Tuesday, October 30, 2018

Don't say I didn't warn you

Donald Trump is promising to sign an executive order to end birthright citizenship:

President Trump is vowing to sign an executive order that would seek to end the right to U.S. citizenship for children born in the United States to noncitizens, a move most legal experts say runs afoul of the Constitution.
I predict this back in July:

Ominous development #3: The Washington Post published an op-ed by a former Trump administration official arguing that birthright citizenship is a "historical and Constitutional absurdity" and should be abolished. To defend this position he has to argue, of course, that the Fourteenth Amendment doesn't actually mean what it plainly says, what the people who wrote it said it says, and what everyone has agreed for 150 years that it says. But we've known for a long time that those who travel in Trump's circle have no qualms about rewriting history.
I think there's a quietly hatched plot somewhere deep inside the vast right wing conspiracy to eviscerate the fourteenth amendment and expand the government's power to strip people of their citizenship beyond all historical precedent. It is, of course, all based on lies, but that is just a standard part of the right's play book. They have used this strategy very effectively to move the needle on gun rights and abortion, so there's no reason to believe it won't succeed on citizenship.
Emphasis added this time around.  I don't see any evidence that anyone on the left quite appreciates how serious this is.


16 comments:

Publius said...

That was Then, This is Now

@Ron
>that the Fourteenth Amendment doesn't actually mean what it plainly says, what the people who wrote it said it says, and what everyone has agreed for 150 years that it says.

How can you possibly object to that?

After all, it’s perfectly fine with you that the right to an abortion was declared by the Supreme Court after 184 years of it not being a right. That right was apparently discovered in Justice Blackmun’s ass, as it has no Constitutional basis.§

You’re also perfectly fine with the Court revising the definition of marriage, which predates the Constitution itself, and the Court invalidating several democratic votes affirming the traditional definition. Here the Fourteenth Amendment was found to mean more than what it says, and what everyone had agreed it said for 147 years, and did had been affirmed by several popular votes. Yet you’re fine with the Court overturning it.

Birthright citizenship, then, means what it says until it doesn’t anymore. This is a process you have previously endorsed (see above).

Also, are you aware of the two recent lifetime appointments to the Supreme Court?

——————-

§John Hart Ely, a supporter of legal abortion, complained that Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.” He wrote:

”What is unusual about Roe is that the liberty involved is accorded … a protection more stringent, I think it is fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-a-vis the interests that legislatively prevailed over it. And that, I believe … is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”

Ron said...

@Publius:

> That right was apparently discovered in Justice Blackmun’s ass

No, it was "discovered" in the Ninth Amendment. And six other Justices agreed with Blackmun.

You really should re-read the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, the Constitution specifically anticipates and flatly rejects the position that just because a right is not explicitly listed in the document that you do not in fact have that right. The founding fathers did know a thing or two about human nature.

> You’re also perfectly fine with the Court revising the definition of marriage

I'm perfectly fine with them redefining legal terms when the existing definitions result in the denial of equal protection under the law as guaranteed by the fourteenth amendment.

> Birthright citizenship, then, means what it says until it doesn’t anymore.

The difference is that birthright citizenship is defined in the Constitution itself. The Constitution, by definition, cannot be unconstitutional.

Ron said...

@Publius:

P.S. Have you ever actually read the Roe v. Wade decision? You really should.

https://caselaw.findlaw.com/us-supreme-court/410/113.html

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. [410 U.S. 113, 160]

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. 56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. 57 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. 58 As we have noted, the common law found greater significance in quickening."

Even Rhenquist's dissent concedes that the decision is well reasoned:

"The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent."

Publius said...

Judicial Fiat

@Ron:
>No, it was "discovered" in the Ninth Amendment. And six other Justices agreed with Blackmun.

You really should re-read the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, the Constitution specifically anticipates and flatly rejects the position that just because a right is not explicitly listed in the document that you do not in fact have that right. The founding fathers did know a thing or two about human nature.


