What does the US Constitution say about birthright citizenship?

Arganagh Posted on October 31, 2018 by

Section 1 of the 14th Amendment to the US Constitution:

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The meaning of the first sentence was decided by the US Supreme Court in 1898, in United States v. Wong Kim Ark. The decision is 84 pages long, so I’ve excerpted a few key points.

Here are the facts in the case:

That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento Street, in the city and county of San Francisco, State of California, United States of America, and that his mother and father were persons of Chinese descent and subjects of the Emperor of China, and that said Wong Kim Ark was and is a laborer.

That, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid.

That said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China.

That during all the time of their said residence in the United States as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China.

That ever since the birth of said Wong Kim Ark, at the time and place hereinbefore stated and stipulated, he has had but one residence, to-wit, a residence in said State of California, in the United States of America, and that he has never changed or lost said residence or gained or acquired another residence, and there resided claiming to be a citizen of the United States.

That, in the year 1890 the said Wong Kim Ark departed for China upon a temporary visit and with the intention of returning to the United States, and did return thereto on July 26, 1890, on the steamship Gaelic, and was permitted to enter the United States by the collector of customs upon the sole ground that he was a native-born citizen of the United States.

That after his said return, the said Wong Kim Ark remained in the United States, claiming to be a citizen thereof, until the year 1894, when he again departed for China upon a temporary visit, and with the intention of returning to the United States, and did return thereto in the month of August, 1895, and applied to the collector of customs to be permitted to land, and that such application was denied upon the sole ground that said Wong in Ark was not a citizen of the United States.

That said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.

The court decided, by a vote of 6 to 2, that Wong Kim Ark was a US citizen, and could not be denied entry under the Chinese Exclusion Acts which were in force at the time.

The majority opinion contains a massive analysis of the meaning of the phrase “subject to the jurisdiction thereof”, reviewing 123 years of US legal history and centuries of British common law.

…The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. …

The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof” in the opening sentence, as less comprehensive than the words “within its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”…

In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was “subject to the jurisdiction of the United States” within the meaning of the Fourteenth Amendment, and was “not subject to any foreign power” within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel with the concurrence of Chief Justice Beasley, said:

The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, “all persons born in the United States, and subject to the jurisdiction thereof,” was intended to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race. …

The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, “All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

 

US Dept of Health and Human Services: Conscience and Religious Freedom Division

Arganagh Posted on January 18, 2018 by

HHS now has a “Conscience and Religious Freedom Division” intended to protect the religious liberty of healthcare workers.  As with anything the Trump administration does, this is either a great leap forward or a total disaster, depending on your choice of news media.

Here are the facts:

Official news release, 1/18/18: HHS Announces New Conscience and Religious Freedom Division

Today, the U.S. Department of Health and Human Services (HHS) is pleased to announce the formation of a new Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR). …

The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom. OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information. The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.

OCR already has enforcement authority over federal conscience protection statutes, such as the Church, Coats-Snowe, and Weldon Amendments; Section 1553 of the Affordable Care Act (on assisted suicide); and certain federal nondiscrimination laws that prohibit discrimination on the basis of religion in a variety of HHS programs. …

ABC News, 1/18/18: Trump administration announces new ‘conscience and religious freedom’ division at HHS

… Social conservatives and religious liberty leaders have anticipated conscience and religious freedom protections to come out of HHS, and the work of the new division, which will fall under the purview of the Office of Civil Rights, will likely pave the way for health care workers to refuse specific types of care, like birth control or abortion, based on their religious or conscience objections.

Critics say the move could hurt civil rights protections for lesbian, gay and transgender people, and hurt patient care. …

At the heart of the creation of the new division at HHS is a push by religious liberty and faith-based groups to enforce federal anti-abortion conscience laws, like the 1990s Coats-Snowe amendment and the 1970s Church amendment, which give nondiscrimination protections to federally funded programs that do not provide abortion services, and the Weldon Amendment, started under President George W. Bush.

The move Thursday could be viewed as an expansion of the Weldon amendment, which prohibits any state or local government receiving federal HHS funds from discriminating against any health care organization based on its refusal to “provide, pay for, provide coverage of, or refer for” abortions. The Obama administration pulled back the regulations, instead leaving HHS’s Office of Civil Rights to field complaints for violations of conscience and religious freedom laws. …

Here’s an official overview from HHS about the laws on Conscience Protections for Health Care Providers.  One of the central items is the so-called “Church amendments”:

The conscience provisions contained in 42 U.S.C. § 300a-7 et seq., collectively known as the “Church Amendments,” were enacted in the 1970s to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions. This provision also extends protections to personnel decisions and prohibits any entity that receives a grant, contract, loan, or loan guarantee under certain Department-implemented statutes from discriminating against any physician or other health care personnel in employment because the individual either performed, or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions.

