The larger problem is a Supreme Court majority unmoored from any notion of American history. On September 14, 2005, Senator Coburn asked Judge John Roberts in his
confirmation hearings whether judges who cite foreign law should be
impeached. Roberts answered that he thought citation of foreign law was
"not a good approach," And now we have Roberts citing foreign law in a most consequential case. Britain is not only a foreign country but one that was specifically repudiated in the Declaration of Independence. Impeachment is a paper tiger and we have almost total legislative paralysis that seem unlikely to end anytime soon.
It's always interesting to see self-described conservatives who profess to believe in "originalism" and "judicial restraint" struggle when the constitution doesn't say what they wish it did. Maybe you should focus on what y'all call "chain migration" instead, another supposed evil. Two of Don's three wives were immigrants, and one, Melania, used "chain migration" to slip her folks into our country:).
This lifelong conservative welcomes all three of them. You?
In the United States, we operate under English Common Law. We might omit the first word in the term at times, but that is what it is. The exception of course is in Louisiana, which our friend Stanley so articulately reminds us.
The point is the chief justice cited English common law incorrectly. For example, Jews were English denizens since mid 1650s due to Oliver Cromwell. However, they only gained citizenship rights in the mid 1850s. So obviously, religious loyalty was a critical factor in determining citizenship in England.
All in England were subjects, not citizens. English Jews were subjects of the Crown both before and after Jewish emancipation. Only in recent years have the British even moved to start using the term citizenship.
Yawn. English kings could arrogate anyone as subjects they could lay their hands on. Whether in England, in colonies, or pressed into Navy service. Gypsies too.* Everyone knows that. That's exactly not the point. Ask a Jamaican slave in the 18th century how he felt about being King George III's subject.
In addition to being subjects (ie one step-up from slaves), the English common law knew several layers of rights. That is the point, because no-one is interested about whether Jamaican slaves were subjects - it's about having rights. And in having rights, there is a major difference in British 14th-19th century law between being a denizen and a citizen.
* That's why the legislators of the 14th amendment were discussing Gypsies.
Increasingly, the Left rejects the "creedal nation" idea as well. They would say we already have a "choice and consent" model: people choose to show up, and the natives consent to conferring citizenship when they are naturalized. What, exactly, does Oren want to add to this model? He says Congress needs the authority to set the rules, but is ready to start the Amendment process before Congress has even attempted to do so. What kind of absurdity is that?
American citizenship has always been nebulous; until the Civil War, we were essentially citizens of our states not Washington DC. The model worked due to our homogeneity: mostly Euro-Protestants. As our cultural (and theological) diversity has increased, this model is increasingly strained. But let us not begin a Constitutional Amendment process whose outcome is almost certain to fail without at least attempting the legislative fix the Court suggested.
There's no downside. If you can't get 60 votes for a bill to codify citizenship rights and obligations, you'll never get 67 for an Amendment.
I haven't read this commentary yet, but I surely plan to. I'm watching Trump's speech right now on voting security, and I'm wondering what's wrong with him. Why is he ranting about voter fraud? He lost in 2020. Is it time to start thinking about the 25th amendment?
One of Donald Trump's flaws is that he can not admit failure. He can never be wrong. In Trump's mind, the 2020 election must have been stolen because there is simply no way he could have lost. That would make him a loser, and Donald Trump knows that he isn't a loser. His need to relitigate this is psychologically deep.
In inability to admit mistakes is a horrible trait in a leader. It's tempting to wish Trump didn't have these traits and behaved less like a petulant 5 year old, but someone less narcissistic could never stand up to the onslaught of the entire elite establishment of the Western world for 10+ years. So it's kind of package deal.
More importantly, never once have I said, "gee, I really wish we had President Kamala instead."
So you are just fine with the unprecedented corruption and self dealing? Pay to Play Pardon system? Masked men executing people in the streets? Only allowing white South Africans to immigrate? Just moral rot.
Typical. I write 2 paragraphs explaining why I think Trump is a flawed leader but perhaps the one we need right now, and how much of my support for him was because of the total lunacy of the Democratic Party... and you respond with: "so you're fine with killing babies, right!"
Don’t remember typing killing babies… can you point to where I wrote anything remotely like that? Funny you didn’t mention the things I actually did note.
