Colorado’s First State Song: Worthy of Revival

October 5, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings, Colorado state song 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: An edited version of this article originally appeared in the Denver Post.

This year marks the centennial of the adoption of Where the Columbines Grow as Colorado’s first official state song. Surprisingly, there is little public awareness of Columbines, despite the state legislature’s directive that it be “used on all appropriate occasions.”

The neglect is unjust, and the song merits a revival.

The composer of Where the Columbines Grow was Arthur J. Fynn, a Denver citizen of wide interests and abilities. Fynn was born in upstate New York into a poor farm family, probably in 1857. Despite his poverty, he worked his way through a private classical high school and through Tufts College (now Tufts University), where he received bachelor’s and master’s degrees.

In 1889, he landed a job as a Central City school administrator and in 1891 became chief administrator of the Alamosa schools. A decade later he earned a Ph.D. at the University of Colorado, and began a 29-year career as a school principal in Denver.

Fynn apparently was a competent administrator, but he also wrote poetry, published three songs, and developed a national reputation as an amateur archaeologist. He became an expert on the Pueblo Indians of the American Southwest. His book on the Pueblos was published by a leading Boston publishing house.

Fynn participated intensively in civic life and lectured publicly on literature, history, ethnology, religion, and archaeology. For 23 years he served as an adjunct professor at the University of Denver.

Two decades after Fynn died, one of his associates claimed that Where the Columbines Grow was inspired by an incident on an archaeological expedition they undertook together. For reasons explained in my new Independence Institute paper, Reclaiming the Centennial State’s Centennial Song: The Facts About “Where the Columbines Grow,” the truth of the story is open to doubt.

Fynn composed the melody in 1911 on a ship returning from Europe, and the Colorado general assembly adopted it in 1915.

The song has attracted more than its fair share of criticism, and the state legislature has entertained several proposals for its de-certification. But whenever lawmakers actually listen to the song they re-endorse it by thumping majorities.

The legislature has been correct to reaffirm Columbines’ status, because the criticism has not been well founded.

For example, one commentator faulted Columbines for being “the state song that forgot to mention the state.” The charge is factually untrue because Fynn’s fourth verse, added in 1921, includes the word “Colorado.” Moreover, the critic apparently was unaware that several state anthems focus on state characteristics but do not mention their state names. Criticisms of the music and lyrics have been similarly uninformed because they have shown no awareness of the words’ symbolism or how those words interact with the music.

Columbine’s music “colors” its lyrics with diminished and augmented chords, accidentals, crescendos, and decrescendos. That music is unusually creative for its era and genre, and its overall effect is faintly haunting.

The lyrics form visual, auditory, and sensory images that aggregate into the colors of the columbine flower. They also contain a series of contrasts. One of these contrasts—“the scream of the bold mountain eagle responds to the notes of the dove”—is based on oppositions within the columbine flower itself, whose petals are soft in front but resolve into talon-ed spurs behind. The same contrast is reflected in the plant’s English and scientific names: columbine, from the Latin word for “dovelike,” and aquilegia, from the Latin word for “eagle.”

In addition to presenting images and contrasts, the lyrics shift time perspectives, moving from present to future to past and back to present. Like the lyrics of Colorado’s other state anthem, John Denver’s Rocky Mountain High, the second verse of Columbines contains an environmental lament.

Coloradans owe it to themselves to re-acquaint themselves with Where the Columbines Grow. The Independence Institute Issue Paper on the subject includes an original score and is available here.

Creating Constitutional Protections Against American Socialism

October 4, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

Note: This article is cross-posted on CNSNews.

If any public policy lesson stands out from the experience of the 20th century, it is that socialism doesn’t work. I use the word “socialism” in its technical sense of government ownership of the means of production—or, in lay language, government operation of business enterprises.

Socialism in this narrow sense must be distinguished from the modern welfare state, in which the government allocates a large share of economic resources but does not presume to produce them.

Nearly all of the truly horrific massacres of the 20th century—those in which people were slaughtered by the millions—were perpetrated by socialist governments. Hitler’s National Socialist Germany, Stalin’s Union of Soviet Socialist Republics, and China’s communist government were, of course, the worse offenders. (The only non-socialist state with a record anywhere comparable was Imperial Japan.) Compared with those socialist regimes, more recent perpetrators of terror, such as radical Islam, are models of gentility.

However, one does not have to resort to horrific cases to communicate the record of socialism. Socialism in its softer forms offers lessons as well. Government ownership of business enterprise almost bankrupted Great Britain, Canada, and New Zealand. It did bankrupt Greece. Everywhere it has greatly retarded economic progress. That is why so many countries have joined the global movement toward privatization.