Today’s announcement has lots of rhetoric but no clear indication of how the laws will henceforth be enforced.  For a clue, though, we can look at the list of guests to be present at the official announcement.  Sara Hellwege was one such guest.

Ms Hellwege is a nurse-midwife who, in 2014, applied for a job in the Family Planning section of Tampa Family Health Centers.  TFHC receives a federal Title X Family Planning Services grant, under which they are required to provide:

a broad range of acceptable and effective family planning methods and related preventive health services that include natural family planning methods, infertility services, and services for adolescents; highly effective contraceptive methods; breast and cervical cancer screening and prevention services that correspond with nationally recognized standards of care; STD and HIV prevention education, counseling, testing, and referral; adolescent abstinence counseling; and other preventive health services. The broad range of services does not include abortion as a method of family planning.

Ms Hellwege has a religious belief that some contraceptive methods are a form of abortion, so she was unwilling to provide those services.  TFHC declined to hire her, so she sued them under the Church Amendments and several other laws.  In 2015, the Church Amendment portion of her lawsuit was dismissed with prejudice, because “In the absence of Congressional intent to support a private remedy for violation of the Church Amendments, the Court finds that no private right of action exists under the Church Amendments.”  A settlement was later reached on the remainder of the lawsuit.

We have to assume that the inclusion of Sara Hellwege in this event signals the intent of HHS to enforce a particular interpretation of the Church Amendments — namely, that an employee’s personal belief that a particular procedure is “abortion” is all that is necessary, even if the medical world calls it contraception.  In cases like Hellwege vs TFHC, this means that a family planning clinic receiving Title X grants is required to provide contraception, but is also required to hire employees who refuse to provide contraception because of their religious belief.

It’s difficult to predict whether this sort of thing will be extended beyond abortion/contraception issues.  Will health care employees have federal protection if they refuse to provide other particular types of care to particular individuals on religious grounds?  For example, transgender individuals are currently alarmed and angry that health care providers might refuse to provide certain treatments for gender dysphoria (e.g., dispensing hormone prescriptions or performing surgery) because they have religious objections to such treatments.  We can expect lots of court cases.

Tactical voting in a year of questionable Presidential candidates

Arganagh Posted on October 2, 2016 by

Barring a miracle, the US will soon elect either the candidate of the political ruling class, or the candidate of the economic ruling class, as its President.

Each candidate was chosen based on their ability to manipulate the machinery of their political party. They were assisted by news media that sell politics as entertainment. And they were abetted by millions of Americans who, out of fear, or outrage, or exhaustion, have forgotten the concept of liberty, and why it’s important.

Okay, this is going to be a bad election. What, if anything, can we do to make it less bad?

I think this is a tactical issue. I recommend the following:

  • If you’re in a swing state, vote for Clinton.
  • Otherwise, vote for Johnson (preferably) or Stein (if you must).

Why? Because our tactics as voters should be aimed at both a short-term and a long-term goal:

  • Short-term: Trump is contrary to what America stands for. He is a strongman ruler with a weak brain and no ethics. He must be kept out of the White House, even if it means suffering under Clinton’s presidency.
  • Long-term: The two major parties need to be terrified over what they have done. One of them will win this election, but it must not be with a “mandate”. Third-party candidates need to receive a very high percentage of the popular vote, so that both the Republicans and Democrats will recognize they are not invulnerable.

 

For those of you who are still reading, let me try to justify my recommendations:

Trump

He’s bad. I don’t need to go into detail — you can find plenty on the Internet if you want. But briefly:

  • Trump intends to be boss of the US, not President. Yes, his actions are limited by the Constitution and by the other branches of government. But we know (from our experience with recent Presidents) that it’s much too easy to issue illegal or unconstitutional orders, which then take years and years to work their way to the Supreme Court and be invalidated.
  • Trump loves Putin because he adores the idea of having that much power, and Putin loves Trump because Trump will be so easy to manipulate in the interests of Russia.
  • Trump is a big fan of using the government’s powers of eminent domain for the benefit of big business, most famously in his battle with Atlantic City homeowner Vera Coking in 1993, and in his recent statements with regard to the Keystone pipeline.
  • He’s happy to mistreat entire ethnic or religious groups, based on the criminality of a small percentage. The concept of punishing the innocent along with the guilty is repugnant, cowardly, and contrary to what this country stands for.
  • He’s willing to treat Constitutionally-guaranteed rights as mere privileges to be granted or withheld at the whim of government officials — in particular, the 2nd amendment (no guns for you, if some bureaucrat or computer software puts you on the no-fly list) and the 4th amendment (warrantless search and seizure is just fine, if a cop wants to stop and frisk you).
  • Need more? Here you go: The Many Scandals of Donald Trump: A Cheat Sheet

Clinton

Yeah, she’s not so great either. But I expect a Clinton presidency to be essentially Obama 2: The Sequel. We survived 8 years of Obama, we can probably survive 4 or 8 of Hillary Clinton.

