Tim Russert apparently thinks it's hypocritical to believe it's sometimes a good idea to make them.
« DC Schools | Main | Rocking the Boat »
Constitutional Amendments
31 Dec 2007 03:19 pm
Comments (38)
It is going to be really difficult to prosecute illegal drug dealers if their not under U.S. jurisdiction...
P, sorry, that was supposed to mean drug dealers who are illegal immigrants. But yeah, Paul wants to legalise anyway...
Anthony, read this: http://en.wikipedia.org/wiki/Citizenship_Clause
Apparently it's not as clear-cut as you think.
it confers citizenship upon those born in the U.S. and subject to its jurisdiction.
And, as the 1898 judgement in Wong Kim Ark makes clear, the 'jurisdiction' exception is based upon categories with long precedent -- the children of diplomats and the children of an occupying army -- and those specific to the US, namely tribal sovereignty.
Now, I'm sure that our little wolf-crier for the insurgencia will be along soon enough, but we'll see if he can deal with Plyler vs. Doe:
no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.
Trying to tweak the language 14th amendment to redefine 'subject to the jurisdiction thereof' just won't do. If Paul wants rid of ius soli, then he'll need an entirely new form of words.
(Not that this makes Russert any less of a tuber, but that's a given.)
Thanks pseudonymous. Plyler vs. Doe seems to make the case pretty unambiguously. Paul thinks being "pro-Constitution" means perusing it one day and knowing absolutely nothing about precedent--a huge part of constitutional meaning--and interpretation. Magically, "constitutional" meshes with everything Paul and the Paulites want.
Apparently it's not as clear-cut as you think.
Apart from a century-old precedent that hasn't come close to legislative or judicial challenge, you mean.
Anthony: the more telling line is--
In the early years, it was never interpreted that way
Meaning 'it was never interpreted that way while Congress legislated to prevent the children of Chinese immigrants from becoming citizens, until a Chinese immigrant went to the Supreme Court.'
(Actually, meaning a bit more than that, with Elk vs. Wilkins, which addresses a specific question of Native American citizenship.)
There's nothing wrong with Paul wanting to amend ius soli out of the constitution. Just repeal the citizenship clause and replace it with something like 'Congress shall have power to establish a uniform rule of Citizenship', after the Article I power over naturalization.
Though that wouldn't necessarily be keeping with Paul's minimalist credentials.
Apart from a century-old precedent that hasn't come close to legislative or judicial challenge, you mean.
Well, yeah, and that's pretty much what Paul's saying in that interview. Personally, I don't have an opinion on the issue itself, but obviously it's one of those where reasonable people can disagree. I think the indian tribes exception is somewhat of an analogy.
Pseudonymous--yeah, the "it was never interpreted that way" line seems to be a typical "go to" for those who want to make constitutional arguments without thinking about it too much or understanding the mechanisms by which we as a society determine what the constitution "means." As you can tell, Paul claiming the "constitutional" mantle really gets on my nerves. He's also said that gold and silver are the only currencies mentioned in the constitution, failing to understand the context in which they're mentioned (which is, I believe, restrictions on which currencies *the states* can mint). O well.
"Well, yeah, and that's pretty much what Paul's saying in that interview."
In the context of Paul's other statements, it seems more that he is saying that the 14th amendment, as well as a lot of other things, have been almost willfully misiterpreted/ignored, but no one has the courage to say so. I find this a dangerous line of argument that gives credence to the "we support the constitution, society has been taken over by usurpers" line spouted by o so many of his supporters.
Where in the constitution is the authority for judicial review? I always though the constitution was written in plain language so you wouldn't need judges with legal degrees to define what it means.
Anyway, Russert is jumping to an untenable conclusion. Wanting to amend the constitution to make changes out of the realm of the constitution is exactly what the country was founded and thrived on. In the last few generations it has become fashionable for the government to assume such broad powers outside of its authority without proving the overwhelming support that the amendment process demands.
"I always though the constitution was written in plain language so you wouldn't need judges with legal degrees to define what it means."
Due process, cruel and unusual, etc., are all constitutional terms that require some kind of review and consensus to determine their meaning. Often, laws are passed whose constitutionality is unclear; in deciding constitutionality, courts also establish precedent for what the constitution may be taken to mean. See the framers on the role of the Supreme Court and judiciary.
