Category Archives: The Constitution

One More Atrocity from the Supreme Court

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Today the SCOTUS issued a decision that will allow public school coaches and teachers to bully and intimidate students into participating in prayers against their will. This is what passes for “freedom of religion” in the imperium per iudices of the United States.

I wrote about Kennedy v. Bremerton School District in April, when the Court heard the case. See SCOTUS, Culture Warriors, and School Prayer for background.

The majority opinion was written by Justice Gorsuch, and Ian Millhiser writes at Vox that Gorsuch misrepresented the facts of the case. (This is the pattern with this Court; if the facts don’t support how you want to rule, then change the facts.)

Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer. …

… In the real case that was actually before the Supreme Court, Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.

After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”

See A coach coerced students to pray, and the Supreme Court just said it was OK by Paul Peterson, father of four former Bremerton High School students.

It’s not the job of coaches or teachers to lead schoolchildren in prayer or coerce them, whether explicitly or implicitly, to join in religious activities. Students and their families, not public school employees, get to decide their religious practices and beliefs. Religious indoctrination is not the instruction that I or the parents I know want the public school involved in.

Well, yes. The issue was never that the coach was seen saying prayers on the 50 yard line; it was that team members were coerced into joining the prayers. And some of the players felt uncomfortable with this, because the prayers didn’t reflect their religious views.

“There is no indication in the record,” Gorsuch wrote, “that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue and that led to his suspension.” Perhaps the Justice overlooked the amicus brief joined by parents like Paul Peterson, who felt that Kennedy’s prayers were coercive and out of bounds. Mark Joseph Stern reported,

The plaintiff’s lawyers insist that he was fired from his job as a football coach for engaging in “quiet, private prayer” at the 50-yard line after games. The extensive record developed in the district court tells a different story. It demonstrates that Kennedy formed prayer circles with team members after each game, leading the students in audible Christian prayer while in the midst of his formal duties. When the school district asked him to pray privately instead, he claimed he had been persecuted for his religious exercise.

Kennedy hired far-right lawyers who threatened legal action against the school district, transforming the postgame ritual into a media spectacle. Eventually, students began racing onto the field to join the prayer circle, creating a 500-person stampede that injured multiple people. Put simply, there was nothing “quiet” or “private” about Kennedy’s proselytization. (Also, he wasn’t fired; he was placed on paid leave.)

Not every member of the football team shared their coach’s Christian faith. But virtually all of them felt compelled to participate. Team members later explained that praying with Kennedy was “expected.” The coach even encouraged his own players to recruit their opponents and their coaches into the prayer circle. Some students joined in only because they feared they “wouldn’t get to play as much” if they declined, or because “they did not wish to separate themselves from the team.”

One member of the football team during Kennedy’s tenure, who came forward under a pseudonym for fear of retaliation, attested that he refused to bow his head because Kennedy’s prayers did not align with his own beliefs. He was then “persecuted” for failing to conform, treated poorly by the coaches and permitted to play only because of his talent on the field. The experience still haunts him, as well as others who felt queasy about the indoctrination they faced at school. These players, the student said, “would rather forget about that time of their life.”

Kennedy hired far-right lawyers who threatened legal action against the school district, transforming the postgame ritual into a media spectacle. Eventually, students began racing onto the field to join the prayer circle, creating a 500-person stampede that injured multiple people. Put simply, there was nothing “quiet” or “private” about Kennedy’s proselytization. (Also, he wasn’t fired; he was placed on paid leave.)

Not every member of the football team shared their coach’s Christian faith. But virtually all of them felt compelled to participate. Team members later explained that praying with Kennedy was “expected.” The coach even encouraged his own players to recruit their opponents and their coaches into the prayer circle. Some students joined in only because they feared they “wouldn’t get to play as much” if they declined, or because “they did not wish to separate themselves from the team.”

Christian nationalism, here we come.

The Electoral College: Its Hour Come Round at Last?

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It’s enormously unlikely that the current Russian hacker flap is going to stop Donald Trump from being inaugurated, but if he is stopped, it’s my understanding it can only happen in the Electoral College. So let’s take a look.

