive reward to their parents for their unlawful conduct, and indeed almost certainly incentivizes such conduct in the first place -- namely, even if the parents can't stay legally, they'll at least have made life better for their kids through their illegal conduct. Whatever one might think about what the "right amount" of immigration is, it seems like a terrible policy decision to award american citizenship to children as a prize for their parents' illegal conduct. I would have thought this would be fairly obvious to folks who think the need to deter illegal conduct is so great that they've invented an exclusionary rule under the Constitution.

Shag from Brookline said...

Hashim would punish the innocent child for the "sins" of his/her parents, a variation of the fruit of the poisonous tree?

Hashim said...

If by "punish," you mean "require to disgorge unlawfully obtained benefits," then yes, I would (if the Constitution would allow, which is a question I haven't studied).

Hashim said...

PS. "Innocent" purchasers of stolen goods often have to return them, even if they've detrimentally relied. Here, the parents are essentially stealing the incredibly valuable property interest of american citizenship for their children.

Shag from Brookline said...

But a newly born child in America is not in the same category as a purchaser of stolen goods. Perhaps Hashim would offer as a remedy for the child a law suit against his/her parents? What if a newborn were dropped off at a house of worship by the illegals to care for the child? Would conservatives such as Hashim call for some form of profiling of the newborn to make sure the newborn has no connections to illegals? What if the mother were an illegal but not the father, would that make a difference? I await heartless responses, strictly according to law, of course.

Joe said...

"award american citizenship to children as a prize for their parents' illegal conduct"

The 14A sets forth a certain rule that those born here are citizens and the alternatives have various problems as Prof. Dorf et. al. explains. Seriously.

The "prize" is obtained because the children are born here. Likewise, the parents will get a "prize" if they are prosecuted on U.S. soil since the Constitution says "persons" have to have a modicum of due process of law. Other countries might treat them differently.

The prosecution hypo is more appropriate, I think, since there the parents more directly are the beneficiaries. Here, the child is the core beneficiary. The parents benefit too since it after all their child, but that's akin to saying a person who actually murdered someone being found innocent since "beyond a reasonable doubt" standard is a high test is a "prize" to the person's parents. Who after all probably are happy s/he isn't in prison.

In both cases, however, the result is acceptable given the value of the overall principle in place.

Greg said...

There are many reasons to be against birthright citizenship in the face of significant amounts of illegal immigration.

The over-inclusive argument is that the US-born children (and indirectly the parents) are benefiting from the illegal actions of the children's parents.

However, there is a similar under-inclusive argument. If giving citizenship to children of illegal immigrants who are born in the U.S. is good policy, why is it also good policy not to extend citizenship to children who happen to be born in another country but move to the U.S. as infants? Surely those children are no more morally culpable than their siblings who happen to be born in the U.S..

The point is, birthright citizenship is a nonsensical policy with respect to illegal immigration. It might make sense to extend citizenship to the children of illegal immigrants or it might not, but extending that citizenship based on the location where that child happens to be born is not the appropriate criteria to base that decision on.

None of this has to do with the legality of not extending birthright citizenship. Despite having some objections, it's pretty clear to me that the 14th amendment requires birthright citizenship, so a constitutional amendment is required to change it.

BTW, if your intention is to undeniably extend citizenship to a group of people who have been living in the US for generations without being full citizens, birthright citizenship is a sensible policy. My point is not that the 14th amendment was a bad law when enacted, it's simply that it has become inadequate for today's policy needs.

Joseph Simmons said...

As Joe says, it's not so easy as just reading text. This is not an issue I've studied either, but looking only at the text, the answer is not "obvious":

"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."

Ted Cruz says that the Constitution does protect birthright citizenship and that arguments against it are unfortunately weak, so there's that at least.

I think perceived inconsistency in application of constitutional principles is beside the point. No side in a debate is going to be consistent, especially when politics are part of it. Plus, different issues can include different concerns. Any individual who remains consistent should be praised but I expect to be inconsistency among the collection of individuals on either side.