Anthony, no, he says it's "confusing", and I agree. In the case of the indian tribes the litmus test seems to be whether they as a group pay federal taxes or not. One might argue that the illegal immigrants are in the same basic category with the tribes that don't pay the taxes. I mean, we can't solve it here, obviously, it's a matter of fine lawyering and what he wants is unambiguous clarification. Doesn't sound crazy to me.
I always though the constitution was written in plain language so you wouldn't need judges with legal degrees to define what it means.
Really? Where did you get that idea? Is it stated in the constitution?
I find this a dangerous line of argument that gives credence to the "we support the constitution, society has been taken over by usurpers" line spouted by o so many of his supporters.
This, I think, is an important point.
What, exactly, differentiates Paul from the 'Constitution in Exile' types, and/or the Federalist Society? We've seen what FedSoc members do in judicial or executive positions -- party like it's 1865.
I'm open to Paul supporters (or FedSoc types, for that matter) setting out the differences. But I've yet to hear them explained. If Paul's essentially pushing the constitution-in-exile line, then that sets him alongside a much less, um, fashionable crowd of reactionary lawyers.
for example, in deciding what "unreasonable" means in "unreasonable searches and seizures," courts establish what constitutional rights people have. You and the policeman next door may both understand the simple language of "unreasonable" but have very different understandings of what that means, hence, judicial interpretation of the constitution. It's not a transparent window into meaning on all laws or issues that may arise.
"Anthony, no, he says it's "confusing", and I agree."
This requires regarding his asking whether an illegal drug dealer is subject to U.S. jurisdiction as nothing more than an innocent question. I see it as a more rhetorical question, that is, he is pretty sure that they're not.
Illegal immigrants pay federal tax.
I mean, we can't solve it here, obviously, it's a matter of fine lawyering and what he wants is unambiguous clarification.
Except, he doesn't: he wants to tweak with the definition of 'subject to the jurisdiction thereof', which is more fine lawyering.
Like I said, if you want rid of birthright citizenship, you strike out the clause and put the power to legislate entirely in Congress's hands: you don't try to finesse on the existing language, because that's going to run slap-bang into a pile of precedent.
(Of course, should the balance of the Supreme Court change, we may find all manner of definitions miraculously changing to an 'original meaning' with no precedent.)
Magically, "constitutional" meshes with everything Paul and the Paulites want.
Well, yeah.
I mean, come on, let's be honest--the concept of constitutionality is just something we use to bless the policies we like and condemn the ones we don't. It's not like Ron Paul is the only political--or person!--to be guilty of this.
Hmm, I'm not an expert, but I suspect that while the illegal immigrants may or may not be incidentally paying some taxes, they certainly are not paying them in their own names, as they simply don't exist in the system. They are undocumented, there are no federal records with their names, and therefore there are no taxes.
he wants to tweak with the definition of 'subject to the jurisdiction thereof'
where did you get that, it's not in this interview. He only says he wants an "amendment to clarify it". There are many different way to clarify, to list all the possible combinations of the parents' legal statuses, for example.
"where did you get that, it's not in this interview. He only says he wants an "amendment to clarify it". There are many different way to clarify, to list all the possible combinations of the parents' legal statuses, for example."
When he speculates that the children of illegal immigrant drug dealers (a gratuitous smear, by the way) may not be subject to U.S. jurisdiction, he is tweaking the definition in place since the cases cited by pseudonymous.
Again, he says that the "jurisdiction" thing is confusing and he wants to clarify the issue by an amendment. It doesn't mean that he wants to tweak the definition of 'subject to the jurisdiction'.
OK, I'm not a lawyer, what do I know.
"Magically, "constitutional" meshes with everything Paul and the Paulites want.
Well, yeah."
Well, no. There are parts of the Constitution, as amended, that I think are rather foolish, and I doubt I'm alone among Paul supporters. The dominant opinion, I think, is summed up by this old bon mot: "The Constitution has it's problems, sure, but it's better than what we have now."
The rest of the world, including the UK, has gotten rid of jus soli as dangerous and unfair to the dupe nations that offered it until recently. Ireland was one of the last, ended in part because of the uproar of discovery that a jumbo jet of Nigerians on a tourist visa were all pregnant women out for instant Irish citizenship and EU status for themselves, their spawn on Irish soil and their extended families.
My wife was born in Mexico to US parents on a religious mission. Can we own Mexican property, go and work for the Mexican gov't or in certain business sectors like hotel owners or other benefits? No, because she was just an American born in Mexico with no citizenship rights...