But if you really think she’s the best choice, take a look here: From Whitewater to Benghazi: A Clinton-Scandal Primer

If you are in a state where the race between Trump and Clinton is close, please vote for Clinton. Remember, your state’s Electoral College votes are winner-take-all (except in Nebraska and Maine). Don’t let Trump grab the whole basketful.

But if you’re in a “safe” state, where the winner is inevitable, I urge you to vote for your favorite third-party candidate. The Republicans and Democrats will probably remain in power for many years to come, but especially in this election, a vote for the Libertarian or Green candidate is not wasted. You want change in the major parties? How do you think they’ll react if they lose 20% of the popular vote to third parties? This isn’t an unrealistic goal.

Johnson

The news media have settled on the amusing narrative of Gary Johnson as the stoner who can’t remember “What’s Aleppo?” Fine, maybe he’s not the most articulate spokesperson the Libertarian Party has ever had. And if you’re a dedicated libertarian anarchist, he won’t pass your purity test.

But Johnson gets the concept of liberty, to a much greater degree than any other candidate. Check out his issues page. And he has relevant experience as former Governor of New Mexico (1995-2003). I’d rather see Johnson as President than any of the other candidates. For one thing, he’d be a lot more mellow.

Stein

The Green Party and Jill Stein have good intentions, I think. They recognize that there is an economic ruling class that has acquired a lot of its wealth and power by unethical means (something that the Libertarian Party really ought to say more about).

However, they want to fix this problem by handing yet more power to the political ruling class. Yes, they call it a Power to the People Plan, but socialism never works out that way in practice.

I disagree with quite a lot of what Stein proposes, but if you were a Bernie Sanders supporter, you might like her.

 

Many of you will object to my recommendations, so I’ll try to respond in advance. But first, I’d like to say a few words in praise of gridlock.

Gridlock saves us from the most extreme and partisan plans of both major parties. No legislation can get signed without compromise. This is a good thing. A tied-up government is a safer government.

There is virtually no chance of a Democrat-controlled House of Representatives after this election. The Senate is more iffy, but there’s a fair likelihood it will also remain in Republican control. This means we will be much safer with a Democrat in the White House.

“I can’t vote for Clinton because she’s a criminal.”

She probably is. Trump probably is, too. But what I’m discussing here is tactical voting — trying to get the least-bad result from this mess. And even if she’s elected, she can still be impeached. Republicans will be working 24/7 to find clear and convincing evidence for impeachment proceedings. I’ll actually be surprised if the House doesn’t vote to impeach her at some point.

But if you really can’t vote for Clinton, I think your vote will have more long-term impact if you give it to Johnson or Stein.

“I can’t vote for Clinton because she will appoint a flaming liberal to the Supreme Court.”

No she won’t. There’s no way for a nominee to get through the Senate confirmation process without bipartisan support. It only takes 41 out of the 100 senators to prolong a filibuster indefinitely.

“I actually like Trump’s proposals.”

Well, I can’t argue with that, but I do encourage you to look again. Trump supporters seem to be inspired by a vision of America as it was 60 years ago — and that vision is a fairy tale. But even if the fairy tale could come true, Trump’s plans for getting from here to there are wrongheaded. Patriotic Americans of 60 years ago would, I believe, reject Trump. The same should be true for patriotic Americans today.

“A vote for a third-party candidate is wasted.”

No, but one of the third-party candidates is wasted.

No, it’s really not, and especially not in this election. For the first time in many years, third-party candidates are likely to get a noticeable percentage of the vote. Think of this as a referendum on which direction you want the major parties to move — because they will notice that percentage, and try to attract those voters in the future.

“Government is inherently immoral, and it isn’t made moral by majority vote. I won’t participate in this. I don’t need a President.”

You’re gonna get a President anyway.

Look, I sympathize with this, strongly. For many years I followed this philosophy, and refused to vote for the lesser of two (or three or more) evils. I still do this in elections where all the candidates seem equally bad.