What "values" are not shared on the Commerce Clause matter? Conservatives and libertarians (and previously, I believe, a greater share of liberals) valued individual liberty along with a healthy fear of a government that could simply command people to do what it thinks should be done. I understand how philosophical and semantic gymnastics using Filburn and Raich as parallel bars (ignoring the differing values underlying those cases) can support a different set of values (regarding universal health coverage), but it seems political motivations played a greater role than differing values.

Hashim said...

Shag, there's nothing "heartless" about pointing out that it's grossly unfair that, among the millions and millions of children born throughout this world to non-americans who would love to be american citizens, the ones who get to are the ones whose parents break our law, rather than the ones who comply with it. For example, I've got countless family and friends in India whom I'm sure would have been thrilled to gain American citizenship for their kids. But since they have the misfortune of not sharing a border with America, they, like my parents and uncle, had to wait in line for a visa, rather than hop a fence or wade a stream. I thought folks like you cared about distributive equality -- on what conceivably rational and fair allocation of resources should american citizenship be doled out based on the fortuity of sharing a border with america and a willingness to break america's laws.

Michael C. Dorf said...

I understand most of the comments here to be on my column rather than the blog post, as the column is actually about birthright citizenship rather than the social meaning of opposition to birthright citizenship, which is what the post is about. Here I'll simply note that NO citizenship rule other than the unworkable "everyone everywhere is a U.S. citizen" is fully principled. That's why my normative argument for retaining birthright citizenship--even for children born to undocumented immigrants--was primarily pragmatic. The money quote from my column is: "If we are not going to deport the millions of people born here to undocumented immigrants—and we are not—then there is little reason to withhold the sense of belonging and the concomitant sense of duty that go with citizenship." I also offered an account of how birthright citizenship comports with fundamental American values. To argue--as some of these comments do--that birthright citizenship draws imperfect lines is to demand the impossible. Any citizenship line is imperfect. While it is fair to infer that for some number of people who come to the U.S. illegally, the prospect of having U.S. citizen children is enough, at the margin, to motivate the decision, there is very little evidence that this is a major driver of illegal border crossing, as opposed to a side effect of a fundamentally economic decision. The undocumented immigrant population in the U.S. declined by about 7% in the wake of the 2008 economic downturn. If the prospect of "anchor babies"--which confers long-term benefits on the beneficiaries and their descendenats--was driving a lot of the undocumented migration, then one would not expect it to be sensitive to short-term economic conditions.

pvine said...

I agree with Prof. Dorf that, as a policy matter, retroactive deportation of so-called "anchor babies" is wrong and will never occur even under a Trump administration. But, going forward, it seems to me that a policy that eliminates the granting of citizenship to "anchor babies" (assuming it can pass constitutional muster) is the way to go, regardless of the subjective motivations of the baby's parents. Hashim, IMO, has the better argument. And, to be sure, I am not a xenophobic Dirty Harry by any means.

Hashim said...

Mike, there are millions of people here who aren't getting deported but also aren't getting citizenship. Green-card holders, people on worker visas, etc. If your point truly is just pragmatic, then it'd be far more equitable to give the us-born children of illegal immigrants green-cards rather than citizenship. That way, they get significant protection by virtue of their "innocence" while not getting a massive windfall due to their parents' illegal actions; and that way, if and when they prove themselves not so "innocent" by, for example, committing crimes, they can be deported rather than imprisoned at taxpayer expense while remaining entitled to all the other benefits of american citizenship. I'm sure there are a whole host of other intermediate positions that would be equally workable. In short, while any citizenship line may be imperfect, it's pretty clearly the least perfect line to adopt one that serves only to reward the children of law-breakers at the expense of the children of law-abiders.

Joe said...
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Joe said...

"American citizenship be doled out based on the fortuity of sharing a border with america and a willingness to break America's laws"

This isn't the rule. Italian with expired visa? Her child too.

"serves only to reward the children of law-breakers at the expense of the children of law-abiders"

This is not the case either. Basic rule in place. Rewards range of people.

Samuel Rickless said...

Hash, current immigration law (please correct me if I'm wrong) limits immigration to the United States to 675,000 per year. By my count, that is 0.002% of the total population of the United States. In 1890, there were about 63 million people in the US. Between 1880 and 1920, the US took in roughly 500,000 legal immigrants per year, which represented 0.007%. If my math is right, that was 3.5 times the rate of immigration that we are seeing right now. Also, current immigration law restricts the number of legal immigrants from each country. Total immigration from any one country cannot represent more than 7% of the total immigration from all countries. Your chances of becoming a US citizen if you are rich are much higher than your chances of becoming a US citizen if you are poor.