Perhaps surprisingly, the major nation learning least from the failures of socialism has been the United States. Enterprises such as airports and passenger trains, which are now private in Great Britain, have remained thoroughly socialized in the United States. With some exceptions, the current U.S. trend actually is toward more socialism.

This trend seems to defy common sense. The lessons of the 20th century aside, the 21st century also has witnessed an almost constant stream of news about the failures of government enterprises. Social Security and other government-run insurance plans flirt with bankruptcy. State-run school systems and federally-owned veterans’ hospitals are a constant source of disaster stories. Those stories probably would be worse if not for government practices that disguise the magnitude of socialism’s costs.

Yet the storm of demand for this or that government-run project continues to blow with ever greater fury.

One example is Missoula, Montana, my former home, which benefits from a competent water company that delivers pure water at a reasonable price—but persists in demagogic efforts to “nationalize” the company. (Admittedly, Montana has a “prairie socialist” history.) Even in a state like Colorado, which historically has been oriented toward free enterprise, the pressure for more and more government-operated business continues to grow.

Thus, units of Colorado government persist in expanding their transportation holdings, despite insufficient ridership and towering deficits. Instead of privatizing its airport as sensible governments have done, the City and County of Denver has not only elected to retain it, but has gone into the land-development business. The City of Lakewood, where I live, wants to follow suit—apparently thinking that it is better placed than professional developers to create a new “neighborhood.” Talk about a triumph of hope over experience!

The utter irrationality of such efforts induces one to ask (1) why is America still engaging in socialism, when most of the world is moving away from it? and (2) how can we protect ourselves?

The short answer to the first question is that politicians and bureaucrats have strong incentives to misuse public resources by pretending that they are businessmen, and state and federal constitutions permit them to do so. The incentives are there because government-owned enterprises offer the politicians and bureaucrats who control them opportunities to reward friends and punish enemies. Politicians and bureaucrats also can win public support by depicting great potential benefits while suppressing full information about costs. Lakewood, Colorado, offers an excellent example: Officials tout the purported benefits of a light rail line through the city. But they say little about the system’s sparse ridership, the economic drain from its cost, and how the system “crowds out” more thrifty private alternatives.

Pro-socialist incentives can be changed in a number of ways. Discussing all of them is beyond the scope of this article. One example, however, is to hold politicians who promote or operate government-run enterprises personally liable for their deficits, at least in some situations.

Additionally, we need to amend state and federal constitutions to provide citizens with greater protection.

It’s been done before. In the 19th century, most states amended their constitutions to require balanced budgets and to limit state debt. They did so after several states went bankrupt because politicians refused to stop overspending on infrastructure projects.

Here are some examples of how we can respond at the state constitutional level:

* Constitutional provisions that authorize or require the state to operate certain enterprises, such as pension funds, should be repealed.

* Government pension funds should be transitioned to private ownership, subject to normal state regulation.

* School financing provisions should be amended so that state dollars follow the student rather than being funneled automatically into bureaucratic monopolies.

* Municipal ownership of businesses should be banned. Except in the most unusual situations, municipalities should be required to contract for most services rather than provide them in-house.

* State constitutions should require government accounting practices to adhere as closely as possible to their private-sector counterparts.

* Finally, politicians and government employees should receive fixed financial rewards, added to their pay, for adopting innovations that save taxpayer money.

How A Famous English Convention Clarifies the Role of a Convention of States

September 26, 2015 by Rob Natelson · Leave a Comment
Filed under: All Postings, Article V, The Founding, supreme court 
Atop St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London

Note: This article first appeared on the American Thinker website.

In the Anglo-American constitutional tradition, a “convention” can mean a contract, but the word is more often applied to an assembly, other than a legislature, convened to address ad hoc political problems. The “Convention for proposing Amendments” authorized by Article V of the Constitution is designed to be that kind of assembly.

The first political conventions were held in England in 1660 and 1688-89. These gatherings looked something like parliaments, but they were entitled “conventions” because only the Crown could call a parliament, and they were not called by the Crown. Moreover, they were convened to address specific constitutional issues, not to legislate.

The 1660 convention led to the restoration of the Stuart line of kings after the failed English experiment with republicanism under Oliver and Richard Cromwell. The 1688-89 convention dealt with the political crisis arising when the second James Stuart (i.e., James II) was forced to flee the kingdom by popular outrage over his arbitrary and unconstitutional misrule and by the invading army of William of Orange.

The American Founders were much influenced by the English convention experience, which they grouped with the gathering of the barons that forced King John to agree to Magna Carta (1215). Between 1689 and 1787, Americans themselves frequently used the convention device, either to address problems within particular polities (conventions of the people) or to address issues of regional or continental importance (conventions of colonies or states).