That’s not the situation in this Presidential election. One outcome is way worse than all the others. And that’s why I’m writing about tactical voting.

“Elections are a joke. The voters have no real control.”

A bully, armed with a baseball bat, gives you a twig to defend yourself. Do you throw the twig on the ground, or do you try to poke him in the eye with it?

“I can’t vote for Johnson. I agree with most of what he stands for, but he supports X, and that’s a deal-breaker.”

And Trump is better how exactly? We don’t even know what Trump supports from one month to the next. He will support or oppose anything if he thinks it’s in his political or financial interest. (Yes, ditto for Clinton.)

“What’s the big deal with ‘liberty’?”

Such an antique word, isn’t it? Is it obsolete? Is it just the name of a statue?

Let me quote a few more antique words:

Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable Rights; that among these, are Life, Liberty, and the pursuit of Happiness; that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

The ground of liberty is to be gained by inches, that we must be contented to secure what we can get from time to time, and eternally press forward for what is yet to get. It takes time to persuade men to do even what is for their own good.

It was by the sober sense of our citizens that we were safely and steadily conducted from monarchy to republicanism, and it is by the same agency alone we can be kept from falling back.

Thomas Jefferson was an imperfect human being, with an incomplete view of some important liberties for which, in his time, few were pressing forward. Yet he and the other founders set personal liberty as the foundation of our country and its government. We have built on this foundation by inches over the last 240 years. And the results have been pretty good. But we still have a long way to go, and we’re continuously at risk of falling back.

You really want to make America great again? Look past the slogans, the scandals, the lies, and the outrage, and focus on liberty.

Seattle can prohibit carrying a kitchen knife, but swords might be OK

Arganagh Posted on January 2, 2016 by

Here’s a superficial article explaining a recent Washington State Supreme Court decision:

Seattle PI, 12/31/15: High court: No constitutional right to carry a knife in Seattle

Upholding a city of Seattle ban, the Washington state Supreme Court has ruled that there is no constitutional right to carry a knife.

Writing for the majority, Justice Charles Wiggins said neither the state constitution nor the Second Amendment of the U.S. Constitution block the city law against carrying knives. The 5-4 split decision enables local restrictions against knives that likely could not be extended to firearms.

“While almost any common object may be used as a weapon, that does not necessarily mean that possession of otherwise innocuous objects that could be wielded with malice will trigger the constitutional protections afforded to ‘arms,’” Wiggins said in the majority opinion. …

The article is accurate as far as it goes. Wayne Evans was pulled over for speeding in Seattle, admitted to the officer that he had a sheathed paring knife, and was arrested. Seattle bans the carry of all fixed-blade knives, plus all knives with a blade longer than 3½ inches. Evans appealed his conviction on 2nd Amendment grounds, and lost, because paring knives are not “arms”.

But this omits several important points. For the details, you need to read the actual Supreme Court decision:

City of Seattle v. Evans (Majority and Dissent)

Evans lost this appeal because he was unable to prove (to the satisfaction of a majority of the justices) that his paring knife was an “arm” in the 2nd Amendment sense. The majority opinion states:

…We hold that the right to bear arms protects instruments that are designed as weapons traditionally or commonly used by law abiding citizens for the lawful purpose of self-defense. …

The four dissenting justices said, basically, that’s a stupid argument, because obviously all sorts of knives have been traditionally or commonly used for self-defense, so they’re all protected by the 2nd Amendment. Unfortunately, they didn’t persuade a fifth justice to agree with them.

So, basically, Evans lost because his knife was too little.

The majority opinion makes this clear in a footnote:

…many knives banned under the Seattle ordinance may be arms deserving constitutional protection. … In a different case under appropriate facts, the ordinance’s “broad prohibition” on carrying arms for purposes of self-defense may well be constitutionally infirm. … We reserve judgment on this issue for an appropriate case.

Evans’ appeal had another flaw: he failed to argue that the Seattle ordinance was unconstitutionally broad or vague. The majority notes this in another footnote:

…Amicus curiae Washington Association of Criminal Defense Lawyers newly raises the contention that the ordinance is unconstitutionally vague and thus violates the due process clause of the Fourteenth Amendment and Washington Constitution, article I, section 3. But Evans never argued that the ordinance was vague, too broad, or improperly sweeps within its prohibitions innocuous objects like tools. This court “will not address arguments raised only by amicus.”…

So, although the knife ordinance remains on the books for now, the majority has provided a roadmap for challenging its constitutionality on two grounds.