It's pretty clear that this is just totally unacceptable, in more ways than I can count. It's not that the caps on immigration are arbitrary. It's that the caps are so low and so unfair. So I find it more than a little ironic that you are complaining about how unfair it is for people to enter the US illegally, when the very laws that they are breaking are unjust to the point of craziness. The United States is the richest country in the world, and can support a much higher level of immigration. It is a country that *prides* itself on being a country of immigrants. It is a country that was created by people who fled what they took to be unacceptable religious persecution.

The question, then, is what to do when a large number of people are breaking an unjust law, while others, who can't or who refuse to break the law are unable to get a visa. The situation is morally more complicated than it would be if our immigration laws were more nearly just. One of the complications is that getting into the US is not nearly as easy as "hopping a fence" or "wading a stream". People die every year in the desert trying to cross into the US. Others are smuggled in in small containers, via truck or ship. You have to be pretty desperate to take those kinds of risks, only in order to find yourself in a country where, if anything goes wrong, you are not going to want to risk asking help from any State agency (particularly the police) for fear of being deported. So, chances are that people will take advantage of you. If you work and your employer refuses to pay you, what recourse do you have? If you live in an apartment, and the landlord doubles the rent illegally, what recourse do you have? If a drunk driver hits you, what recourse do you have? And on and on. If you think that life as an undocumented immigrant is all fun and roses, I have news for you. The problem is one of pervasive fear and insecurity.

I feel for those who wait patiently for a visa for many years. But I also think that the idea of deporting people who have taken risks to join our society, knowing that they will be living in perpetual fear of deportation and as second-class participants merely because they have broken a terribly unjust law, is wrong.

David Ricardo said...

I would suggest that those who think there is ambiguity in the 14th conduct this simple, easy test, one that can be done at home.

1. Find an individual born in the US of undocumented parents.
2. Have this individual commit a crime.
3. Have the individual take as his or her defense that he or she is not subject to the jurisdiction thereof of the jurisdiction charging the individual with the offense.
4. Observe the attendant result.
5. Repeat as necessary.

Yep, that ought to do it.

David Ricardo said...

Maybe it is already happening, sort of. From the AP, where an illegal alien was found to be guilty of having a bullet in his pocket.

"The 7th Circuit panel, however, ruled unanimously Thursday that the term "the people" in the Second Amendment's guarantee that the right of the people to keep and bear arms shall not be infringed also applies to those in the country illegally. The ruling, which applies in Illinois, Indiana and Wisconsin, conflicts with opinions from three other federal appellate courts in recent years that found the Second Amendment doesn't apply to people in the country illegally.

"We see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded," Chief Judge Diane Wood wrote.

But the panel upheld Meza-Rodriguez's conviction, saying the federal ban on people in the country illegally possessing weapons remains valid. Wood wrote that the right to bear arms isn't unlimited and the government has a strong interest in preventing people who have already broken the law by coming to the country illegally from carrying guns."

The pure joy of this decision, besides the fact that it illustrates Mr. Dickens point about the law being an ass, is the dilemma for the conservatives/gun rights folks. On one hand they can argue that the 2nd amendment does give anyone in this country to right to bear arms, thus solidifying the claim that they are subject to the jurisdiction of the United States, or they can support the conviction and thus give support that the 2nd is not unlimited and that a large group of people in the U.S., mainly those who have done anything illegal, have no right to bear arms.

Which is it people?

And apparently there are Circuit conflicts, so hopefully this get to the Supreme Court if for no other reason than the entertainment value, and maybe Mr. Dorf can enlighten us in the near future on why the otherwise somewhat rational 7th Circuit issued such a bizarre ruling.

Shag from Brookline said...

Hashim responds in part to a comment of mine:

"I thought folks like you cared about distributive equality -- on what conceivably rational and fair allocation of resources should american citizenship be doled out based on the fortuity of sharing a border with america and a willingness to break america's laws."