Particularly important to the American Founders were the proceedings of the 1688-89 convention because it led to parliamentary supremacy over the Crown and adoption of the English Bill of Rights—or, as that document was entitled after adoption, the “Declaration of Right.” Both our own Declaration of Independence and our Bill of Rights owe a great deal to the English Declaration of Right.

After James II’s flight had left the throne vacant, the two houses of the previous parliament instructed William of Orange to call a “Convention of the Estates of the Realm.” The estates of the realm were the lords and the commons, and they met separately. Each elected its own officers and decided on its own procedures. In essence, each estate had one vote, and the concurrence of each was necessary for the convention to approve any measure.

Thomas Babington Macaulay, the great 19th century English literary figure, described in Chapter 10 of his History of England the general philosophy under which the 1688-89 convention operated:

The business of an extraordinary convention of the Estates of the Realm was not to do the ordinary work of Parliaments . . . but to put right the great machine of government. . . .

On these grounds the Commons wisely determined to postpone all reforms till the ancient constitution of the kingdom should have been restored in all its parts, and forthwith to fill the throne without imposing on William and Mary any other obligation than that of governing according to the existing laws of England. In order that the questions which had been in dispute between the Stuarts and the nation might never again be stirred, it was determined that the instrument by which the Prince and Princess of Orange were called to the throne, and by which the order of succession was settled, should set forth, in the most distinct and solemn manner, the fundamental principles of the constitution. This instrument [was] known by the name of the Declaration of Right . . .

After describing the contents of the Declaration, Macaulay added:

But, though a new constitution was not needed, it was plain that changes were required. The misgovernment of the Stuarts, and the troubles which that misgovernment had produced, sufficiently proved that there was somewhere a defect in our polity; and that defect it was the duty of the Convention to discover and to supply.


Thus the Convention had two great duties to perform. The first was to clear the fundamental laws of the realm from ambiguity. The second was to eradicate from the minds, both of the governors and of the governed, the false and pernicious notion that the royal prerogative was something more sublime and holy than those fundamental laws. The former object was attained by the solemn recital and claim with which the Declaration of Right commences; the latter by the resolution which pronounced the throne vacant, and invited William and Mary to fill it.

Today, the role of the Convention for Proposing Amendments should be seen, and usually is seen, in much the same light: not to alter the fundamentals of the Constitution, but to

* clarify the Constitution’s true meaning by sweeping away false interpretations that have accrued over the years and

* adopt changes that require the federal government to comply with the vision of the Founders in modern conditions.

The first goal can be met by amendments overruling rogue Supreme Court decisions, just as amendments previously have been used for that purpose. The second can be met by, for example, requiring a balanced budget, more firmly limiting federal authority, and reorganizing the judiciary so that it more fairly applies the constitutional system of checks and balances.

More discussion of the law of Article V Conventions, appears in my legal treatise on the subject.

How the Constitutional Case Against Citizenship for Children of Illegal Entrants SHOULD Be Argued

September 12, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

This is a corrected version of an article originally appearing at the American Thinker website. It is the third of a three-part series.

In two prior postings (here and here), I listed flaws in the constitutional arguments of opponents of birthright citizenship for children of aliens living here illegally.

For children to be American citizens by virtue of the Fourteenth Amendment, they must be born within American territory and they (or rather their parents) must be “subject to the jurisdiction” of the United States. Those opposing birthright citizenship hurt their own case by basing it principally on the claim that visiting foreigners never qualify as “subject to the jurisdiction.”

The problems with that claim are:

* The congressional debates cited to support it represent only weak evidence of meaning and are ambiguous on the subject, at best.

* Before adoption of the Fourteenth Amendment, many (probably most, perhaps all) African-Americans were legally foreigners, so the Amendment had to include foreigners to achieve its purpose of extending citizenship to them.

* The U.S. Supreme Court has decided twice that the meaning of “subject to the jurisdiction” is governed by the English common law doctrine of allegiance. The doctrine of allegiance grants local citizenship to the children of most visiting foreigners.

I do not have a dog in this hunt. But if I were legal counsel for opponents of birthright citizenship, I would take their legal argument in an entirely different direction. I would develop my case on at least two fronts.

First: I would investigate how state legislators who ratified the Fourteenth Amendment may have understood the phrase “subject to the jurisdiction.” This is potentially far more probative of meaning that what members of Congress may have thought.

When we interpret a murky congressional statute we don’t focus on the intent of those who wrote it, but on the understanding of the members of Congress who enacted it. Similarly, in constitutional interpretation, the understanding of the ratifiers is more important than the views of the drafters.