Why Is There an Electoral College? The Founders were opposed to electing presidents by popular national vote, mostly because they figured each state would just vote for its own “favorite son.” They considered having presidents chosen by Congress or by state legislatures. They finally settled on Electors, however, who were supposed to be really smart guys who would choose a president based purely on merit, and without consideration of partisan politics.

The best sense of what the Founders were thinking might be gleaned from Alexander Hamilton’s Federalist #68, in which he expounds in his overwritten way that

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

Hamilton goes on to explain that each state would somehow choose a committee of electors who would convene only once, for one purpose only, and that is to choose a president. In this way this crew would be less subject to being bribed or being under the influence of foreign powers.

The Constitution didn’t specify how the states chose their Electors. I understand that, at first, most of the time they were chosen by state legislatures.

How Was the Electoral College Supposed to Function? In the original wording in the Constitution, Electors were to vote for two people, at least one of whom was not from his state. Then as now, the Electors don’t meet in one place, but within their own states, to vote. The votes were sent in a sealed envelope to the President of the Senate (who would be the sitting Vice President). The votes were to be counted in front of the Senate and House of Representatives. In brief, whoever got the most votes was POTUS and whoever came in second was VPOTUS.

Well, that didn’t last long.  The 12th Amendment, ratified in 1804, provides that Electors vote separately for a president and a vice president. It also provides that if no one candidate receives a majority of all votes (currently the magic 270 number), the House of Representatives chooses the POTUS from among the top three contenders, and the Senate chooses the VPOTUS.

Other than the original provision of voting for one person not from their states, the Constitution places no restrictions on the Electors about whom they can vote for, other than the qualification requirements:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

One little archaic constitutional vestige I did not know — to this day, an Elector cannot vote for a president and vice presidential candidate from his own state. One candidate is okay, but not both. So if both the presidential and vice presidential candidates were from Pennsylvania, for example, the Pennsylvania Electors would have to abstain.

And that’s where the U.S. Constitution stands on the matter of the Electors and choosing a president.

The Electoral College Today. Today,  of course, people vote for presidential candidates, and then Electors go through the motions of choosing the POTUS as outlined in the 12th Amendment. That way of doing things evolved pretty quickly in the 19th century, rendering the Electoral College vote into a meaningless, archaic ritual. Lots of amendments have been proposed to get rid of the Electoral College. Obviously, none have gotten very far.

The Electors are chosen by the parties, usually in state party conventions. Some are chosen by state party central committees. A handful of states use other methods — they are appointed by the governor, for example, or even appointed by the presidential nominee him- or herself. The point is that they are people chosen not for their wisdom, but for their loyalty to the party.

There are two aspects of today’s Electoral College that are problematic.

One is the “winner take all” method of choosing Electors that all but two states have adopted. This is not in the Constitution at all, and it’s this factor that makes it mathematically possible for one candidate to have a respectable popular vote majority and still lose the Electoral College. If the Electors were chosen in a proportional way, that’s much less likely to happen. Lawrence Lessig has been arguing that the “winner take all” thing is unconstitutional. However, his argument is based on the Court’s “reasoning” in Bush v. Gore, and there are those who don’t buy it.

Still, while we may be stuck with the Electoral College itself — the less populated states like it, because it gives them a disproportional voice in presidential elections — if someday the winner-take-all practice could be done away with, the Electoral College would more accurately reflect the popular vote.

The other “new” aspect is the binding of the Elector’s votes. Twenty-nine states have made it a felony for an Elector to go rogue and not vote according to his state’s vote. In practice, such “faithless” Electors are very rare and are usually only given a small fine, but they could be penalized more harshly.

Over the years, many constitutional scholars have said that the state “binding” laws are blatantly unconstitutional, and that the Electors must be free to vote as they choose. It was clearly the intent of the guys who wrote the Constitution for the Electors, not the people by popular vote, to choose the president. And while we may think that’s stupid, it hasn’t been amended. The Constitution still says that.