I think of the history pre- and post-Revolution of peoples who came here for various reasons without immigration laws in place, as well as with immigration laws in place, that helped to make America what it is today. Many of such arrivals did not come from a bordering region. (Some were brought here against their will in chains.) Many died before or upon reaching our shores, as I learned of the Irish in the 1850s. Perhaps Hashim , now he's got his in the legal manner, is a Malthusian about America's situation - or perhaps he is concerned that those born in America may not vote the way he votes.

Heartlessness is in the eye of the beholder. Beholders, such as myself, may consider this that Hashim addressed to Mike:

"In short, while any citizenship line may be imperfect, it's pretty clearly the least perfect line to adopt one that serves only to reward the children of law-breakers at the expense of the children of law-abiders."

It's clear to me that Hashim is indeed heartless. Fortunately I assume that the statute of limitations may have run for many "children of law-breakers" who have made significant contributions over the years that have benefitted "children of law-abiders."

U. S. immigration laws over the years have been biased in favor of certain Europeans. Asians were given short shrift for too many years. Calvin Trillin, writes on politics and cuisines, once commented that until the immigration laws were changed around 1970 to permit in more Asian, cuisine in New York City where he resided was bland and in the doldrums. With this change, Asians from several countries were admitted, settled in New York City, opened restaurants and revived culinary arts. Pluralism leads to vibrancy in a democracy. We learn of cultures and cuisines other than our own. As a first generation in a short diaspora here in America (much shorter than the Jewish diaspora), I enjoy the distributive equality of those groups coming here in more recent years than when my immigrant parent came here in the 1920s.

Hashim said...

Sam, first off, you're fighting a strawman, since the question being discussed here isn't whether the us-born children of illegal aliens should get deported, but whether they should get full citizenship, rather than some intermediate status. No matter how unjust our immigration laws -- and I agree with you that they're not particularly wise (though not for the reasons you suggest about some moral obligation to spread the wealth) -- it's very hard to understand why they should be treated completely identical to the children of law-abiding immigrants, much less law-abiding citizens.

Moreover, your argument proves too much, because it seems to apply equally to the parents themselves. I.e., our immigration laws are unjustly narrow, so anyone courageous us to get here should be rewarded with full citizenship, despite having illegally jumped the line. Conversely, if our immigration laws are sufficiently just to warrant denying the parents citizenship, even if we're not going to deport them and so they're going to stay under some lesser status, then why not deny the kids citizenship too? Again, the kids' "innocence" hardly seems like a sufficient answer, since the "innocent" beneficiaries of unlawful conduct don't generally get to retain the ill-gotten gains. I'm open to the argument that the kids should be treated better than their law-breaking parents given their innocence, but it seems ludicrous to treat them equally to the children of law-abiding people (though the 14A may well require that ridiculous result, a question on which I remain agnostic on for now, having not studied the relevant history of citizenship that informs the "subject to jurisdiction" provision).

Hashim said...

Again, Shag, not sure what you think you're proving by pointing out that this country has benefited in the past from broader immigration, including even from illegal immigrants. That assumes, wrongly, that i'm defending the current scope of our immigration laws. As I suggested to Sam, I'm more than open to broadening in some respects (and narrowing in others) our immigration laws, in order to suit our country's current needs. My only point is that we're a nation of laws, and our citizens through their representatives have made a decision about what the scope of immigration laws are, and thus people (or their children) shouldn't be given the ultimate reward of american citizenship for flouting those laws. Put differently, unless you support completely open boarders, there are at least some people you presumably would deny entry to -- and yet if those people hop a fence and then have a kid, you'd blithely hand them (or their kids) the reward of us citizenship (rather than some lesser status like a green-card) for having violated a hypothetical just immigration regime. I just think that's crazy -- in what other context would law-breaking be rewarded so greatly, let alone punished so little.

Joseph Simmons said...

David Ricardo, one needs to address what is meant in the 14th Amendment by "subject to the jurisdiction thereof." At the very least, we can recognize that the meaning is not obvious on its face. You suggest a meaning by way of analogy - ignoring whether the two concepts of jurisdiction are actually the same. Sometimes a defendant does successfully show that a court does not have jurisdiction.