Unfortunately, there has never been an authoritative and comprehensive study of how the ratifying legislatures understood the Fourteenth Amendment. The closest thing is James E. Bond’s book, No Easy Walk to Freedom, but that work is limited to proceedings in the Southern states.

One reason for the lack of an authoritative compendium on the procedures of the ratifying legislatures is the traditional difficulty of accessing old legislative records and newspaper coverage from 37 states. But the growth of digital archives has made the task much easier. I would put researchers to work exploring the ratifiers’ understanding, if any, of the phrase “subject to the jurisdiction.”

Second: I would take advantage of Supreme Court precedents instead of trying to fight them. The two principal precedents are Elk v. Wilkins and U.S. v. Wong Kim Ark. Elk held that the Fourteenth Amendment did not turn tribal Indians into citizens. Wong held that the Fourteenth Amendment did grant citizenship to the U.S.-born son of foreigners legally living here. Elk and Wong further tell us that (1) the Fourteenth Amendment phrase “subject to the jurisdiction” means that, for a child to be a birth citizen, the parents (or more precisely the father) must be in allegiance to the United States at the time of birth, and (2) allegiance is determined according to the rules of English common law.

According to the rules of English common law, allegiance is either natural or local. Natural allegiance is what you owe to your own country. Local allegiance is what you owe any foreign country you are currently visiting. Either form of allegiance qualifies as “subject to the jurisdiction.”

The word “allegiance” ultimately comes from a Latin word meaning “to tie.” The English common law tells us that allegiance does not exist in isolation. It is part of a legal commitment by which sovereign and citizen are tied together. The citizen (or subject) expressly or impliedly promises obedience. The sovereign grants protection, and must be physically able to do so. As the Supreme Court wrote in the Wong case:

Such allegiance and protection [are] mutual,—as expressed in the maxim, “Protectio trahit subjectionem, et subjectio protectionem.” [Protection draws with it the status of the subject, and the status of the subject draws with it protection.]

The lengthy opinions in Elk and Wong offer still more guidance. For example, in Wong, the Court quoted the great judge and legal scholar Joseph Story:

“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance [sic], of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.” “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”

Let’s look at the exceptions that “illustrate and confirm the general doctrine.” Foreign diplomats are not in allegiance to their host country because they carry with them the extraterritorial jurisdiction of their homeland; they never submit themselves to the law of the host country. Minions of an occupying power are not in allegiance to the host country because the territory they occupy is no longer under the effective protection of the host government. In accordance with same underlying principles, the congressional drafters and the Supreme Court acknowledged a third exception: Individual tribal Indians were not in allegiance to the U.S. because at the time they were not governed directly or effectively by the Congress or the federal courts. Like the foreign diplomat and the minions of an occupying power, they were governed directly and effectively only by their own governments.

The Elk decision, which addressed the status of tribal Indians, contains more helpful language:

The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States [and] . . . no one can become a citizen of a nation without its consent.

In other words, the sovereign must consent both to the ties of allegiance/protection and to citizenship.

Consider this famous historical example: In the 18th century, James Somerset, a native of Africa, was captured and forced into slavery in Virginia. But when his master took him to England as part of a longer voyage, Somerset escaped and sought the protection of English law. On behalf of the Crown, the court accepted his petition and ruled that he thereby became an English subject—that is, in allegiance to the Crown. This allowed Somerset to obtain a writ of habeas corpus, which led to the judicial declaration that slavery was abolished in England.

Allegiance, then, derives from one seeking protection from a sovereign able to provide it and the sovereign’s consent to provide that protection. In the real world, the request for protection and the consent usually are implied rather than express. One seeks protection by entering the country (by travel or by birth) and the sovereign consents by allowing that person to remain within territorial boundaries.

So this leads us to the question of whether parents illegally in the country are in allegiance to that country. This case is different those recited by the precedents, but it is governed by precisely the same principles, as Justice Story doubtless would point out.

The United States has the ability to provide the protection of its law to foreigners who promise to honor it. But the person who enters in defiance of the sovereign’s law demonstrates a refusal to honor that law. The person may be seeking the protection of some of the sovereign’s laws (e.g., those securing a certain freedom or granting a benefit of some kind), but he is reserving the right to choose what laws he will obey. This is not the honest submission to the law, express or implied, required of one in allegiance.

In addition, the Elk case teaches that a sovereign cannot be forced to provide protection, and thereby accept allegiance, without its express or implied consent. Adopting a law governing entry into the country is the sovereign’s refusal to consent to those who disobey it.

