Freespace

David Mayer on the right to earn a living

Prof. David Mayer of Capital University speaks about his new book, Liberty of Contract.

To liberals, respecting the Constitution is “attacking babies”

It’s awesome, the degree to which liberals, and many libertarians, are willing to speak—or weep and emote—about the issue of birthright citizenship, with what appears to be no understanding whatsoever about the legal issue involved. This is particularly the case with the effort now underway in Arizona and some other states to obtain a judicial determination of the meaning of the jurisdiction provision of section 1 of the Fourteenth Amendment. That Amendment makes citizens of all persons born in the United States “and subject to the jurisdiction thereof.”

The meaning of this phrase isn’t obvious, but one thing is obvious: it must mean something. That is to say, there must be some people born in the United States who are not automatically citizens of the United States. And although the Supreme Court determined a century ago that the children of foreigners who are legal, permanent residents in the United States are “subject to the jurisdiction thereof” and therefore are citizens, there is as yet no Supreme Court decision at all on whether the children of people who choose to enter the U.S. in violation of federal law qualify for citizenship under that phrase. There are a couple cases—Wong Kim Ark, and the Elk case, principally—and there’s some history (the debates over the ratification of the Fourteenth Amendment). But there’s no definitive answer, and it is entirely appropriate for any state—let alone one that is suffering a very significant influx of illegal immigrants—to seek a determination as to whether the Constitution does, in fact, grant birthright citizenship to the children of people who enter the country illegally.

But rather than debate the merits this perfectly reasonable, indeed, very important, legal question, liberals and libertarians are content to misrepresent the issue—describing this, for instance, as an effort to “repeal” birthright citizenship, or “deprive” people of birthright citizenship, or to “attack” the Fourteenth Amendment, or even, most absurdly of all, as an effort to “attack babies.” As though there is no serious legal issue here at all—just big old mean bullies picking on poor little innocent helpless babies. This is the standard of discourse among people who accuse their opponents of lacking civility!

The Constitution does not grant birthright citizenship to all persons who born in the boundaries of the U.S. It also requires that they be “subject to the jurisdiction thereof.” The Supreme Court has already said that this phrase excludes children born to Indian tribes on reservation land, as well as children born to the soldiers in an enemy army occupying American territory. Does it also exclude children of people who violate federal law to enter the U.S.? Maybe not, but it’s certainly a legitimate question to ask, and race-baiting demagoguery, or weepy emotionalistic grandstanding, are not appropriate ways to address the question.

Update: The Amendment does not say (or mean) "subject to the jurisdiction of the laws," since that is true of absolutely everyone, and would therefore render the phrase a meaningless redundancy in violation of basic rules of legal interpretation. The term "jurisdiction" in the Amendment means citizenship jurisdiction, as both the Congressional debates during the drafting of the Amendment and the Wong Kim Ark decision make clear. Citizenship jurisdiction is different than the mere obligation to obey domestic laws, which applies to non-citizen tourists and even enemy aliens. You don't prosecute foreign citizens for treason, for example, because not being subject to our citizenship jurisdiction, they can't commit treason, even though they can still be prosecuted for, say, espionage, because they're obligated to obey our legal jurisdiction. The difference between legal jurisdiction and citizenship jurisdiction is a very old one in this area of law.

Thomas Jefferson's beer

Starr Hill brewery is starting production on a beer based on Jefferson's ale recipe. Yards Brewery in Pennsylvania has long produced a similar Jefferson-style beer. But Jefferson was a wine drinker, not a beer drinker, and all my friends who have tried the Yards variety have found it unpalatable.

Nietzsche confronts Hitler (as told by Ricky Gervais)

Here's something that Stephen Hicks should enjoy.

Egypt off the air

Here's a technical explanation of how the Egyptian dictatorship has managed to cut off virtually all internet traffic. (I don't understand it.) HT:JW

Friday poem

High Flight
by Gillespie Magee

Oh! I have slipped the surly bonds of earth
And danced the skies on laughter-silvered wings;
Sunward I've climbed, and joined the tumbling mirth
Of sun-split clouds - and done a hundred things
You have not dreamed of - wheeled and soared and swung
High in the sunlit silence. Hov'ring there
I've chased the shouting wind along, and flung
My eager craft through footless halls of air.
Up, up the long delirious, burning blue,
I've topped the windswept heights with easy grace
Where never lark, or even eagle flew -
And, while with silent lifting mind I've trod
The high untresspassed sanctity of space,
Put out my hand and touched the face of God.

Challenger's 25th anniversary

January 28, 1986.

Chantecler on Wikipedia

As part of my current Edmond Rostand phase, I've written a Wikipedia page for his 1910 masterpiece, Chantecler.

Sad news again

Another rare kakapo has died. Only 120 left on earth.

How not to fight ObamaCare

The worst idea in opposing ObamaCare...at PLF Liberty Blog.