Following your brand of logic, imagine that woman from Mexico comes to the U.S. and gives birth and then returns to the Mexico the next day. As far as I can tell, U.S. courts would not have jurisdiction over the child. Americans who travel abroad do remain subject to the jurisdiction of the U.S. It's not such a simple matter as you pretend.

Joe said...
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Shag from Brookline said...

Hashim in partial response says:

"My only point is that we're a nation of laws, and our citizens through their representatives have made a decision about what the scope of immigration laws are, and thus people (or their children) shouldn't be given the ultimate reward of american citizenship for flouting those laws."

First of all, even though my law school days began in the Fall of 1951 and I was exposed to this being a nation of laws through a legal practice that began in 1954 and continues to this date in a limited way, we all need to be reminded from time to time. I'll note that nation lf laws phrase would often be followed by "not of men [and subsequently women]." It must be kept in mind who makes the laws and who interprets/construes the laws, to wit men and women. The 14th A in Section 1 provides: " 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." Section 5 provides: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

One of Congress' powers under the 1787 Constitution is to "establish an uniform Rule of Naturalization...."
Article I, Section 8, Clause 4

Hashim seems to be referencing ac pursuant to Section 5 of the 14th A?ts of Congress in making his point. Can Congress with legislation override the quoted language in Section 1 of the 14th A? Our nation of laws includes not only acts of Congress in compliance with the Constitution but the Constitution itself as amended. Perhaps Hashim is of the belief that Congress can create a caste system here in America. Perhaps Hashim believes there is an equitable provision in the Constitution so empowering Congress. It seems Hashim believes that the new born infant is flouting laws in addition to the infant's parent(s). Query: Isn't there an age issue for children to be able to flout laws? America is thought by many to be a Christian nation. both n its formation and continuing. Perhaps the framers had in mind biblical proscriptions on visiting the sins of the father upon the child.

I'll stick with the heartless.

Greg said...

I think my comment has been mischaracterized by Prof. Dorf. While I did discuss the merits of birthright citizenship, it was more in the context of the idea that one can be against birthright citizenship even primarily due to the "anchor baby" issue. This position seemed to be dismissed by the blog post.

While I didn't bring it up in my post, I also feel this way about NFIB v. Sebelius. I personally have strong reservations about the constitutionality of the individual mandate, even as I ultimately believe it's an important part of healthcare reform.

These are important constitutional or policy issues. While some suits like King v. Burwell are just vindictive, some of these others really do include important constitutional questions. One doesn't have to be Dirty Harry (or even a Republican) to see that sometimes there are merits to the Republican side.

Joe said...

I think the 7th Cir. ruling makes some degree of sense.

The bare minimum there was that non-citizens have a RKBA and that makes sense for two reasons. First, other rights of "the people" are enjoyed by non-citizens such as the right to assembly. Second, alienage is a suspect class and denial of rights on that grounds has to meet strict scrutiny. The RKBA has been held to include a right to self-defense. Aliens have that. They also have been allowed into the military.

Then, the opinion held that the mere grounds of not being documented isn't enough. This for similar reasons make sense, especially for those here for a long time voluntarily with some connection to the community as the person here. The question then becomes if something else -- such as breaking a law making it reasonable to restrict because something special about guns make that an issue or the "life in the shadows" that make it harder to 'well regulate' -- warrants denial. Given precedent, that is reasonable.

How far to take that is debatable -- should Martha Stewart, e.g., have a life time denial of gun rights since she is a convicted felon? How petty of a crime, even non-violent, should be enough? Should the undocumented be denied a right to a gun for self-defense in each case, including those who were attacked in the past? etc.

The 7th Cir. didn't have to go as far as it did since it in the long run upheld the restriction. But, since various rights would be denied if the undocumented were not part of "the people," it is somewhat understandable why it so decided.

Hashim said...