And it was also the clear intent of the guys who wrote the Constitution for the Electoral College to be a bulwark against “cabal, intrigue, and corruption,” as Hamilton put it:

These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

This is the very corruption that the Electoral College is supposed to prevent. The masses of the people may be swayed by passions fired up by demagogues, but the wise and level-headed Electors are supposed to be the ones who make the final decision. Or that’s how the Founding Guys imagined it would work, anyway.

If there was ever a time for the Electors to carry out their Constitutional duties and make their own choice for POTUS, this would be it. And if they don’t, then the Electoral College really has utterly failed in the duty it was given.

Blocking Trump wouldn’t necessarily give the election to Hillary Clinton, since the Electors can vote for anybody. If enough of them voted in a way that denied the majority to Donald Trump — say, by choosing Gary Johnson –  the election would go to the House. The House must choose among the three top vote getters. And since we’re talking about the House, that wouldn’t be Clinton. But maybe it wouldn’t be Trump, either.

(For an interesting take on what a mess that could turn out to be, see “Deadlock: What Happens If Nobody Wins” by Laurence H. Tribe and Thomas M. Rollins, from the October 1980 Atlantic.)

I’m hearing a lot of talk on social media that maybe a court could void the election. Courts have voided Senate elections a couple of times, apparently. But I don’t think any court would touch this mess with a thousand-foot pole, especially since the Constitution provides for the Electors or the House to make the final decision in the case of presidents. (And there is no provision whatsoever for re-doing an election, for any reason, which is another rumor I saw somewhere. )

The Electoral College vote is scheduled for Monday, December 19. Chances are Trump will at least get his 270 votes and be inaugurated. But we can dream …

Appeals Court Reinstates Same-Sex Marriage Bans

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Yesterday a federal appeals court in Cincinnati reversed lower-court decisions that voided same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

I believe this is the first genuine break in the streak of court decisions that have struck down same-sex marriage bans. Just yesterday I ran into a list of 22 states in which either federal courts or state supreme courts had voided such bans. The site Freedom to Marry keeps an updated account of where marriage equality stands in the states. Same-sex marriage currently is legal in 32 states, and courts had cleared the way for marriage equality in several other states.

Lyle Denniston at SCOTUSblog has the most detailed account of yesterday’s decision, by the Sixth Circuit Court of Appeals, I’ve seen so far. The primary difference between yesterday’s decisions and the previous ones is that the Sixth Circuit upheld the states’ sovereignty on matters of marriage, and said federal courts had no bearing to countermand a state decision on marriage. The Sixth also said there is no right to marry. And this sets up an interesting contrast in legal thought.

As I understand it, some of the judges who have struck down the bans view marriage as a right of U.S. citizens that states cannot infringe. Others (see especially Judge Richard Poster’s very readable argument) basically say that the states’ reasons for banning same-sex marriage are irrational and blatantly discriminatory. Judge Posner wrote,

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

The Sixth Circuit decision directly disagrees with Posner on some points. Posner said that “tradition” per se carries no weight, that delaying to change laws because there may be some unforeseen bad consequence to the law is not a valid excuse, and that there is no evidence children are harmed by being raised by same-sex parents. The Sixth apparently disagrees with all of those points, saying the states have a legitimate role in protecting children and that states have a right to “wait and see’ what happens elsewhere before enacting a change themselves. Also unlike Posner, the Sixth denied there was any evidence the law was based on animus to homosexuals.

Of course not. And jokes involving the President and watermelons are not racist. Sure.

Lyle Denniston writes that the Sixth also denies that homosexuals are a “discrete class deserving of special constitutional protection as historic targets of discrimination.”

The most obviously flimsy part of this decision is that it also denies that states have any obligation to recognize same-sex marriages of other states, which seems to me to fly right in the face of the Full Faith and Credit clause of Article IV Section 1.

Several articles today say that this decision almost certainly sets up a Supreme Court test. Justice Ruth Bader Ginsburg had already said awhile back that if the Sixth upheld the bans, bring it on, dudes. Well, not those exact words. How the Court might decide is uncertain, especially after the U.S. v. Windsor decision that struck down the Defense of Marriage Act (5-4, Usual Suspects with Kennedy swinging toward the liberals). I can see Justice Roberts having to decide which outcome would stir up the bigger hornets’ nest.