Well put, Brian. I don't think anyone else could have pulled us out of terrible trade deals or pushed back against globalization as strongly as Trump. For that alone, we're in debt to him. I support his tariffs, too. We need more manufacturing in the United States. Globalization was the worst mistake America ever made.
But now, Trump is starting to get on my nerves, Tax cuts for the rich while cutting back on food stamps and medical insurance for the poor, not signing that fair housing bill, which would have given Republicans something big to campaign on in the midterms, saying earlier that affordability is a hoax when he won because of affordability...
I was embarrassed last night watching him give that speech, but you're right, never once have I wished that Kamala Harris had won the election.
Yeah, kind of where I am too. Which means we'll both be really sick of him by 2028. And that, unfortunately, doesn't bode well for Vance or Rubio, either of whom could pick up the anti-globalization crusade without nearly as much baggage.
Oren raises some interesting points, notably the risks of a Chinese Fifth Column, and the Creedal Liberals defending a Blood-and-Soil Citizenship vs. Blood-and-Soil Conservatives advocating for a Creedal Citizenship. However, I think no discussion of the 14th Amendment and the rightness of Birthright Citizenship can be complete without placing it in the context of the prejudice that necessitated the 14th Amendment in the first place as well as the long history of tension between welcoming and discriminating against immigrants. As someone who rejects xenophobia but also rejects open borders, it is unfortunate that the immigration debate has become all or nothing. However, I think it is incumbent upon those who argue for less immigration to explain how restrictions won't just be weaponized by the xenophobic to reject the tired, poor, huddled masses yearning to be free. That explanation is missing here.
It's quaint that Oren is nervous over a court decision that merely maintains a status quo that's been in place since the 1800's. He says "what we have lost is our citizenship". Apparently birthright citizenship is the culprit. Such a crisis.
This is such an unserious piece. Not a word about the masked federal agents in tactical gear currently roaming our streets in unmarked cars, killing innocent people (including US citizens), and chasing brown people to deport in a quest to hit their daily quota. The cruelty being carried out in our name, by our government, is beyond comprehension. And yet, establishment elites like Oren stay silent. Complicit. Welcome to the "new" right.
I note Oren invokes JD as his lodestar on immigration issues. JD, the purveyor of the Haitian pet eating lies. The man who joined Stephen Miller in lies that immediately characterized Alex Pretti, without evidence, as a "domestic terrorist", an "assassin" who "tried to murder federal law enforcement". This after Pretti was shot 10 times, starting in his back, by masked federal agents who had already disarmed him. We all watched the video. Then we listened to our government lie to us. Shockingly, we've yet to see a federal investigation into an incident the medical examiner determined was a homicide. The government hasn't even identified the masked/frightened agents who plugged our fellow citizen 10 times. Imagine your local police-professionals who are actually adequately trained and operating in good faith, acting in such a manner.
This is the Trump/Vance/Cass America I guess, what an agenda to be proud of. Roaming death squads. I sure hope I'm on the feds good guy list... Given that I'm a white heterosexual male of German/French/English extraction, I suspect I'm a member of the "new" rights "in" crowd. Yippee.
At some point, Don will catch up with the number of deportations conducted during the Obama administration. Funny thing is, Obama didn't pursue his deportations via performative cruelty and violence, and he focused on the criminals Don promised to focus on, until he didn't. Time to speak up Oren, or, do you too think Pretti was an assassin who deserved to die...
Did you ever notice how every comment you make is something along the lines of "why aren't you talking about Outrage of the Week"? All of them. There's a formulaic dismissal of the actual subject matter of the article as unworthy of attention and then the next Demand To Disavow. Please, a little variety.
Trust me, I've noticed. I happen to think there's more at stake than esoteric debates among establishment elites who are more concerned with staying in good graces with the regime than speaking the truth. Country over party.
Trump complains about Chinese birth tourism but every Chinese birth tourist has a visa issued by Donald J. Trump. If Chinese birth tourism exists, it is because Trump is allowing it. But he would be the last to accept responsibility for his own actions.