Shag, you might want to try reading a bit more carefully, since i must have said at least three separate times that I was solely addressing the question whether birthright citizenship for the children of illegal aliens makes any sense as a policy matter, *not* whether the contrary policy that I prefer is constitutionally permissible under the 14A. The latter question is a legal one which i've taken no position on, since i haven't studied the history of citizenship that informs the meaning of the "subject to jurisdiction" clause of the 14A, as explained in the SCt case referenced in Mike's post. I can understand why you'd get confused, because you seem to think there's no distinction between policy preferences and law. But, as the entire basis of my policy position against birthright citizenship for the children of illegal aliens should make clear, I do think that law has independent force even when the law is an ass, and thus the Constitution sometimes requires asinine things. Birthright citizenship for the children of illegal aliens might well be one of them.

Samuel Rickless said...

Hash, the principle I discuss applies with equal force to both deportation and underclass status. If the immigration laws are deeply unjust, neither the undocumented parents nor their children should be made to pay for the fact that the former have broken these laws. Claims of unfairness having to do with not having waited in line along with everyone else just don't hold much water. It seems to me that if the parents have braved the process of crossing the border illegally for the sake of a chance at a life of fear and insecurity that they think is better than the life in their home countries, then, even apart from the fact that their children are citizens as per 14A, they should be given the chance to become citizens themselves. We can argue about the details of the path to citizenship, but it seems to me that this is the right way to handle the issue. If the laws were just, then I would find myself much closer to the position you are occupying. But the laws are unjust, not merely unwise. And that makes all the difference.

Shag from Brookline said...

Ashim, I do read your comments with care. And I'm not confused by the complexity of some of your complex sentences. It was you who made the the reference "My only point is that we're a nation of laws, ...." The laws of this nation include the first sentence of Section 1 of the 14th A, with respect to which you decline to opine even though that is the elephant of law at basic issue. The Originalism Blog has several posts on Section 1 that are of interest. How can Section 1 be ignored in the discussion. By the way, comments here are not moderated for relevancy and neither nor you set the terms of the discussion on this thread.

Perhaps you should study Section 1 to better respond to my points instead of working backwards from acts of Congress in coming to your conclusion. Perhaps you could state a policy you prefer on the issues raised by Mike's post. But you do have to look at that elephant in the room of laws on citizenship, etc. I'm sure some would appreciate the views of someone who thinks he hit a triple rather than fortuitously being born on third base (in America via legals).

As to your " ... when the law is an ass, ... " reference, keep in mind the "ass-laws" that the 14th A, as well as the 13th and 15th, addressed.

I'll stick with my heartless and add xenophobic. Yes, even first generation persons can be xenophobic.

Hashim said...

Shag -- "Section 1 can be ignored in the discussion" for the simple reason that there's a massive and obvious difference between whether something is a good policy and whether something is constitutional. Mike's post was focused on the policy question, and that's what I've focused on as well. You can fixate on Section 1 all you want, but it's simply irrelevant to the points that I was making in response to Mike.

Here's another way of making this obvious point clear to you -- let's imagine that, tomorrow, Section 1 of the 14A was repealed; we'd still as a nation have to make a policy decision about whether to allow birthright citizenship for the children of illegal aliens. That's the policy question on which i'm focused, because i don't like to spout off on legal questions that i don't know enough about.

Finally, your ad hominem of xenophobia is pretty hilarious, since i've repeatedly said in these comments that i'm entirely open to *expanding* the immigration laws. I don't have a problem with foreigners; I've got a problem with foreigners who flout our law and then ask for a reward for having done so. Again, as I pointed out in an earlier comment and you noticeably ignored -- unless you favor completely open borders, even you yourself would restrict *at least some* individuals from entering this country; and the question is why individuals who violate even the very just immigration laws that you yourself would construct should be rewarded for their lawlessness. Now, perhaps you have some crime-lover reason for doing so, but it's hardly xenophobic or heartless to say that american citizenship shouldn't be a prize for law-breakers or their children.

Joe said...

What things should be denied to undocumented aliens? For instance, if their leg is broken, why should they get the benefit of free medical care? Why should we provide services to their children during the time they are here? Why stop at birthright citizenship? Why should they get due process of law much superior to their own country?

The gratuitous nature of things, putting aside Samuel Rickless' discussion (and how U.S. policy and demand encourages the "lawbreaking"), is that we can deal with lawbreakers here in various ways. They can be fined, arrested or even deported. And have been. Their children aren't lawbreakers. They are the primary beneficiaries of citizenship. A basic rule is applied to all.