Update: Kenneth Jost, an adjunct professor of law at Georgetwon, rips the Sixth Circuit Court’s decision apart, and says the badly argued decision may prove to be a “blessing in disguise” for advocates of marriage equality.

Texas vs. the First Amendment

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Once again demonstrating they don’t know the Bill of Rights from Longhorn Pie, the state of Texas has approved this vanity plate design:

Of course, to be in constitutional compliance Texas would have to offer plates for people who are not Christian. I’m betting a few live in Texas. I’m proposing the following designs:

Of course, actually putting one of the alternative plates on one’s car would no doubt incite some born-again yahoo to slash one’s tires.

To Texas’s credit, it nixed a Confederate flag plate proposed by the Sons of Confederate Veterans. I understand the Sons are suing.

The New and Exceptional Chosen People

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Poor Ezra said something sensible on television, and naturally he is being pilloried for it. You’ve probably heard that the incoming Republican majority plans to require that every new bill introduced from now on must cite which article in the Constitution authorizes whatever it is the bill proposes to do.

A couple of days ago Ezra pointed out that the individual mandate section of the health care reform bill actually cites case law supporting its constitutionality, and that this hasn’t made a dent in the wingnuts’ opinion that it is unconstitutional. He added,

To presume that people writing what they think the Constitution means — or, in some cases, want to think it means — at the bottom of every bill will change how they legislate doesn’t demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe.

In reality, the tea party — like most everyone else — is less interested in living by the Constitution than in deciding what it means to live by the Constitution. When the constitutional disclaimers at the bottom of bills suit them, they’ll respect them. When they don’t — as we’ve seen in the case of the individual mandate — they won’t.

This is exactly right. However, this is being done to appease the teabaggers, and the teabaggers are not going to be appeased by citations of case law. They will want to see exactly where the Founding Fathers said it was all right to, for example, regulate food safety or protect endangered species.

The way many of them appear to interpret the Constitution, if the text doesn’t enumerate that very specific thing by name — say, hiring air traffic controllers — it’s unconstitutional. The fact that this would make most of the legislation passed in the past 233 years unconstitutional apparently hasn’t sunk in.

And what’s really likely to happen is that legislation will be so hopelessly snarled up in fantastical constitutional arguments that little will ever get to a floor vote. The only other possibility is that the citation will become a meaningless formality that no one takes seriously. I don’t see a middle ground there.

I already wrote a few days ago why it is blatantly insane to limit the Constitution that way. I’d add to that the teabaggers treat the Constitution as if it were dictated by God, and not written by a bunch of 18th-century men who intended it to be a basic outline of government processes and structures that future generations could use to govern themselves.

The other frightening thing about the teabaggers is their inability to understand that the document is pretty vague about a lot of things, and over the years many intelligent and patriotic people of good character have disagreed with each other over precisely what every clause means. To teabaggers, their interpretation is the only correct one — even though most of them have no better understanding of the Constitution than they do of quantum physics — and any deviation from their interpretation is not a mere disagreement, but sedition.

Then Ezra gave a television interview in which he said that the constitutional citations in the legislation would not be binding — for example, a law could still be challenged in court and declared unconstitutional, no matter what the citation says. Were that no so, it would be a rather large breach of the constitution’s separation of powers. See above about quantum physics.

Naturally, the wingnuts are now claiming that Ezra said the Constitution itself is not binding, which is not at all what he said. Which begs the question — if they can’t understand clear 21st-century English, how is it they claim to have perfect understanding of sometimes archaic 18th-century English?

Which takes me to the next point, which is that language is very dynamic and the meanings of words and phrases do change over time. That’s why it’s important to have some understanding of, for example, English common law as it existed in the late 18th century in order to appreciate what the authors of the Constitution meant. Often the particular phrase they chose was understood to mean a specific thing in the legal language of their time, and the way most 21st century readers would interpret the same phrase is entirely different.

Naturally, the usual mouth-breathers are hooting at Ezra for saying the Constitution is impossible to understand because it is old.

