14th Amendment

Death to the Living Constitution

Can "progressive originalism" become the Next Big Thing on the legal left?

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How should progressives approach the U.S. Constitution? Is it a living document, designed to evolve with the changing times? Or does it have a fixed meaning, one that may sometimes support progressive political outcomes?

Those were the central questions debated earlier this week at the Brookings Institution, a liberal think tank in Washington, D.C., which hosted a debate on "Progressive Visions of Jurisprudence."

As the event description helpfully put it, while conservatives have largely coalesced around the school of thought known as originalism, which says that the Constitution should be read according to its original public meaning, "progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large."

On hand to rescue the left from further floundering was University of Chicago law professor Geoffrey Stone, who preached the old-time religion of living constitutionalism, and his debate opponent, Douglas Kendall, founder and president of the Constitutional Accountability Center, who instead urged progressives to follow the Constitution's text and history "because those sources are on our side."

There is something to be said for Kendall's approach. Unlike Stone, who declared originalism to be "inevitably a fraud in practice" because "the text of the Constitution is unbearably ambiguous," Kendall correctly observed that the Constitution isn't always so vague, and that conservatives, despite their purported featly to originalism, sometimes get the text wrong.

Consider the current debate over birthright citizenship. Under the 14th Amendment, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Framers and ratifiers of that clause understood it to provide citizenship to all children born on American soil, regardless of the immigration status of their parents, with the exception of those born to foreign diplomats or to others with similar immunity from U.S. law.

Yet that hasn't stopped an assortment of conservative politicians and activists from trying to ban birthright citizenship for the children of undocumented immigrants without first amending the Constitution to allow them to do so—the hallmark of the living constitutionalist approach. In response, Kendall's Constitutional Accountability Center published an issue brief full of compelling originalist evidence proving the unconstitutionality of these proposed anti-immigration laws.

Leading conservative legal figures did the same. Among them was James C. Ho, a former solicitor general of Texas and one-time law clerk to Supreme Court Justice Clarence Thomas. As Ho observed in The Wall Street Journal, "Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution."

That's exactly right. And it's not the sort of argument a living constitutionalist can make with a straight face. After all, if the document is "unbearably ambiguous," why shouldn't a lawmaker adapt it to fit his agenda? Under Kendall's approach, progressives were able to enter the arena and join the fight; Stone would have had them booing from the sidelines.

To his credit, Kendall also admitted that his brand of originalism won't always produce progressive results. That's good to hear. Unfortunately for him, it may also be a deal-breaker for the legal left. Since at least the New Deal, liberals have championed a flexible judicial approach that encourages judges to ignore constitutional roadblocks in the service of allegedly higher political goals. As President Franklin Roosevelt put it in response to the unanimous 1935 Supreme Court decision striking down the National Industrial Recovery Act for exceeding the scope of the Commerce Clause, "The country was in the horse-and-buggy age when that clause was written." According to FDR, his administration wanted judges who would "view the interstate commerce clause in the light of present-day civilization." New Deal adviser Rexford Tugwell was a little more blunt about it, later admitting that many of FDR's policies "were tortured interpretations of a document intended to prevent them."

Kendall has his work cut out for him if he wants to convince the legal left to abandon its New Deal jurisprudence and kill off the living Constitution. Still, it's always better to have legal activists grappling with the text of the Constitution rather than ignoring it outright. For that reason alone, progressive originalism is a welcome development.

Damon W. Root is an associate editor at Reason magazine.

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    1. You all suck

      Spacemen 3 Revolution

      1. SIV with another nice choice. The man has good taste in music.

      2. Good shit. Unlike some other band. What was their name? I forget.

    2. A man was shot in the right arm at a 51 Connecticut Ave. home Thursday night by a man wielding a shotgun, according to police reports.

      Canine units tracked the suspect’s trail through showdrifts in several yards and a construction site. At one point during the pursuit, officers following prints in the snow believed he had lost a shoe.

      Jahmar (Rhyne) Futrell, 21, who lives at the address, was arrested about 40 minutes after he fled the scene with a shotgun, police said.

      Nothing else happened.

      http://www.greenwichtime.com/l…..995729.php

      1. I’m going to need something a little more recent to be convinced. I don’t think there’s much snow or showdrifts in Greenwich these days.