Thus, the parent who enters a country illegally is not really in allegiance to that country. It follows that under the Elk and Wong cases, the parent is not “subject to [U.S.] jurisdiction” in the specialized sense that term conveys in the Fourteenth Amendment. It also follows that the parent’s child has the same sort of status held by the child of the foreign diplomat: A citizen of his own homeland, but not of the United States.

New Independence Institute Issue Paper: The Untold Story of the Colorado State Song!

September 9, 2015 by admin · Comments Off
Filed under: All Postings, Colorado state song 

Rob Natelson is not just a constitutional scholar and lawyer. He is also a trained historian. And in his latest research he has uncovered the story behind one of Colorado’s official icons: Where the Columbines Grow—the official state song.

This is the centennial year for Where the Columbines Grow, a state anthem like no other. It unfairly neglected today—and sometimes the politically-correct sneer at it. But there is a fascinating history behind Columbines, and Coloradans can be proud of both the composer and the song itself.

You can read all about it yourself at here.

A Roman Woman Pleads With Americans Not to Give Up Their Liberty!

September 8, 2015 by Rob Natelson · Comments Off
Filed under: All Postings 

During the first century BCE, concerned Romans saw their free republic being undermined by a demagogues who sought and held power by promising “benefits” to low-information voters. Ultimately, Romans lost their freedom entirely.

In this impassioned video, Lilia Domilla, a young Roman woman, warns Americans to preserve their liberties and not slip as her country did into bondage.

Lilia is played by Rebecca Natelson Chertudi, a Montana Latin teacher. (See the “credits” here.)

Birthright Citizenship Opponents Should Not Rely on 14th Amendment Congressional Debates

September 4, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

An earlier version of this article first appeared in The American Thinker.

Opponents of birthright citizenship often cite fragments of the congressional debate over the Fourteen Amendment’s Citizenship Clause to argue that the amendment’s drafters intended to exclude the children of visiting foreigners.

However, reliance on these fragments is a mistake.

Opponents of birthright citizenship face a number of difficulties that have encouraged them to rely on those fragments. They are:

* Language in the earlier Civil Rights Bill clearly excluding foreigners was deleted from the amendment. This change was not, as sometimes claimed, necessary to exclude tribal Indians.

* Any interpretation that excluded foreigners would undercut the principal purpose of the Citizenship Clause. That purpose was to grant citizenship to the newly freed slaves and their children. For reasons explained below, most (perhaps all) of those slaves were legally foreigners.

* As I explained recently, in two cases the U.S. Supreme Court has decided that the Citizenship Clause’s term “subject to [U.S.] jurisdiction” means subject to the English common law doctrine of “allegiance.” In general, that doctrine recognizes most children born in a country as natural born citizens, including the children of visiting foreigners. And in the more crucial case, United States v. Wong Kim Ark, the allegiance rationale was central to the holding, not mere “dicta” as sometimes asserted.

The best way to counter these problems would be to uncover evidence that state legislatures ratifying the Fourteenth Amendment understood “subject to the jurisdiction thereof” to exclude foreign visitors and their children. It is the understanding of, or meaning to, the ratifiers—not the intent of the drafters—that carries most weight in constitutional questions. Fragments from the congressional debates are not only weak evidence of meaning, but relying on them may be counterproductive.

The two most cited congressional comments are those by Senator Jacob Howard of Michigan and Senator Lyman Trumbull of Illinois, both proponents of the amendment. Howard’s comments have been taken as excluding all resident foreigners from the phrase “subject to the jurisdiction.” Trumbull said that the phrase meant “Not owing allegiance to anyone else.”

But anyone who reads Senator Howard’s comment in context can see that it actually is ambiguous. He said the amendment’s phrase “subject to the jurisdiction thereof” would exclude:

persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of person.

This could mean that the exclusion covers “foreigners and aliens and those who belong to the families of ambassadors.” But also could mean “foreigners [or] aliens who belong to the families of ambassadors.” (Remember that the punctuation was not Howard’s, but the shorthand reporter’s.)

Even if Senator Howard did mean to exclude all foreigners, the congressional debates show that others disagreed with this interpretation. Senator John Conness of California, another supporter of the amendment, specifically claimed it would grant citizenship to children of resident Chinese—and no one contradicted him.

Moreover, participants in the congressional debates were focusing on tribal Indians, especially those in the territories, not foreigners. The amendment’s proponents argued that Indians were outside U.S. jurisdiction because they were subject to their own governments and therefore were not directly subject to the jurisdiction of U.S. courts. Senator Trumbull’s comment was made wholly in this context; there is no evidence that he was referring to foreigners. Here is some of what he said:

[Tribal Indians] are not subject to our jurisdiction, in the sense of owning allegiance solely to the United States . . . We have had in this country and have to-day a large region of country with the territorial limits of the United States, unorganized, over which we do not pretend to exercise any civil or criminal jurisdiction, where wild tribes of Indians roam at pleasure, subject to their own laws and regulations, and we do not pretend to interfere with them. They would not be embraced by this provision.