Which brings me to my larger point, which is that somehow in the minds of many, America and American history are somehow an extension of the Bible. The Constitution is the Fifth Gospel, and Americans are the new Chosen People. Religious faith and patriotism are seamlessly and inextricably woven together. No good can come of this.

Elsewhere — no pardon for Billy the Kid.

The Irony of McDonald v. Chicago

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I defer to Scott Lemieux’s legal analysis of McDonald v. Chicago, the gun rights decision handed down by SCOTUS today. I’m not going to quote it here; just read the whole thing, and then come back.

From a liberal perspective, any act of SCOTUS that dismantles the 19th century Slaughterhouse decision and rules that the 14th Amendment applies to the states ain’t a bad thing. This is the same legal principle on which most of the great civil rights decisions of the 20th century were based. I believe most if not all of the decisions that have ever caused wingnuts to scream about the awfulness of liberal judicial activism were tied somehow to the 14th Amendment forcing states to observe the rights of U.S. citizens.

Brown v. Board of Education, which desegregated public schools, rested on the equal protection clause of the 14th Amendment. Scott says the majority opinion in McDonald cites the due process clause of the 14th, which also is a critical part of Roe v. Wade and all of the cases that decided public schools should not be leading prayers in classrooms, such as Abington School District v. Schempp.

In other words, exactly the same part of the Constitution that allowed legal abortion and threw classroom prayers out of public schools has now been cited in a way that probably will overturn a whole lot of state and local gun control ordinances, and righties are dancing in the streets.

Given the Heller decision (see also this), I think McDonald is no big surprise. But while I appreciate the legal foundation of the decision the result — which will be to dismantle a lot of gun control ordinances, mostly in urban areas — worries me. And, frankly, I think it ought to worry the NRA as well.

Contrary to wingnut lore, there is not a huge public sentiment in favor of dismantling gun control laws. According to polls, recent and going back a few years, the enormous majority of the public either thinks gun control laws should be left as they are now (42 percent, according to an April CBS/New York Times poll), or made more strict (40 percent, same poll). So, per this poll, 82 percent of the public thinks gun control laws should be left as they are or made stricter, compared to 16 percent who want gun laws to be less strict. An October Gallup poll had nearly the same result.

It’s true that when the poll questions are framed in terms of gun rights rather than gun control, the numbers are somewhat more favorable to the NRA position. But I think this is the result of people reacting to the word “rights” — we’re always in favor of “rights” — without thinking through logical consequences. In other words, there are people who favor gun rights in the abstract, but they also want gun control in their neighborhoods.

And it is possible that if the NRA gets too aggressive about dismantling gun control laws, especially in large urban areas, the day may come when people start to think long and hard about amending the Second Amendment. That may be many years down the road, and I may not live to see it, but I think it could happen.

Update: Steve M on why the gun control war will never be over. And it isn’t because the gun control movement won’t quit. The gun control movement pretty much faded out of view several years ago, except in the fevered hallucinations of the NRA.

And that’s not just because they won’t consider America to be anything less than a fascist dictatorship until it’s as easy for virtually anyone to buy a gun in D.C., Chicago, or New York City as it is in, say, rural Mississippi. Even if the day comes when we have gun laws everywhere that are as loose as the loosest ones now (and I think that’s far more likely over the next couple of decades than ever passing any laws anywhere that actually tighten gun access), the gunners still won’t admit they’ve won.

They can’t. As I say here all the time, the belief that right-wingers are the perpetual victims of liberal fascism is a core element of their self-image. What’s more, believing this is what opens up wingers’ wallets and keeps groups like the NRA and Gun Owners of America — as well as every other right-wing organization that seeks small contributions — well funded and healthy.

In politics there is no hand so good it can’t be overplayed, I say.

The Constitutional Anchor Baby Crisis

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A few days ago Rand Paul expounded on the “anchor baby” crisis. Anchor babies are, of course, babies born in the U.S. to illegal immigrants. The babies are citizens by virtue of their birth, and this infuriates righties. In recent years Republican lawmakers have been promoting a bill that would deny citizenship to such babies. Mind you, this is coming from some of the same people who want to extend citizenship to frozen embryos.