Interesting, but irrelevant to Roe v. Wade. Justice Blackmun rejected the District Court invoking the Ninth Amendment. Justice Blackmun, instead, "found" the "right to privacy" under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion.

Six other Justices did agree with Blackmun, but that just tells us who is acting as a political agent on the court. Justices Stewart, Burger, and Douglas each wrote separate concurring opinions. Justice Stewart commented that he thought the doctrine of substantive due process was dead after the case of Ferguson v. Skrupa (1963), only to see it come back 2 years later in Griswald v. Connecticut, and now again, with Roe v. Wade. Justice Douglas writes in his concurrence that the "enactment is overbroad." Justice Burger, in his concurrence, would write, " Plainly, the Court today rejects any claim that the Constitution requires abortions on demand."

@Ron:
>Even Rhenquist's dissent concedes that the decision is well reasoned:

"The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it that invalidate the Texas statute in question, and therefore dissent."


Don't stop reading Rhenquist's dissent there, read on to find:

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. [Footnote 1] While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. [Footnote 3-2] Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and "has remained substantially unchanged to the present time."

Publius said...

Rhenquist's Dissent, continued

"There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

I have already quoted Yale law professor John Hart Ely, who wrote The Wages of Crying Wolf: A Comment on Roe v. Wade (1973). He summarizes that Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”

The judicial activism of Blackmun has resulted in nearly 50 years of conflict over the issue.

Publius said...

PBR Streetgang to Almighty, come in Almighty"

@Ron:
>I'm perfectly fine with them redefining legal terms when the existing definitions result in the denial of equal protection under the law as guaranteed by the fourteenth amendment.

Remember that, when a "redefining of legal terms" goes against what you think is right and just.

Obergfell v. Hodges (2015) is an abomination of a Supreme Court decision.

From Chief Justice Robert's dissent:
"Although the policy arguments for extending marriage
to same-sex couples may be compelling, the legal arguments
for requiring such an extension are not. The fundamental
right to marry does not include a right to make
a State change its definition of marriage. And a State’s
decision to maintain the meaning of marriage that has
persisted in every culture throughout human history can
hardly be called irrational. In short, our Constitution does
not enact any one theory of marriage. The people of a
State are free to expand marriage to include same-sex
couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step
of ordering every State to license and recognize same-sex
marriage. Many people will rejoice at this decision, and I
begrudge none their celebration. But for those who believe
in a government of laws, not of men, the majority’s approach
is deeply disheartening. Supporters of same-sex
marriage have achieved considerable success persuading
their fellow citizens—through the democratic process—to
adopt their view. That ends today. Five lawyers have
closed the debate and enacted their own vision of marriage
as a matter of constitutional law. Stealing this issue from
the people will for many cast a cloud over same-sex marriage,
making a dramatic social change that much more
difficult to accept."

Publius said...

Robert's Dissent, Continued; Scalia begins

"Understand well what this dissent is about: It is not
about whether, in my judgment, the institution of marriage
should be changed to include same-sex couples. It is
instead about whether, in our democratic republic, that
decision should rest with the people acting through their
elected representatives, or with five lawyers who happen
to hold commissions authorizing them to resolve legal
disputes according to law. The Constitution leaves no
doubt about the answer."


From Justice Scalia's dissent:
"I join THE CHIEF JUSTICE’s opinion in full. I write separately
to call attention to this Court’s threat to American
democracy.
The substance of today’s decree is not of immense personal
importance to me. The law can recognize as marriage
whatever sexual attachments and living arrangements
it wishes, and can accord them favorable civil
consequences, from tax treatment to rights of inheritance.
Those civil consequences—and the public approval that
conferring the name of marriage evidences—can perhaps
have adverse social effects, but no more adverse than the
effects of many other controversial laws. So it is not of
special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it
is that rules me.
Today’s decree says that my Ruler, and
the Ruler of 320 million Americans coast-to-coast, is a
majority of the nine lawyers on the Supreme Court. The
opinion in these cases is the furthest extension in fact—
and the furthest extension one can even imagine—of the
Court’s claimed power to create “liberties” that the Constitution
and its Amendments neglect to mention. This
practice of constitutional revision by an unelected committee
of nine, always accompanied (as it is today) by extravagant
praise of liberty, robs the People of the most important
liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the
freedom to govern themselves.