  1. Someone tell Garrett Epps. He’s my own personal feministing.

    1. Just saw that this morning. The stupid is definitely strong with that one. His basic argument is that the constitution doesn’t say what it says and that the only people who oppose him just don’t want progressive legislation. The progressive legislation being an unmitigated good in his world.

      1. Who was that little liberal twit who said the Constitution was just an old piece of paper? I can’t remember his name, not that it’s all that important… kind of like knowing the name of the other guy in Wham!; it’s just not that vital.

        1. I’m not little!

        2. Ezra Klein

          I think he and David Weigel used to date.
          Each other.

          1. I’d really love to hear just exactly is taught to students getting a BA in Political Science at UCLA.

            I’m wagering that the phrase “social justice” is oft used.

            1. “Social justice” is a pussy term.

    2. He also came out in favor of birthright citizenship and a literal interpretation of the 14th amendment in a recent column, so he does use the constitution when it suits his argument, much like conservatives do.

    3. I don’t even bother to read Epps’ articles anymore, the elegant retorts of Longtorso and Ploughman provide all the context needed.

  2. How should progressives approach the U.S. Constitution?

    They would shorten it just a bit.
    -General Welfare Clause
    -Commerce Clause
    -Necessary and Proper Clause

    The rest of it is just filler, anyway.

    1. Here’s the Progressive Constitution:

      We the People of the United States, in Order to form a permanent Union, establish Fairness, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Equality to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

      The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States, To borrow money on the credit of the United States without limit; and To regulate Commerce with foreign Nations, and among the several States, and within those states when said Commerce might conceivably affect commerce in other states, and not limited by the expressed or evident choice of individuals to not engage in Commerce, when not doing so might not advance the Progressive vision of America.

      To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

      The President shall have all powers necessary to lead the nation in peace or in war, the Quadrennial elections serving to limit the extent to which those powers may be abused.

      The Supreme Court shall have the power to overrule, overturn, edit, rephrase, or extend any law deemed necessary to further the General Welfare of the United States, and to enact such New Measures as the Congress may from time to time be unwilling or unable to enact, due to political posturing by populists from Flyover Country.

      Amendments to this Constitution shall be unnecessary, since the power to make all Needed Changes has already been vested in the Supreme Court.

      1. ……and Tony just ejaculated.

        1. twice……

      2. That is fucking awesome.

        1. “That is fucking awesome.”….what the mess Tony made?

      3. Every American should read Monroe to help them understand the Constitution.
        A completely open mind exposes one to his brains falling out. Like the word “his” here is generic.

  3. 14th Amendment.

    So now enslaving people and bringing them here is now comparable to people entering the country at their leisure ?

    Must be a rEASON thing.

    1. The parents of the emancipated slaves weren’t citizens (being slaves themselves). “Born here” was the only ironclad way of protecting them, hence born here.

      1. DRiNK !

    2. Because the kids of illegal immigrants must be punished for crimes committed by their parents. Sure.

      1. No. Because we don’t want to import socialists who will grow up to be legal voters. Actually, I think we should let virtually anyone in who wants to work and can find work. Unfortunately, some become drains on the system because we have become a welfare state. The answer is to eliminate the welfare state, and let immigrants in legally.

    3. True, the original intent of the 14th amendment was not to allow illegal immigrants’ children to become citizens, but neither was it the original intent of the Constitution to restrict immigration.

      1. This is especially true given that the concept of an “illegal immigrant” would have been nonsensical at the time of ratification.

      2. He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

  4. I believe the constitution is a living, breathing document thanks to a little mechanism known as the amendment process. In fact, right now people are talking about changing it.

    1. little mechanism known as the amendment process.

      Too far.

    2. Dyin’ ain’t much of a livin’.

  5. What’s changed? Why were there enough decent people to stand up to tyranny in the 18th century to start the Revolutionary War, but not in the 21st? Does such an overwhelming majority of the American people truly want what it’s getting?

    1. People are more willing to accept BS from “one of their own”, hence the desire to remove a British governor in favor of a domestic despot throughout their empire.

      “Yes, Zolan ate one of my children for breakfast, but he shares my skin color/language/religion and the Colonial governor who tried to get that child educated didn’t.”