Senator Howard’s approach was similar:

. . . [T]he word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department: that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to this full and complete jurisdiction. . . The United States courts have no power to punish an Indian who is connected with a tribe for a crime committed by him upon another member of the same tribe.

Insofar as one can divine a consistent understanding of “subject to the jurisdiction” from these debates, it appears to mean “subject to American judicial process and the law.” Tribal Indians and diplomats were not subject to either one, and therefore were outside U.S. jurisdiction in the sense that term was used in the amendment. But aliens within the borders of the U.S.—legally or illegally—are subject to both.

Reading the amendment to grant citizenship to the children or other descendants of resident foreigners may, in fact, have been necessary to accomplish its purpose. In 1868, when the amendment became effective, some former slaves had been illegally imported from Africa, and therefore were foreigners. They remained citizens of the tribe or nation into which they had been born.

Most of the other former slaves also were legally aliens: They were the descendants of foreigners; neither they nor their ancestors had ever been naturalized. Because they were slaves they could not take advantage of the common law rules of allegiance to claim natural-born status. In fact, under the rule issued by the Supreme Court in its notorious 1857 Dred Scott decision, all African-Americans living within the United States, whether or not enslaved, were legally foreigners. Arguably, then, the Citizenship Clause could not have accomplished its goals of overruling Dred Scott and affirming citizenship for African-Americans if it had excluded foreigners and their progeny.

This interpretative mess is one symptom of the generally poor way in which the Fourteenth Amendment was drafted. During the congressional debates, Senator Reverdy Johnson of Maryland begged his colleagues to be as precise as possible:

But I conclude by saying that when we are trying to settle this, among other questions, for all time, it is advisable—and if my friend will permit me to say so, our clear duty—to put every provisions which we adopted in such plain language as not to be capable of two interpretations, if we can.

His colleagues disregarded his advice. As a result, we have been arguing about the meaning of much of the Fourteenth Amendment ever since.

An Objective Guide to Birthright Citizenship

August 31, 2015 by Rob Natelson · 1 Comment
Filed under: All Postings, The Founding, supreme court 
Rob in the Colorado Rockies

Rob in the Colorado Rockies

An earlier version of this article appeared in The American Thinker.

This is a guide to the constitutional issue of whether a child is a citizen if born in the United States to alien parents here illegally. If you are simply looking for arguments to bolster your political views, look elsewhere. If you are genuinely interested in the merits of this issue, keep reading.

The Fourteenth Amendment became part of the Constitution in 1868. Its first clause states that “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 in which they reside.”

Although some claim that merely being born in the U.S. makes one a citizen, neither the Constitution nor the Supreme Court support that view. The Fourteenth Amendment further specifies that one must be “subject to the jurisdiction” of the United States. The critical question is whether the child of a resident illegal alien meets that requirement.

Anyone who tells you this is an easy question is not telling you the truth. It is an extraordinarily difficult question.

What makes it difficult is not merely the politically and racially-charged atmosphere surrounding it. What makes it difficult are problems common to interpreting the Fourteenth Amendment. The rest of the Constitution has many clauses that may seem obscure initially, yet become clear in the light of contemporaneous law and history. But the Fourteenth Amendment is filled with endless fodder for dispute.

This is partly because we know less than we should about the Amendment’s ratification by the state legislatures. It is partly because Amendment’s congressional drafters were not very competent. They sometimes were ignorant of existing constitutional law. They invented terms without defining them. And they ascribed meanings to terms different from established legal meanings. The phrase “subject to the jurisdiction” is a good example. We have only a few clues as to its intended meaning.

Additionally, none of the proposers discussed how the Amendment would impact the children of illegal aliens—even though (contrary to modern assertion) everyone knew that such children were in the country. They were the offspring of Africans illegally imported as slaves after the ban on the slave trade (1808) and before the end of slavery (1866).

As a result of such problems, a reasonably clear “originalist” answer to this issue is not possible. Accordingly, we turn to decisions of the Supreme Court.

The Supreme Court has addressed the Fourteenth Amendment’s “subject to the jurisdiction” language in three important cases. None of these cases definitively resolve our question. But they offer hints.

Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because because the Constitution’s text and history suggest that the citizenship standards for tribal Indians and foreigners are different. However, the Elk case does tell us that:

* “Subject to the jurisdiction” in the Fourteenth Amendment has a specialized meaning, different from the common meaning of “within a given territory and therefore subject to a court’s order,” as, for example, appears in the Thirteenth Amendment.*

* This meaning is connected to the concept of “allegiance,” a legal term traditionally used to determine whether a person is a natural born citizen.

* For deciding whether a child born in the U.S. receives citizenship under the Fourteenth Amendment, the relevant issue is the parents’ allegiance when the child was born. The parents’ or child’s later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.

Two justices dissented from the holding in Elk. They accepted the connection between “jurisdiction” and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state’s political community. Their version of allegiance thus depended partly on a person’s intent.

United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.

The most important lesson of Wong was this: The Constitution’s version of “allegiance” was the version we inherited from Great Britain in 1776—not versions prevailing in other countries or under international law. This agrees with the independent conclusion in my book, The Original Constitution: What It Actually Said and Meant.

As modified by Parliamentary statute, the British version of allegiance was as follows:

* Birth in a country (or on a country’s ships) normally creates a “natural allegiance” to that country.

* A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person’s status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.

* Foreign residents and visitors generally are in “local allegiance” to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.

* To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.

Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.

In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the Fourteenth Amendment.

The Supreme Court’s third case was Plyler v. Doe (1982). It ruled that a state’s treatment of illegal aliens’ children is controlled by the Fourteenth Amendment’s Equal Protection Clause. The “subject to the jurisdiction” phrase was not at issue. Nonetheless, the strongly-liberal majority inserted a footnote reading in part:

As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, 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.

In my opinion, this footnote has little or no persuasive power. It merely recited the views of a commentator and was irrelevant to the matter under decision.

So, where does that leave us?

Let’s assume the Court does not overrule the Elk and Wong cases. To rule against “birthright” citizenship, the Court would have to find a third exception to the precept that children born in the U.S. are U.S. citizens.

Those arguing in favor of citizenship will argue against another exception. They may point out that, unlike a diplomat or an invader, an alien who has violated immigration law still a duty to honor other U.S. laws. In other words, unlike the diplomat or invader, the alien owes local allegiance, and a father’s local allegiance should be enough to grant citizenship to his child.

Citizenship advocates also can point out that unlike in Elk, our country has largely accepted the children of illegal aliens. Our officials generally let them stay in the country and even provide government benefits, such as drivers’ licenses and public university tuition preferences.

Finally, advocates may argue that although the diplomatic and tribal Indian exceptions were mentioned during the Fourteenth Amendment debates, there was no mention of an exception for the children of Africans illegally imported. This implies that such an exception does not exist.

Opponents of citizenship may compare the illegal alien to the foreign invader whose mate produces a child in occupied territory. Both enter the country illegally, and neither should profit from his own wrong. This is different from the case of the captured slave, who is guilty of no wrong. Opponents can add that official acceptance of residence is not the same as acceptance of citizenship.

They may try to prove that illegal aliens often show no interest in abandoning their original citizenship. Opponents may then argue that the Wong dissent was correct to consider personal attitudes as well as mere geographic location.

These questions will be vigorously litigated, as they should be. My current bet is for the Court to rule in favor of citizenship.

* The Citizenship Clause’s limitation of territorial “jurisdiction” so as not to include all people within the territory appears to be unique in the Constitution. Compare the usages in IV-2-2, IV-3-1, and the Thirteenth and Eighteenth Amendments. It is even different from the use of “jurisdiction” elsewhere in the Fourteenth Amendment itself. Thus, in Plyler v. Doe (1982) the Supreme Court was unanimous in holding that the phrase “within its jurisdiction” in the Fourteenth Amendment’s Equal Protection Clause referred to anyone within the boundaries of a state. This discrepancy in meaning is another example of the Fourteenth Amendment’s poor drafting; the drafters should have used a phrase other than “subject to the jurisdiction thereof” if they wanted to exclude certain individuals within state or federal boundaries.

Term Limits for the Supreme Court?

August 23, 2015 by Rob Natelson · Comments Off
Filed under: All Postings, Article V, The Founding, supreme court 
Rob at Ullswater, England (2012)

Rob at Ullswater, England (2012)

This article first appeared in the American Thinker.

Term limits are among the reforms being proposed by advocates of curbing federal government abuses through the Constitution’s Article V amendment process.

The idea of congressional term limits has been around for some time. But more recent discussion centers on term limits for the judiciary, especially for the Supreme Court.

In fact, one application for an amendments convention now making the rounds—the Convention of States Application sponsored by Citizens for Self-Governance—is broad enough to include judicial term limits. Although a fairly new offering, it already has been approved by the legislatures of four of the necessary 34 states.