Publius said...

Scalia's dissent, continued

"But we need not speculate. When the Fourteenth
Amendment was ratified in 1868, every State limited
marriage to one man and one woman, and no one doubted
the constitutionality of doing so. That resolves these
cases. When it comes to determining the meaning of a
vague constitutional provision—such as “due process of
law” or “equal protection of the laws”—it is unquestionable
that the People who ratified that provision did not understand
it to prohibit a practice that remained both universal
and uncontroversial in the years after ratification.12
We have no basis for striking down a practice that is not
expressly prohibited by the Fourteenth Amendment’s text,
and that bears the endorsement of a long tradition of open,
widespread, and unchallenged use dating back to the
Amendment’s ratification. Since there is no doubt whatever
that the People never decided to prohibit the limitation
of marriage to opposite-sex couples, the public debate
over same-sex marriage must be allowed to continue."


"But what really astounds is the hubris reflected in
today’s judicial Putsch. The five Justices who compose
today’s majority are entirely comfortable concluding that
every State violated the Constitution for all of the 135
years between the Fourteenth Amendment’s ratification
and Massachusetts’ permitting of same-sex marriages in
2003.20 They have discovered in the Fourteenth Amendment
a “fundamental right” overlooked by every person
alive at the time of ratification, and almost everyone else
in the time since. They see what lesser legal minds—
minds like Thomas Cooley, John Marshall Harlan, Oliver
Wendell Holmes, Jr., Learned Hand, Louis Brandeis,
William Howard Taft, Benjamin Cardozo, Hugo Black,
Felix Frankfurter, Robert Jackson, and Henry Friendly—
could not. They are certain that the People ratified the
Fourteenth Amendment to bestow on them the power to
remove questions from the democratic process when that
is called for by their “reasoned judgment.” These Justices
know that limiting marriage to one man and one woman is
contrary to reason; they know that an institution as old as
government itself, and accepted by every nation in history
until 15 years ago, cannot possibly be supported by
anything other than ignorance or bigotry. And they are
willing to say that any citizen who does not agree with
that, who adheres to what was, until 15 years ago, the
unanimous judgment of all generations and all societies,
stands against the Constitution."

Publius said...

Sow Discord, Reap the Whirlwind

Justice Thomas writes in his dissent:
"The Court’s decision today is at odds not only with the
Constitution, but with the principles upon which our
Nation was built. Since well before 1787, liberty has been
understood as freedom from government action, not entitlement
to government benefits. The Framers created our
Constitution to preserve that understanding of liberty.
Yet the majority invokes our Constitution in the name of a
“liberty” that the Framers would not have recognized, to
the detriment of the liberty they sought to protect. Along
the way, it rejects the idea—captured in our Declaration of
Independence—that human dignity is innate and suggests
instead that it comes from the Government. This distortion
of our Constitution not only ignores the text, it inverts
the relationship between the individual and the state in
our Republic. I cannot agree with it."


An activist Supreme Court, ruling by judicial fiat, is one reason that Donald Trump was elected President.

Publius said...

"Three generations of imbeciles are enough"

>>Birthright citizenship, then, means what it says until it doesn’t anymore.

>The difference is that birthright citizenship is defined in the Constitution itself. The Constitution, by definition, cannot be unconstitutional.

Sure, tell that to Dred Scott, Homer Plessy, or Carrie Buck.

Five Justices of the Supreme Court simply need to find an executive order, or legislation, ending birthright citizenship is constitutional, given the Due Process Clause and Equal Protection Clause of the 14th Amendment.