Conferring instant citizenship on the spawn of illegal mass invaders or even citizenship perks for kids and through them parents here legally whose native countries do not reciprocate for childbirths of American parents there in the same circumstances (almost none do in these modern times but a few 3rd World shitholes where citizenship means little in entitlements and benefits).
Here it means free school, free medical care, continued right to work and other benefits as immunity from deportation of the spawners w/o extensive legal proceedings even after their visas or refugee status or work permits expire.
Right now, the Amending process is broken. No controversial Amendment can pass thanks to the filibuster and American regions like the South vetoing Amendments. The last controversial one passed 45 years ago - the elimination of poll taxes - and even that one took 15 years of debate and heavy arm-twisting.
The simplest way to go is to get a Congressional Law or ruling and see if it passes court review on people outside legal status or only under US jurisdiction as temporary guests (tourist or work visa holders, illegals relatives, refugees).
Wong Kim Ark was narrow. It applied only to children of legal Chinese immigrants here on permanent resident status but barred from citizenship by legislation.
abb1, not bothering to let the fact that he doesn't know what he's talking about since, after all, he read a wikipedia article, said, "I'm not an expert, but I suspect that while the illegal immigrants may or may not be incidentally paying some taxes, they certainly are not paying them in their own names, as they simply don't exist in the system. They are undocumented, there are no federal records with their names, and therefore there are no taxes."
But this isn't true- many illegal immigrants do, and often have, paid federal income taxes under their own names. They may apply for a Individual Tax-payer Number and use that for filing federal income taxes and may even get returns if they qualify. Why would they do this? Because such payment of taxes has been used in the past to establish residency and good character for so-called "amnesty" programs and other legalization methods. It was purposed to be used in the future as well. While it's unlikely that a majority of illegal immigrants pay federal taxes under their own names (quite a few pay them under other people's names!) it is the case that quite a few do do this via the ITN method. Furthermore, the system is set up to be independent of immigration enforcement and generally seems to work well that way.
It's also pretty clear that, given well settled precedent that no serious person thinks is in doubt that Paul is wrong about birthright citizenship. It's true that you'd have to read more than a wikipedia article to know that, but anyone who knows the literature on the subject knows this.
Not to mention federal taxes withheld from their pay checks.
The only thing narrow in Wong Kim Ark is its construing of exceptions to jurisdiction, and thus citizenship.
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."These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.
(here)
One could, I suppose, declare illegal immigrants to be a hostile occupying army, as is already the fantasy of serial blogwhore Wacko. That does, however, stretch credibility.
I do owe abb1 an apology, though: the amendment that Paul introduced in June isn't like Nathan Deal's idiotic bill, which tried to tweak 'jurisdiction' and got about two co-sponsors. It's pretty straightforward.
Ugh. Russert is really, really bad. Any member of the press who makes Ron Paul, ubernutcase look good with a pathetically failed "gotcha" attempt needs to be beaten with sticks.
And by "be beaten with sticks" I mean, at least in a case this ridiculous, "have a giant redwood fall over on him."
Re: Here it means free school, free medical care, continued right to work
Free schools? Well, yes. But when did the US enact universal healthcare for its citizenry? I must have been napping on that one I guess.
"It's pretty straightforward."
To be expected: Agree or disagree with him, Paul does tend to be quite straightforward, he's not an equivocator. It's one of the things I like about him: You always know where you stand with him.
"But when did the US enact universal healthcare for its citizenry? I must have been napping on that one I guess."
About the time the US made it illegal for an emergency room to refuse treatment to people who show up with medical emergencies, even if they can't pay for it. Granted, it's not particularly comprehensive universal healthcare, but it does qualify as such.
Re: About the time the US made it illegal for an emergency room to refuse treatment to people who show up with medical emergencies, even if they can't pay for it.
Guess what: that only applies to emergenices (and only until the ER can stablilze the patient) and even then it is aboslutely NOT free! I invite you to show up at an ER for treatment and then stiff them on the bill. You will have collection agencies on your tail until the dust of your bones is subducted under the ocean as the North American continent is recycled by continental drift.
I like Russert more when he spouts avuncular homilies. No..wait. I hate that.
Why can't we find more media stars like Russert, Matthews, and Broder? You know, "real" Americans who tell us what "real" Americans think. Old Spice smelling manly men with giant codpieces in their flight suits who love apple pie and baseball and reading the Bible. Things like journalistic integrity and respect for the truth are really secondary. Did I say "secondary?" I meant non-existent.
