D.F. Mulder2018/11/02


A Nation Of [Ruinous] Laws

Trump’s bid to end birthright citizenship via executive order constitutes a really, really bad case of wishful thinking. That otherwise intelligent conservative commentators, like Ann Coulter, earnestly believe that Trump has a legal leg to stand on, is really unfortunate. They are setting the right up for a major disappointment should Trump head down this road to nowhere. The law is not on our side.

Granted, birthright citizenship is a disaster of epic proportions for America. The drafters of the 14th Amendment could not possibly have foreseen the “anchor baby” predicament modern America currently faces, or the ongoing mass-migration crisis currently confronting the Western World. Conservatives are one hundred and ten percent right that the 14th Amendment was drafted to address the the problem of black ex-slaves being denied citizenship and other essential rights by state governments. The problem, however, is that the 14th Amendment doesn’t address the historical context. Like most laws, it is just words on a page, clumsily drafted. The bleak reality is that the language of the 14th Amendment is both very broad and quite explicit.

The 14th Amendment reads: 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. Clearly anchor babies were born within the United States. So which words are righties clinging to in order to justify their position that the Constitution doesn’t guarantee citizenship to those born on American soil? The “jurisdiction” part from what I have gleaned. Basically, the argument is that anchor babies (or perhaps their parents?) are not subject to the jurisdiction of the United States. The problem is that this argument is total fucking nonsense. Indeed, Chief Justice John Marshall declared this argument to be absolutely and utterly devoid of merit as far back as 1812 (The Exchange v. Mcfaddon).

Minors residing on American soil are absolutely subject to the jurisdiction of American courts. So are their parents. Indeed, if they weren’t, we wouldn’t be able to prosecute killers like the killer of Kate Steinle, and the mad Marxist morons that populate the gigantic homeless camp known today as the state of California wouldn’t be able to acquit him either. It is hard to imagine that many in the “law and order” camp on the right would be genuinely happy if illegal aliens could do anything they pleased on American soil and never be held to account.

Under modern constitutional law, a state possesses personal jurisdiction over individuals who have minimum contacts with the forum state (International Shoe). Illegal aliens residing in particular states easily satisfy this minimum contacts requirement. The U.S. Federal Government also has sovereign control over its own national territory, and has exclusive subject matter jurisdiction over immigration law and immigration controversies. Thus, all immigrants who reside here, whether legal or illegal, are subject to the jurisdiction of the federal courts. That is the naked, cold reality of it.

However, if we consult the Constitutional case law on the subject, there are some wrinkles to thumb. In the Wong Kim Ark decision (1898), the case where the high court established the doctrine of Jus Soli in American law, the court grapples with this idea of “jurisdiction”. Some jurists were of the opinion that to be fully and truly subject to the jurisdiction of American courts you had to not be a subject of any foreign power. This position did not win the day, however. The court only recognized three exceptions to the automatic conferral of citizenship to those born on American soil: children of foreign diplomats or ministers, those born on foreign ships, and those born on U.S. soil during a hostile occupation of American territory. If Trump’s legal argument didn’t win the day one hundred and twenty years ago, it surely won’t win the day today.

Dicta in the case is also highly unfavorable to the view that only the children of legal residents become citizens upon birth here in America (Wong Kim Ark’s parents were legal residents, not illegal aliens, which is why the high court didn’t address this issue head-on.). Other desperate ploys, like Congress acting to withdraw jurisdiction for certain resident aliens, are also very unlikely to succeed. The actual legal impact of such a congressional fiat is extremely dubious. After all, it is really hard to see how Congress could carve illegal immigrants living on American soil or their native-born offspring out of jurisdictional reach. These are not Native Americans living in Native territories.

The birthright citizenship issue therefore presents to us a number of salient ironies. Righties really, really, really want the birthright citizenship clause repealed or fundamentally amended. And we should repeal it or amend it. It is a total, unmitigated disaster for America. I would trade my right testicle to Chuck Schumer to repeal or amend the 14th Amendment’s citizenship clause. However, just because you want something to be so, just because you really, really wish the Constitution didn’t do what it in fact does, doesn’t make it so. Righties can not repeal birthright citizenship by resorting to judicial activism and/or intellectual mendacity. The term “jurisdiction” has a well-developed meaning in American law besides.

It seems that many on the right are now in the ignominious business of distorting the plain text of the Constitution to yield results that seem highly desirable, given their political ideals. In other words, this issue is so important to many conservatives that it has exposed committed textualists for what they are, namely not really committed textualists, which, it should be noted, is fine with me, as I’m not a textualist myself. However, the point is that the facts of this particular problem have flipped the script. Thus, the supposed textualists (righties) must desperately rest their case on intentionalist interpretations (like the intent of the 14th Amendment was limited to addressing the ex-slave problem and should not be interpreted to apply to unlike cases a century and a half after the Amendment’s ratification) and the supposed intentionalists (lefties) are better off resting their case on the plain language of the Amendment, the interpretative paradigm of their political adversaries.

That is the first irony, but the second irony reveals to us a deeper lesson about the law. Western pundits are always arguing that the law is sacred, and they are always rambling on about how we are a “nation of laws” and all that jazz. And yet laws, even Constitutions, are drafted by mere mortals, sometimes utter dimwits. Laws can enslave as thoroughly as they liberate, and destroy as thoroughly as they create. Writing a sentence one way or another way could be enough to change the course of history. The long-term and even short-term implications of choosing one word over another can be vast. But how much power do we really want to grant to the drafters of such laws? Are we really willing to sacrifice the entirety of our civilization on the altar of law worship?

Laws are important, but they’re not all-important. I have always said that while it is important to be a nation of laws, a nation of only laws is a lost society indeed. Whether the right likes it or not, no amount of legal wrangling or text contorting can save us from the birthright citizenship clause of the 14th Amendment. The yankee imperialists who jammed that poorly worded Amendment down the throats of the peoples of the American South wrote that Amendment in the context of military triumph and vengefulness. They were not interested in being delicate or artful with the language of the Amendment. That pill was going down, with sugar or without. Today that crazy clause is driving America toward total ruin. There is a reason that unrestricted jus soli is so unpopular around the world, namely because it is an invitation to appalling abuse.

If there is any lesson to be taken from this article, it is that the law will not save us. If white Americans desire deliverance, if a warped sense of collective guilt drilled deeply into their psyches by their anti-asperistic Cultural Marxist overlords hasn’t yet persuaded a critical mass of them to commit collective suicide in pursuit of social justice, they’ll likely need another law, indeed another government altogether. Trump can not change the Constitution by executive order, nor can he win a court case before the high court by relying upon cockamamie theories such as the ones being put forth by Ann Coulter and other wishful-thinking legal scholars on the right. Not in America today, not on this issue.

Of course, maybe he should be able to. Maybe the Justices should allow Trump to do whatever the hell he wants and simply agree with whatever the hell he says when it comes to the issue of immigration. Maybe in this one case, on this one issue, the righties on the high court should abandon all pretense of intellectual honesty and just play by the left’s cardinal rule that if you agree with the policy, the Constitution permits it. Maybe on an issue of this magnitude it really is worth it. Nevertheless, you can rest assured that they won’t.

Finally, as to the issue of worshiping the law, it must be noted that the law itself is arguably the principal reason we are in the mess we’re in. We must remember that virtually all nations have laws. Even the Soviet Union had laws. Laws can be corrupted by selfish oligarchs to enserf the masses or co-opted by evil totalitarians to make the unthinkable thinkable. Simply following the law has led many a people to ruin.

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