Yesterday, in an entirely different context, Jeffrey Goldberg quoted the Babylonian Talmud: “Who is wise? The one who can foresee consequences.” That may become my new favorite saying. Applied to the citizenship question — like it or not, the 14th Amendment gave us a clear, bright line regarding citizenship:

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.

I can see all kinds of unfortunate consequences of making that clear, bright line fuzzier and darker. Leave well enough alone, I say.

Now, most legal experts say that because of the 14th Amendment, Congress does not have the power to deny citizenship to so-called “anchor babies.” Doing this would require a constitutional amendment. But righties are arguing no, because the 14th Amendment doesn’t say what it says. This argument was presented by none other than George Will a few days ago, and it is a tortured argument, indeed. But when I read Will’s column I didn’t have the time to research what he was saying to see if it could hold mayonnaise, never mind water.

But lo, yesterday, while researching something else entirely, I ran into a discussion of United States v. Wong Kim Ark, 169 U.S. 649 (1898) (see also Wikipedia discussion of Wong). Wong Kim Ark was a man born in the United States of ethnic Chinese parents. At the time, the Chinese Exclusion Act was in effect. You probably remember that this barred anyone of the Chinese “race” from entering the U.S., and it denied citizenship to ethnic Chinese people already in the U.S. Wong challenged this law, and in a 6-2 decision the Supreme Court agreed with Wong, and said he was a citizen of the United States by virtue of being born here. And it seems to me there’s a made-for-television movie script in there somewhere.

Anyway, as I read about the Wong decision I realized that the dissenting argument in the Wong case is exactly the same argument being made today by Will and the Republican lawmakers.

The dissent was based on an interpretation of the phrase “subject to the jurisdiction thereof.” Will and the two SCOTUS dissenters (John Harlan and Melville Fuller) say this phrase means “and not subject to any foreign power.” In their dissent of Wong, Harlan and Fuller point out that native Americans were (at the time) not citizens of the U.S. because the Civil Rights Act of 1866 had given citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”

This act became law just two months before the 14th Amendment was proposed. So, the argument is, this wording gives us insight into where lawmakers’ heads were at the time. And thus, if the parents are subjects of a foreign power, then their baby born in the U.S. is not eligible for citizenship. This was the dissenting opinion in Wong in 1898, and Will repeated this same argument in his Washington Post column. Will doesn’t bother discussing that pesky Wong majority opinion, however.

Will argues further,

What was this [the jurisdiction phrase] intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.

As far as I know, the Chinese Exclusion Act was the first attempt to render any sort of immigration illegal, and it didn’t become law until 1882. Congress had passed an earlier version of the exclusion act in 1878, but this was vetoed by President Hayes. But the Wong majority decision says plainly that an act of Congress making Chinese immigration illegal, and denying citizenship status to ethnic Chinese, did not override the clear language of the 14th Amendment.

So, whether Will and the Republican lawmakers like it or not, SCOTUS already nixed their argument.

The majority opinion in Wong is based partly on English common law, which said that babies born in England are English, with the exception of the children of diplomats and children born to hostile forces occupying English territory.

In addition, at the time native American tribes were not considered subject to U.S. jurisdiction and were therefore not citizens. Another case decided in 1884 (Elk v. Wilkins, 112 U.S. 94) had declared that a native American who left his tribe and went to live in a white community didn’t automatically get citizenship, although he could be considered a citizen if he went through whatever naturalization process existed at the time and paid taxes.

Will leans heavily on the example of non-citizen native Americans to argue that the 14th Amendment was not intended to confer citizenship to babies of foreigners who happened to be in the U.S. at the time. But the Elk decision (which Will doesn’t mention, either) did not consider Indian tribes to be foreign states. A tribe was an alien political entity which Congress dealt with through treaties, but not the same thing as a foreign nation.

So, it seems to me the Wong decision — the majority opinion, anyway — more closely speaks to the circumstance of babies born in the U.S. to illegal immigrants than does the Elk decision. And I think I just blew by nerd blogging quotient for the day.