Soil-based birthright citizenship was NOT English common law. It's just desinformation spread by the chief justice to vacate Trump's executive order. If birthright were common law, Jews who were denizens in England since 1650s due to Oliver Cromwell would have been English citizens in 1753, 100 years later. They were not. Hence, English parliament introduced a 1753 law allowing naturalization of some wealthy, native born Jews due to a private act of parliament (!) in 1753. This permission was rescinded in 1754 after a huge antisemitic outcry.
So obviously, citizenship in England was contingent on religious loyalty - which it remained until around 1850s. By the way, religious loyalty was still a critical condition to election for any state office-holder in New Hampshire till 1877.
"According to conventional wisdom, pursuing a constitutional amendment is quixotic at best. How could two-thirds of the House, two-thirds of the Senate, and three-quarters of the states agree on anything?"
I agree that the best path is constitutional amendment. Many European countries (+ Aus/NZ) had something approaching BRC and changed it in the past few decades precisely because it was abusive. If this is impossible to do in the US, then we have Robert Jackson's suicide pact level problems.
The constitution is designed to be amended and many of the founders argued exactly that. We mock the Arab world for the "one man, one vote, one time" phenomenon, but we have "one constitution, one time" which is almost as bad and poisons politics with the fights over judges and interpreting 250 y/o documents.
From the Jefferson Memorial, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors."
The technology exists to track everyone of these tourist births. Pick an age, say 18, and send a notice that there is no record of them registering for the draft or paying federal taxes. Demand financial disclosure and tax dollars for income earned overseas. Also tell them that failure to comply will result in an arrest warrant issued that will be executed by customs should they ever attempt to re-enter the US. Then publicize this new law and watch birth tourism evaporate. Why would the CCP support the process if they new everyone of their sleeper cell moles would be arrested at the border....just a thought.
Thank you for your thoughtful article. Question: a Chinese or Muslim mother comes to America to give birth (to a boy) then returns to her home country to raise her child in that country's environment . Eighteen years later, the US resurrects a military draft. As an now- American citizen, that young man would be draft eligible. If drafted, would we insist that he come to th US and serve in our military? What if the conflict is with the country where he grew up?
The larger problem is a Supreme Court majority unmoored from any notion of American history. On September 14, 2005, Senator Coburn asked Judge John Roberts in his
confirmation hearings whether judges who cite foreign law should be
impeached. Roberts answered that he thought citation of foreign law was
"not a good approach," And now we have Roberts citing foreign law in a most consequential case. Britain is not only a foreign country but one that was specifically repudiated in the Declaration of Independence. Impeachment is a paper tiger and we have almost total legislative paralysis that seem unlikely to end anytime soon.
It's always interesting to see self-described conservatives who profess to believe in "originalism" and "judicial restraint" struggle when the constitution doesn't say what they wish it did. Maybe you should focus on what y'all call "chain migration" instead, another supposed evil. Two of Don's three wives were immigrants, and one, Melania, used "chain migration" to slip her folks into our country:).
This lifelong conservative welcomes all three of them. You?
In the United States, we operate under English Common Law. We might omit the first word in the term at times, but that is what it is. The exception of course is in Louisiana, which our friend Stanley so articulately reminds us.
The point is the chief justice cited English common law incorrectly. For example, Jews were English denizens since mid 1650s due to Oliver Cromwell. However, they only gained citizenship rights in the mid 1850s. So obviously, religious loyalty was a critical factor in determining citizenship in England.
All in England were subjects, not citizens. English Jews were subjects of the Crown both before and after Jewish emancipation. Only in recent years have the British even moved to start using the term citizenship.
Yawn. English kings could arrogate anyone as subjects they could lay their hands on. Whether in England, in colonies, or pressed into Navy service. Gypsies too.* Everyone knows that. That's exactly not the point. Ask a Jamaican slave in the 18th century how he felt about being King George III's subject.
In addition to being subjects (ie one step-up from slaves), the English common law knew several layers of rights. That is the point, because no-one is interested about whether Jamaican slaves were subjects - it's about having rights. And in having rights, there is a major difference in British 14th-19th century law between being a denizen and a citizen.
* That's why the legislators of the 14th amendment were discussing Gypsies.
There was a major difference because there was no concept of "citizenship" at the time.
Modern citizenship and denizenship are concets from the at least 14th century. You can look up in wikipedia.