Birthright citizenship is in place because like "beyond a reasonable doubt" the basic rule is seen as having basic good even if some will get an unpleasant to some "windfall." It is practice of longstanding for those who think that adds something. It sets forth a clear rule and avoids a potential large stateless class that will provide divisions particularly likely to be based on race. In this country, there is something special about the land itself, e.g., just stepping on our soil will give you certain basic protections. Ditto if you are born here. We are a nation of immigrants, so newcomers having alien parents is not a problem. We also don't like "corruption of blood" and don't pass wrongs of the parent to the child.

This is seen as wrong and the fact, like a factually guilty murderer who is found innocent by a jury, the fact it isn't perfect is duly noted. Again, the true "law breakers" can be punished in a range of ways.

Hashim said...

Joe, I'd start with citizenship because it's so fundamental. Regardless of what other benefits the children of illegal immigrants should or shouldn't get, they shouldn't get the thing that makes them full members of the american community who are legally equivalent to the children of citizens and legal immigrants -- that would be too great a reward for their parents' law-breaking, and too great an incentive to engage in such law-breaking.

Birthright citizenship is in place to overrule Dred Scott. I don't think anyone at the time of the 14A gave a moment's thought to what should happen to the children of illegal aliens, let alone with population numbers this large (indeed, I'm not sure there were even federal immigration laws in place in 1868). Regardless, the 14A says what it says, and if the "subject to jurisdiction" clause isn't enough of a hook i/l/o the history it was implicitly referencing, then so be it. But I don't think the mere fact of the 14A is any evidence at all that this is a wise policy, rather than one that we may be stuck with.

Finally, again, not only is it not "perfect," but it's entirely unnecessary. Giving these kids long-term permanent residence (green cards), for example, is a far more sensible compromise between compassion for the kids and fidelity to the law. There are plenty of people in this country with green cards, and they're doing just fine. Why should these kids be treated better, based merely on the quirk that their law-breaking parents had their children after they'd broken the law rather than before.

Joe said...

Prof. Dorf as have others with more expertise specifically in this area noted that obtaining citizenship for children was at best a minor reason for the law-breaking in question. Again, to deter them, there are various means to punish the people directly, not burden their children. As to the children, the individuals are as innocent as the children of a murderous citizen.

Finally, since the children is a minor reason for the illegality, it is a curious thing to focus on if we don't want lawbreakers to get "windfalls." Duly noted citizenship is central, but so is care necessary for survival or due process of law. Often more so, since many legal aliens choose not to be naturalized but find such things very important. And, as a result, there are various negative problems with such an exception, which only underlines the problem. OTOH, not that I find them ideal, something else tied to the mature lawbreakers in question would be less problematic.

As noted by Prof. Dorf's Verdict column, a key late 19th Century precedent explaining the 14A rule here noted "common law and practice that formed the backdrop for the Fourteenth Amendment." The birthright rule wasn't invented in 1868. Its core purpose was to have it consistently applied to non-whites, including Asians, who were already being discriminated against and whose free immigration was a growing concern in the nation.

My remarks are not merely based on "it says it, so we can't change it" so that part of your reply perhaps refers to someone else.

What rule is "entirely necessary"? Your rule surely is not, even if you compromise to give a limited "windfall" to the parents by giving their innocent children a greencard. If we are going to make an exception to a basic rule, for which exceptions result in harms to innocent third parties, there should be a compelling reason to it. But, there isn't any here -- there are means to penalize lawbreakers here without treating their innocent children unequally to other children who as to themselves are in an equal place minus the crimes of their parents.

The centuries wide rule has various benefits. There are many rights with "quirks" to them, including this one. Formulating exceptions to deal with quirks especially when alternatives are available to deal with the problem (if problem there might be) to me seems unnecessary and ill-advised.

Shag from Brookline said...

Hashim is perhaps a tad more sophisticated in his position than most of the GOP "sweet 16 +1" who are clearly xenophobes. So Hashim should not be so sensitive in being so described by me.