Update: Read more about Wong Kim Ark in “The Progeny of Citizen Wong.”

That Pesky 4th Amendment

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A U.S. District Judge just ruled that the Bush Administration illegally spied on an Islamic charity.

U.S. District Judge Vaughn Walker said attorneys for the Al-Haramain Islamic Foundation, once based in Oregon, could pursue civil remedies for being subjected to warrantless domestic surveillance under an anti-terrorism program put into place by the Bush administration after the Sept. 11, 2001, attacks on the U.S.

But you know what righties will say — we have to burn our freedoms to save them. Or something.

Update: More info in the New York Times —

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers who were representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said that the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its warrantless surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

We’re All State-Created Entities?

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Someone in a comment suggested that we non-libertarians are ignorant and we should educate ourselves by reading the Volokh Conspiracy, a well-known blog you’ve probably heard of. So I went over there to see what the brilliant Volokh Crew had to say about the recent Citizens United case regarding the free speech rights of corporations.

So here it is, and IMO the whole thing is a tortured exercise in stacking one straw man argument on top of another, beginning with the title, “Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?”

One especially remarkable part of the argument (See subhead 3, Nearly Everyone and Everything is Probably a “State-Created Entity.”) says,

Even individual citizens might be considered “state-created” entities under this logic. After all, the status of “citizen” is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. — the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, “citizens” are no less “state-created” entities than corporations are.

First, in theory, the government IS the people, and the House at least is supposed to BE the people, the citizens, sitting in representation, and when Congress votes to set up a program like Social Security, this is really the people through their government making something to improve the quality of their lives, not government “giving” them something. And in my mind setting up a government program to benefit people is not the same thing as conferring a “right.”

Anyway, as I understand it the argument boils down to this: if the status of citizen were taken away a person would still exist, and if the status of corporation were taken away a business would still exist. Therefore, a corporation is just like a citizen.

To which one commenter asked, “does my marriage have the right to free speech beyond the individual rights my wife and I possess?” Another asked, “Do you believe that corporations have a right to vote in state and federal elections?” (Which echoed something Justice Stevens said in his Citizens United dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”)

A corporation by definition is an entity separate and distinct from its members. The corporation as a corporation can do things like enter into contracts and pay taxes, and these obligations are separate from the personal obligations of the members. So when you are talking about a corporation doing something, you are not talking about its members acting through a corporation. You are saying the corporation itself is doing it.

As I understand it, the essential legal question underlying Citizens United is whether a corporation itself enjoy the status of “person” under the 14th Amendment? The question is not whether the individual members of a corporation may be deprived of free speech rights because they are acting through a corporation.

The crew at Volokh and Reason seem both to be ignoring this, and instead are saying that individuals are being deprived of their free speech rights because their use of a corporation for purposes of free speech is restricted. But that is not really the legal issue at the heart of the case. And, anyway, government makes all sorts of restrictions on means of communication, from licensing of broadcast bands to public nuisance laws that don’t let me blast my political opinions from a super-duper megaphone to my entire neighborhood 24/7. Not that I want to do that.

Another argument they are making is that if corporations can be “censored” in political campaigns, wouldn’t that overturn free speech cases involving media corporations, such as New York Times v. Sullivan? But the Sullivan case was not about government-imposed restrictions on the newspaper’s speech, but about the newspapers’ liability in a civil suit. And since the First Amendment specifically protects freedom of the press, seems to me the press itself enjoys a particular protection no matter who owns it. But again, that’s not the real issue.

The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. But because a corporation somehow has gained the status of “person,” the corporation itself can claim 14th Amendment protection of its rights. Again, this has nothing whatsoever to do with who owns the corporation or the rights of the members.

This I Don’t Understand

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The CIA is closing its “black op” prison sites, so that’s good. But the Obama Administration is trying to keep the power to imprison terrorism suspects for extended periods without judicial oversight.

There are some things the Administration is doing with which I disagree, but nevertheless I sorta kinda see why they’re doing what they’re doing. But this I don’t understand.