Increasingly, the Left rejects the "creedal nation" idea as well. They would say we already have a "choice and consent" model: people choose to show up, and the natives consent to conferring citizenship when they are naturalized. What, exactly, does Oren want to add to this model? He says Congress needs the authority to set the rules, but is ready to start the Amendment process before Congress has even attempted to do so. What kind of absurdity is that?
American citizenship has always been nebulous; until the Civil War, we were essentially citizens of our states not Washington DC. The model worked due to our homogeneity: mostly Euro-Protestants. As our cultural (and theological) diversity has increased, this model is increasingly strained. But let us not begin a Constitutional Amendment process whose outcome is almost certain to fail without at least attempting the legislative fix the Court suggested.
There's no downside. If you can't get 60 votes for a bill to codify citizenship rights and obligations, you'll never get 67 for an Amendment.
I haven't read this commentary yet, but I surely plan to. I'm watching Trump's speech right now on voting security, and I'm wondering what's wrong with him. Why is he ranting about voter fraud? He lost in 2020. Is it time to start thinking about the 25th amendment?
One of Donald Trump's flaws is that he can not admit failure. He can never be wrong. In Trump's mind, the 2020 election must have been stolen because there is simply no way he could have lost. That would make him a loser, and Donald Trump knows that he isn't a loser. His need to relitigate this is psychologically deep.
In inability to admit mistakes is a horrible trait in a leader. It's tempting to wish Trump didn't have these traits and behaved less like a petulant 5 year old, but someone less narcissistic could never stand up to the onslaught of the entire elite establishment of the Western world for 10+ years. So it's kind of package deal.
More importantly, never once have I said, "gee, I really wish we had President Kamala instead."
So you are just fine with the unprecedented corruption and self dealing? Pay to Play Pardon system? Masked men executing people in the streets? Only allowing white South Africans to immigrate? Just moral rot.
Typical. I write 2 paragraphs explaining why I think Trump is a flawed leader but perhaps the one we need right now, and how much of my support for him was because of the total lunacy of the Democratic Party... and you respond with: "so you're fine with killing babies, right!"
TDS man.
Don’t remember typing killing babies… can you point to where I wrote anything remotely like that? Funny you didn’t mention the things I actually did note.
Well put, Brian. I don't think anyone else could have pulled us out of terrible trade deals or pushed back against globalization as strongly as Trump. For that alone, we're in debt to him. I support his tariffs, too. We need more manufacturing in the United States. Globalization was the worst mistake America ever made.
But now, Trump is starting to get on my nerves, Tax cuts for the rich while cutting back on food stamps and medical insurance for the poor, not signing that fair housing bill, which would have given Republicans something big to campaign on in the midterms, saying earlier that affordability is a hoax when he won because of affordability...
I was embarrassed last night watching him give that speech, but you're right, never once have I wished that Kamala Harris had won the election.
Yeah, kind of where I am too. Which means we'll both be really sick of him by 2028. And that, unfortunately, doesn't bode well for Vance or Rubio, either of whom could pick up the anti-globalization crusade without nearly as much baggage.
Oren raises some interesting points, notably the risks of a Chinese Fifth Column, and the Creedal Liberals defending a Blood-and-Soil Citizenship vs. Blood-and-Soil Conservatives advocating for a Creedal Citizenship. However, I think no discussion of the 14th Amendment and the rightness of Birthright Citizenship can be complete without placing it in the context of the prejudice that necessitated the 14th Amendment in the first place as well as the long history of tension between welcoming and discriminating against immigrants. As someone who rejects xenophobia but also rejects open borders, it is unfortunate that the immigration debate has become all or nothing. However, I think it is incumbent upon those who argue for less immigration to explain how restrictions won't just be weaponized by the xenophobic to reject the tired, poor, huddled masses yearning to be free. That explanation is missing here.
We COULD change the Constitution, but why?
It's quaint that Oren is nervous over a court decision that merely maintains a status quo that's been in place since the 1800's. He says "what we have lost is our citizenship". Apparently birthright citizenship is the culprit. Such a crisis.
This is such an unserious piece. Not a word about the masked federal agents in tactical gear currently roaming our streets in unmarked cars, killing innocent people (including US citizens), and chasing brown people to deport in a quest to hit their daily quota. The cruelty being carried out in our name, by our government, is beyond comprehension. And yet, establishment elites like Oren stay silent. Complicit. Welcome to the "new" right.
