The Libertarian

Vin Suprynowicz
Website: Liberty Book Shop
A few weeks back, we were debating in this space whether the 14th Amendment grants automatic birthright citizenship to children of illegal aliens born in this country. A helpful reader refers us to a Dec. 7, 2005 letter to the Wall Street Journal from the esteemed John C. Eastman, professor of law at Chapman University and director of the Claremont Institute Center for Constitutional Jurisprudence, last seen in these parts lending noble service in the failed attempt to reverse the embarrassment of the Nevada Supreme Court’s goofy decision in “Guinn v. Legislature,” which may have set a modern record for insulting the public through reliance on laughably false premises.

(After three full years, the first of the Guinn v. Legislature lamebrains to submit their judgment to the voters will be Justice Nancy Becker, in the Aug. 15 primary. Go to the polls; give her my love.)

Back on the subject of the 14th Amendment, in text posted at www.claremont.org/writings/051207eastman.html, the good professor offers: “Tamar Jacoby (‘Kiss the Melting Pot Goodbye,’ Nov. 19) finds my interpretation of the Constitution’s Citizenship Clause ‘alarming’ because it would permit Congress ‘to exclude illegal immigrants by statute’ rather than by constitutional amendment. Ms. Jacoby’s argument demonstrates a misunderstanding of the Constitution’s mandate and the political theory on which it is based.

“The 14th Amendment provides that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens. ...” professor Eastman points out. “To treat the last clause as describing merely territorial jurisdiction, as Ms. Jacoby does, is to render the clause superfluous. Even temporary visitors are subject to U.S. jurisdiction in that sense; everyone here has to obey our traffic laws, for example. The clause must therefore mean something much more -- an allegiance-owing jurisdiction.

“The debates in the Congress that approved the clause, and the unanimous opinion of the Supreme Court justices who first interpreted it, confirm this understanding. Sen. Reverdy Johnson of Maryland explained during floor debate, for example, that ‘all this amendment provides is, that all persons born in the United States and not subject to some foreign power -- for that no doubt is the meaning of the committee who have brought the matter before us -- shall be considered as citizens of the United States.’ The author of the provision, Sen. Jacob Howard, announced that the clause ‘will not, of course, include foreigners.’

“The Supreme Court first considered the clause in the Slaughter-House Cases of 1872, unanimously recognizing that the phrase ‘was intended to exclude from its operation children of ... citizens or subjects of foreign States born within the United States.’ This view was confirmed in the 1883 case of Elk v. Wilkens. The phrase, according to the court, meant ‘not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.’ Children of temporary visitors to the United States, particularly those who are here illegally, owe primary allegiance to their parents’ country, not to the U.S., and are therefore not guaranteed citizenship by the terms of the 14th Amendment. ...

“In 1898, the Supreme Court raised the citizenship floor mandated by the Constitution slightly, to include children of legal, permanent residents who, by virtue of a treaty with the Chinese emperor, were never eligible for citizenship themselves. But to read the holding in Wong Kim Ark as determining that the Constitution also mandates automatic citizenship to children of temporary, illegal immigrants not only presses the Constitution’s text beyond the breaking point, but significantly intrudes on Congress’s plenary power over naturalization.

“More fundamentally,” professor Eastman concludes, “such a view permits illegal immigrants, by their unilateral and illegal action, to demand membership in a political community supposedly grounded on mutual consent. It permits people such as Yaser Esam Hamdi, who clearly owed his primary allegiance to a foreign power and who was captured in Afghanistan in armed conflict against the U.S., to lay claim to the protections of citizenship merely because he was born in Louisiana while his father was on a temporary work visa. And it prevents Congress from making the critical policy judgments about the level of sustainable immigration that the Constitution deliberately assigns to it, providing instead a strong incentive for illegal immigration that fosters the kind of separatist communities within our midst that have produced mass riots in France. We should be heartened, not ‘alarmed,’ that Congress is beginning to take its responsibility over immigration seriously.”

Professor Eastman here employs the perfectly sensible theory of legal interpretation which holds that folks writing something as significant as a constitutional amendment don’t tend to drop in clauses that are “moot” -- that fail to change the meaning of what’s written. If we interpret “subject to the jurisdiction thereof” to mean nothing more than “liable to be pulled over by the first traffic cop who sees them running a red light,” then the phrase as written means nothing different from “All persons born or naturalized in the United States are citizens.”

Why would the authors of the 14th Amendment have inserted the clause “and subject to the jurisdiction thereof” if it has virtually no meaning?

This debate -- which asks, at heart, whether a constitutional amendment would be needed to prevent illegal aliens from permanently attaching themselves to the teat of our welfare system through the production of “anchor babies” -- is by no means over. But it’s not far-fetched to conclude “and subject to the jurisdiction thereof” must mean something.

For the record, the best solution would still be to take the Roosevelt-Johnson welfare state out behind the barn and shoot it, “re-privatizing” education, medical care, charity, and retirement savings. This would incidentally have the benefit of strengthening American families, churches, temples, and voluntary social organizations -- not to mention our private savings and investment rates -- since the fallback of first resort would again be our families, rather than the government. This in turn would create incentives (because our kids’ competence and earning power would matter, again) to take the schooling of our young out of the hands of today’s wheel-spinning educrats and largely demented teachers unions.

Most “realists” insist that’s politically impossible. But “reality” has a funny way of catching up. Someday, foreigners will stop loaning us money to prop up our bankrupt welfare state. How is your family preparing for that day? Stocking up on gold and silver?


Back on April 14, Marshall Loeb of MarketWatch, in his “Money Tip” column, cited Ken Little, author of “The Complete Idiot’s Guide to Personal Financial Documents,” recommending that, “If you own a coin collection worth $100,000, put it in a bank safe-deposit box.”

The term “coin collection” may be artfully chosen, given that there was indeed a limited “numismatic exemption,” 73 years ago. But let us not forget what happened to our grandparents when they visited their safe-deposit boxes in the period following April 5, 1933.

Under “criminal penalties for violation of executive order, $10,000 fine or 10 years imprisonment, or both,” the tyrant Roosevelt ordered as of that date “all persons are required to deliver, on or before May 1, 1933, all gold coin, gold bullion, and gold certificates now owned by them,” to the closest Federal Reserve bank.

I’m reliably told a bank officer would go with you to look in your box, and -- if he saw any gold there -- would seize it for Mr. Roosevelt’s government as ordered, paying you for it in paper notes which still said “dollar,” but which were not convertible to gold. Leaving aside the numismatic value of those "horse blankets," those dollars are today worth less than 4 cents apiece, in 1933 dollars.

Not that this would bother any Democrat, even today. For who would even HAVE a bank safe deposit box, other than “the rich”?

Care to amend that advice, boys? Or will you blithely assert that our central government is less brazen and rapacious today -- as supermarkets warn us that under federal “FINCEN” edict they can no longer cash checks or sell us money orders totaling more than $999 -- than it was in 1933?