Brett: I'll absolutely concur that Paul's proposed amendment is much more honest than previous legislative efforts. I don't take any position on this: if it ends ius soli, it will be through consensus. I'm only surprised that Paul wiggled about 'jurisdiction' in that recent interview, because it's the standard recourse of less able or principled lawmakers.
As I've said here before, I find Paul's campaign fascinating, because it's inherently nostalgic for a weaker presidency and looser federal government . I don't think you can get there -- the 1890s, really -- from here, but I also think it's refreshing to have a candidate who doesn't take the structural status quo for granted.
They may apply for a Individual Tax-payer Number and use that for filing federal income taxes and may even get returns if they qualify.
That's irrelevant. I was talking about jurisdiction and comparing them to the Indians whose tribes' status allows them not to pay taxes. I'm sure these Indians can pay taxes too if they feel like it, so what.
Cantor - perhaps Paul has some mistakes in his reading of the Constitution, but:
(a) Despite having problems with the current interpretation of the 14th amendment, he seems to be willing to use the amendment process to get his way, so it is not a big deal
(b) Whatever mistakes in interpretation he has in regards to the constitution, he is much more consistent in trying to read and follow the constitution than any other candidate.
Most liberals tend to be very emphatic about procedural rights and civil liberties, but much less so on issues involving property rights, freedom of political speech when it costs money, or on the natural limits on what the government can spend money on (e.g. they use the interstate commerce clause to justify the welfare state). Most conservatives, on the other hand, are better about property rights issues, but are bad on procedural issues (due process for criminal case defendants) or on limits to the power of the executive (see George W. Bush).
Paul is the only candidate whose positions on civil liberties issues and economic liberties issues are generally both based on the constitution and whose reading of the constitution is based more on what it says than on "how can I misread it to justify the policies I want?" The fact that the illegal immigrant issue may be an exception does not change the fact that he is actually more interested in the actual wording of the constitution than any other candidate.
"Most liberals tend to be very emphatic about procedural rights and civil liberties"
Oh, bunk. That's only true if you allow them to define "civil liberties", as Strossen notoriously did for the ACLU, as the liberties they feel like defending. If you define them objectively as the liberties guaranteed by the Constitution, liberals aren't any better on them than conservatives.
Heck, since the campaign 'reform' craze started, liberals tend not to even be any good on the 1st amendment, which used to be a strong point.
Right on! Who is out there defending the 3d Amendment these days?
We're not talking here about an Amendment the government doesn't generally violate only because it has the resources to pay for housing it's troops. (I say "generally" because the 3rd amendment does come up occasionally when the police want to use a private home for a stakeout, or so I understand anyway.) We're talking about Amendments that get violated on a daily basis, with the enthusiastic support of 'liberals', merely because they happen to not approve of the values those amendments embody.
Comments closed January 14, 2008.
| 
Heads in the Sand
Well, fair enough, but Russert may have been tapping into the annoyance that Paul makes insulting claims to be the "only Constitution candidate" and he really has a shaky grasp of the constitution and constitutional interpretation.
Re: the 14th amendment, Paul said:
"individuals are supposed to have birthright citizenship if they're under the jurisdiction of the government. And somebody who illegally comes in this country as a drug dealer, is he under the jurisdiction and their children deserve citizenship? "
1) Yes, an illegal drug dealer in the US is subject to its jurisdiction but 2)even if he weren't, it would be irrelevant. The 14th amendment speaks only about those who are born in the U.S.; the parents are irrelevant. It doesn't say "the children of people in category x and y shall be citizens," it confers citizenship upon those born in the U.S. and subject to its jurisdiction. Paul imagining that it applies a test on the parent to see if their children get citizenship--when the amendment is only about the children--is either a willful misreading or, as I suspect, evidence that he really doesn't know what he's talking about re: the constitution.
Remember in the last Iowa debate, he said that the other candidates should read the constitution, specifically the presidential oath of office; then he said that we're protected from foreign enemies, but not domestic ones. Apparently he labours under the misapprehension that the oath of office as written in the constitution pledges the president to protect the constitution against "all enemies foreign and domestic." It does not, as reading the constitution for 2 minutes reveals.
Ceding the "pro-Constitution" label to Paul and his selective, narrow, simplistic and often factually incorrect understanding of the constitution is highly annoying. There were better ways Russert could have brought that across.
Posted by Anthony Cantor | December 31, 2007 3:32 PM