Precedent for doing that:
Roe v. Wade
Obergefell v. Hodges

Publius said...

Ha

@Ron:
>I think there's a quietly hatched plot somewhere deep inside the vast right wing conspiracy . . .

Ha, the Republicans can't stop fighting with each other - do you really think they could be so organized to actually be running a vast right wing conspiracy?

The democrats, on the other

Publius said...

. . . hand, don't fight with each other and are on message every day -- their communist masters have trained and disciplined them well.

Ron said...

> Justice Blackmun rejected the District Court invoking the Ninth Amendment

No, he didn't. He just said that the 14th amendment argument was stronger.

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Don't you ever get tired of being wrong about everything?

Publius said...

In truth, they would have found a right to abortion if the Constitution was a recipe for chocolate-chip cookies

>> Justice Blackmun rejected the District Court invoking the Ninth Amendment

@Ron:
>No, he didn't. He just said that the 14th amendment argument was stronger.

Let's review the passage you quoted again, with emphasis:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Note the "as we feel it is" -- i.e., he asserts the right of privacy is found in the Fourteenth Amendment. That is his argument.

Then he employs a weak debate strategy, which is essentially, "Well, if my argument is wrong, then this other argument (which I think is wrong) might cover it, so either way, I'm covered." A better debate strategy is to stick with your main argument and not try to bolster it with a series of weaker ones.

Furthermore, Justice Douglass, in is concurrence, wrote:
"The Ninth Amendment obviously does not create federally enforceable rights."

Publius said...

Cookies, Part 2

Furthermore, the dissent in Planned Parenthood v. Casey informs us that no such "right to abortion" could be protected under the Ninth Amendment, as it wasn't considered a right:

"Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is "fundamental." The common law which we inherited from England made abortion after "quickening" an offense. At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother. Roe v. Wade, 410 U. S., at 139-140; id., at 176-177, n. 2 (REHNQUIST, J., dissenting). On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as "fundamental" under the Due Process Clause of the Fourteenth Amendment."

"We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a "fundamental right" that could be abridged only in a manner which withstood "strict scrutiny." In so concluding, we repeat the observation made in Bowers v. Hardwick, 478 U. S. 186 (1986):

"Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." Id., at 194.


We believe that the sort of constitutionally imposed abortion code of the type illustrated by our decisions following Roe is inconsistent "with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does." Webster v. Reproductive Health Services, 492 U. S., at 518 (plurality opinion). The Court in Roe reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the right to abortion fundamental.

@Ron:
>Don't you ever get tired of being wrong about everything?

I think you've finally found the title for your autobiography.

Ron said...

> "Well, if my argument is wrong, then this other argument (which I think is wrong) might cover it, so either way, I'm covered."

This is a very common mode of reasoning in the law.

https://en.wikipedia.org/wiki/Argument_in_the_alternative

You should read that article, and pay particular attention to the last sentence:

"Occasionally, such arguments can be confusing to some people, who perceive a self-contradiction. Generally speaking, this is a case of mistakenly thinking the argument claims both alternatives are true, when in reality it is claiming only that one or the other of them must be."

> Furthermore, Justice Douglass, in is concurrence, wrote:

With the operative words there being "in concurrence". Reasonable people can (and do) disagree about the legal basis for a woman's right to choose to terminate a pregnancy. But reasonable people cannot disagree that the right exists.

> Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is "fundamental"

No one says it is. No one disputes that the interests of the mother need to be balanced against the interests of the baby *when it is a baby*. No one disputes that abortion of a healthy fetus at eight months should be illegal. The only argument is over whether an embryo or a fetus is a baby. A fetus is arguable, but an embryo is not: en embryo is not a baby, and even the pro-life movement concedes this because no one is arguing that the destruction of a frozen embryo is murder. Somehow, an embryo only becomes a person when it's inside a woman's womb. When someone can explain to me how *that* happens then maybe I'll change my mind.