Mike's post includes a link to his Vertdict essay. I don't know if Hashim has read the essay but it is quite straight forward, including with respect to challenges coming from conservatives and the GOP "sweet 16 +1" on birthright citizenship. Hassim's ignoring of or reserving on Section 1 of the 14th A is a form of hedging, perhaps with a moistened finger up to the winds of the current tsunami on the issue. I am reminded of a law office associate who, when a client would call about his case, would ask the client "Do you know the recipe for "Muskrat Stew?" and following the silence of his client would bellow "First you've got to catch the muskrat!" Section 1 is the muskrat. Hashim continues to ignore Section 1, which of course he can do. But Section 1 doesn't go away. Hashim talks about "good policy" but is that how the Constitution was measured in anti-bellum days? Or subsequently after the failure of Reconstruction on the ground with Jim Crow? Unless some clever attorneys, as suggested by Mike in his Verdict essay and in his post, can come up with an interpretive solution, an amendment to the Constitution may be necessary to accomplish the equitable policy goals preferred by Hashim. This is not irrelevant to the issue of birthright citizenship.

Hashim continues to hang his hat on illegal aliens in his tirade against their new born infant in America who is an innocent. Hashims rides the personal situation of his father and uncle to vent his anger at the new born infant. Hashim apparently feels that he earned his citizenship as a child of legals as opposed to a child of illegals. Many of us are for God, mothers and apple pie. Hashim likes foreigners, but has great concerns about those illegals from the borders (aka Mexicans), comparing these to those from non-bordering countries who want to come to America. Hashim sounds a little like Trump, "the Latinos like me," "the blacks like me." I can read between the lines of the GOP "sweet 16 + 1" and I can read bead between the lines uttered by Hashim over his several comments at this thread. I'd like to have a fair and just immigration system. Over the years America's immigration has not been uniform as every once in a while xenophobia dominates, changing the system. We have a wave of xenophobia today, exacerbated by the GOP "sweet 16 + 1."

Hashim's desire to limit the discussion: "That's the policy question on which i'm focused, because i don't like to spout off on legal questions that i don't know enough about." is feeble. He should take a look at Mike's Verdict essay that is in no way spouting off, as it is well thought out, including references to current challenges of birthright citizenship. Hashim might try catching the muskrat as otherwise his stew will not include all of the laws of this nation of laws.

Greg said...

Shag, hold on.

Hashim may know more about the 14th amendment's legal applicability than he lets on, and you may find his policy preferences distasteful, but it's hardly unreasonable to consider what an ideal immigration policy would be on an otherwise blank slate without referencing what the current immigration law actually is (constitutional or otherwise.) If "ideal policy" doesn't match the current law then the practical matter of how to change current law to better match that ideal policy can reasonably be considered a separate discussion.

Further, I don't think Hashim was accusing Mike of spouting off, he was claiming that due to his ignorance (feigned or not) it would be spouting off for Hashim himself to discuss the legal aspects of the 14th amendment.

This may be ignoring the elephant in the room, but it's not unreasonable to ask whether the room should have an elephant in it before deciding exactly how to get the elephant out. Otherwise, removing the elephant from a room that is supposed to have an elephant in it is a colossal waste of time. :-)

Shag from Brookline said...

Greg, I accept your expertise on the Big Top especially with the GOP Clown Limo and the "sweet 16 +1," presenting a political circus atmosphere for the 2016 presidential election that has aroused the matter of birthright citizenship together with xenophobia once again. But recall the elephant in the room that brought about the Civil War and the Reconstruction Amendments. That elephant was addressed directly and not back-asswards.

I never suggested any such accusation by Hashim of Mike's Verdict essay. I even stated that I did not know if Hashim had read it. It was Hashim who said he didn't want to spout off on Section 1 of the 14th A without having studied it. [You suggest that Hashim knows more about the 14th A than he lets on. Is that a guess? Why would he hide this? Hashim emphasized several times that his interest was elsewhere on the immigration issues involved.] I made the observation about Mike's essay because he covered most, if not all, of the bases, including those who have a different view. And Mikie's post, in addition to his Verdict essay, put just about everything in the open for discussion, pointing out that clever lawyers can come up with contra theories as in the case of ACA and the Commerce Clause and and state exchanges.

I'm not trying to control or limit the discussion, but can you get a shovel to clean up after the elephant so the Clown Limo will not ruin the main event? Meantime, I'm hankering for some cotton candy.