Part of what is driving the talk of judicial term limits is the Supreme Court’s continued failure to honor important parts of the U.S. Constitution. Admittedly, the Court does a pretty good job interpreting some parts of the document. The Intellectual Property Clause is one example. Moreover, the current Court is certainly more conscientious in constitutional cases than the rogue justices who dominated the bench throughout much of the 20th century, and who re-wrote critical portions of the Constitution to suit themselves.

Nevertheless, the present justices are to blame for failing to correct the constitutional fictions of their 20th century predecessors—and for sometimes writing fiction of their own.

Another factor justifying term limits has little to do with specific case outcomes. This is the enormous increase in life expectancy since the Constitution was written. Extended life expectancy is generally a good thing. But when it is coupled with lifetime appointments, the effect is to skew the balance of powers the Founders created.

When the Constitution was ratified, a newly-appointed justice might expect to serve less than 12 years. In fact, the average tenure of the first ten justices was about 8-1/2 years. By contrast, the average tenure of the latest ten to retire was 21-1/2 years. An article by Adrienne LaFrance provides additional statistics.

The Constitution’s checks and balances were crafted with 18th century life expectancies in mind. Although the Founders understood that the Supreme Court would void laws it found unconstitutional, the Founders also expected much more turnover than we now have. When judicial tenure is shorter, the President can nominate, and Senate can approve, more replacements. During the Founding Era, if the Court issued an irresponsible or clearly wrong opinion, citizens could take comfort from the fact that a majority of the Court would be replaced in a few years. That is no longer the case.

The strongest argument in favor of lifetime appointment is that it protects judicial independence. Proposals for short terms with possibilities for reappointment or retention, such as that advanced recently by Sen. Ted Cruz (R.-Tex.) are defective because they do not protect judicial independence.

But we can increase turnover and preserve independence through a constitutional amendment instituting a single long term (e.g., 12 to 20 years) without possibility of reappointment. Such an amendment would have other advantages, too:

First, it would end the presidential game of appointing young and relatively inexperienced justices in the hope that they will continue to influence the Court decades after the appointing President is gone. Of course, in the real world, younger justices often do not have an adequate track record, and may be more readily corrupted by influences in the nation’s capital. If a nominee could serve only, say, 12 years, a President might feel freer to nominate a person in his 60s rather than one in his 40s or early 50s.

Additionally, a younger nominee would have to consider a future career as a private citizen, living under the decisions he made as a justice.

Finally, more rotation on the Court would re-boot the system toward the balance set by the Founders, rendering mistaken decisions more amenable to ultimate correction by the people themselves, acting through the political process.

Rob Responds to Editorial Praising Order Forcing Baker to Make Same-Sex Wedding Cake

August 23, 2015 by Rob Natelson · Comments Off
Filed under: All Postings 
Rob in Roxborough State Park Colorado

Rob in Roxborough State Park Colorado

The following response to a Denver Post editorial first appeared in the Aug. 23, 2015 Denver Post.

Are those signs that say “no shirts/no service” now illegal?

Your August 14 editorial endorses a court ruling forcing a baker—at the cost of his livelihood!—to assist conduct his religious faith says is immoral.

“Commercial establishments can’t pick and choose among their customers,” the Post opines. “If you sell wedding cakes to one group of people, you’ve got to sell to all.”

Actually, that has never been the prevailing rule in our legal system. The prevailing rule always has been choice: People may serve, or not serve, whomever they choose.

There are two limited exceptions. First, a duty to serve (almost) everyone applies to monopolies, notably common carriers and utilities. But for enterprises in competition, such as bakeries, the rule has been freedom to choose one’s customers.

The other exception is the civil rights statutes. They originally targeted discrimination against very few groups, primarily ethnic minorities. Over time, civil rights laws have been expanded to include more groups—especially those with effective lobbyists. But the general rule has still been freedom of choice.

Freedom to choose your customers is vital. This is because—

* It protects other liberties, such as freedom of association and (as in the bakery case) freedom of religion.

* Focusing on particular customers helps improve services. In fact, in the real world, businesses limit the scope of their clientele all the time. A rule restricting this right makes it harder to meet individual needs. That hurts everyone. If you doubt this, compare the level of “progress” made by common carriers (such as buses) with progress in competitive enterprise (such as computers).

* Freedom of choice checks government power. The court’s holding that “you must serve whomever the state tells you” is symptomatic of America’s current mutation into an unhappy land where coercion is the norm.

The court’s decision should frighten you—even if you don’t care about cakes or bakers. A government that can tell a baker what kind of cake to prepare is a government that can completely run your life. And soon will.

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