I note Oren invokes JD as his lodestar on immigration issues. JD, the purveyor of the Haitian pet eating lies. The man who joined Stephen Miller in lies that immediately characterized Alex Pretti, without evidence, as a "domestic terrorist", an "assassin" who "tried to murder federal law enforcement". This after Pretti was shot 10 times, starting in his back, by masked federal agents who had already disarmed him. We all watched the video. Then we listened to our government lie to us. Shockingly, we've yet to see a federal investigation into an incident the medical examiner determined was a homicide. The government hasn't even identified the masked/frightened agents who plugged our fellow citizen 10 times. Imagine your local police-professionals who are actually adequately trained and operating in good faith, acting in such a manner.
This is the Trump/Vance/Cass America I guess, what an agenda to be proud of. Roaming death squads. I sure hope I'm on the feds good guy list... Given that I'm a white heterosexual male of German/French/English extraction, I suspect I'm a member of the "new" rights "in" crowd. Yippee.
At some point, Don will catch up with the number of deportations conducted during the Obama administration. Funny thing is, Obama didn't pursue his deportations via performative cruelty and violence, and he focused on the criminals Don promised to focus on, until he didn't. Time to speak up Oren, or, do you too think Pretti was an assassin who deserved to die...
Did you ever notice how every comment you make is something along the lines of "why aren't you talking about Outrage of the Week"? All of them. There's a formulaic dismissal of the actual subject matter of the article as unworthy of attention and then the next Demand To Disavow. Please, a little variety.
Trust me, I've noticed. I happen to think there's more at stake than esoteric debates among establishment elites who are more concerned with staying in good graces with the regime than speaking the truth. Country over party.
Besides, you know I'm right:).
Who inherits America? The highest bidder of course.
Trump complains about Chinese birth tourism but every Chinese birth tourist has a visa issued by Donald J. Trump. If Chinese birth tourism exists, it is because Trump is allowing it. But he would be the last to accept responsibility for his own actions.
Soil-based birthright citizenship was NOT English common law. It's just desinformation spread by the chief justice to vacate Trump's executive order. If birthright were common law, Jews who were denizens in England since 1650s due to Oliver Cromwell would have been English citizens in 1753, 100 years later. They were not. Hence, English parliament introduced a 1753 law allowing naturalization of some wealthy, native born Jews due to a private act of parliament (!) in 1753. This permission was rescinded in 1754 after a huge antisemitic outcry.
So obviously, citizenship in England was contingent on religious loyalty - which it remained until around 1850s. By the way, religious loyalty was still a critical condition to election for any state office-holder in New Hampshire till 1877.
"According to conventional wisdom, pursuing a constitutional amendment is quixotic at best. How could two-thirds of the House, two-thirds of the Senate, and three-quarters of the states agree on anything?"
I agree that the best path is constitutional amendment. Many European countries (+ Aus/NZ) had something approaching BRC and changed it in the past few decades precisely because it was abusive. If this is impossible to do in the US, then we have Robert Jackson's suicide pact level problems.
The constitution is designed to be amended and many of the founders argued exactly that. We mock the Arab world for the "one man, one vote, one time" phenomenon, but we have "one constitution, one time" which is almost as bad and poisons politics with the fights over judges and interpreting 250 y/o documents.
From the Jefferson Memorial, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors."
The technology exists to track everyone of these tourist births. Pick an age, say 18, and send a notice that there is no record of them registering for the draft or paying federal taxes. Demand financial disclosure and tax dollars for income earned overseas. Also tell them that failure to comply will result in an arrest warrant issued that will be executed by customs should they ever attempt to re-enter the US. Then publicize this new law and watch birth tourism evaporate. Why would the CCP support the process if they new everyone of their sleeper cell moles would be arrested at the border....just a thought.
Dick Minnis
removingthecataract.substack.com
Thank you for your thoughtful article. Question: a Chinese or Muslim mother comes to America to give birth (to a boy) then returns to her home country to raise her child in that country's environment . Eighteen years later, the US resurrects a military draft. As an now- American citizen, that young man would be draft eligible. If drafted, would we insist that he come to th US and serve in our military? What if the conflict is with the country where he grew up?