  6. But the Constitution’s like 200 years old, and stuff.

    1. Ahh, there’s the little twit whose insignificant name I could not remember earlier.

    2. Also, not a suicide pact. So it’s okay to force people to buy health insurance.

      1. And force people to wear seat belts, not smoke in thenthitive areas, and – someday – forced to eat peas.

        1. All we are saying is give peas a chance.

          1. How long have you waited for the cosmic tumblers to line up so you could use that line?

          2. Now that brought a smile to my face.

        2. ME… bitches.

        3. Visualize whirled peas!

  7. Progressives should fear unlimited government just as much as the rest of us should. Bush is only the beginning for them, as the next president from the right will build upon the tyrannical excesses of this administration.

    1. Yeah, look how long it took them to utterly forget the excesses of George W. Bush. I don’t think Obama had even moved his underwear into the White House’s chest of drawers “executive privilege” became so five minutes ago.

      1. The political idiocy of people is amazing.

        1. I call it political opportunism. I was truly disheartened to find out that democrats truly didn’t give a shit about privacy, the first amendment, illegal search and seizure. Nope, it was all just fling poo at this guy and see what sticks to make way for our guy.

          1. But you’re just making this situation up in your head. Both liberals and conservatives have been fairly consistent on these issues over the two administrations. If you read liberal sources (try Nation), you’ll find that they haven’t stopped criticizing presidents on these points. (And conservatives remain OK with torture.)

            1. Obama or his fellow Dems could do away with – or at least alleviate – the shit like torture, PATRIOT/TSA/etc abuse, and God knows how much else…

              …so, why don’t they do it?

            2. So a democratic controlled congress and a democratic president must have failed refused to renew the PATRIOT act.

              And a democratic president must have refused to get us into more wars, and pulled us out of the ones we were in.

              And a democratic president must have refused to bailout banks and big businesses.

              I am so relieved!

              The currently comprised democratic party is anti freedom on every issue. This didn’t use to be the case.

              Libertarians are used to having to hold their nose and ally with those on the side of liberty on different issues, but there’s a reason libertarians have had no reason to ally themselves with democrats lately. It’s because democrats are on the wrong side of every issue recently.

              When you have blue team always wrong and red team only wrong most of the time, you left us little choice.

              1. I don’t think it’s appropriate to make the parties equivalent on issues of war and torture and civil liberties. Dems aren’t perfect, but they’re hardly Republicans. The same goes for economic policy. Unless you favor Republicans because you like massive spending increases and debt.

                1. Re: Tony,

                  I don’t think it’s appropriate to make the parties equivalent on issues of war and torture and civil liberties.

                  Not even when both wage wars, engage in torture or killing?

                  Talk about partisanship.

                  Dems aren’t perfect, but they’re hardly Republicans. The same goes for economic policy. Unless you favor Republicans because you like massive spending increases and debt.

                  FDR never existed.

                  1. FDR? Yeah the country never recovered from him.

                2. “because you like massive spending increases and debt”

                  We’re HOW much deeper in debt, now?

                  1. ….In HOW much time?

                  2. We’re in a huge amount of debt, almost all of it thanks to George W. Bush and his Republican congress.

                    1. Nice try, Tony.

                3. Toni,
                  Obamna has increased the debt at a rate 2.5 times faster than Bush. Neither party is good on this issue, but Obama in this regard is the record holder. Hell Pelosi manged to lap the House repubes when it came to stupid.

                  1. This is a big fat lie that is no less a lie no matter how often it’s repeated. Obama did not cause the economic conditions, and every attempt he’s made to improve them are blocked by, yes, Republicans.

                    1. Obama did not cause the economic conditions

                      How not? He turned a

                4. Dems aren’t perfect, but they’re hardly Republicans.

                  Yeah cuz gitmo is so closed.

                  Unless you favor Republicans because you like massive spending increases and debt.

                  No and this is arguably why independents abandoned the GOP in 2008. The only problem is since then the Dems have made the GoP look like paragons of fiscal prudence by comparison.

                  The 2010 revolution wasn’t a mandate in favor of the GoP. It was because the dems have lost their minds.

                  1. cant ask for anhything better!

              2. anti-freedom on every issue….yep. In addition to that most of its advocates, here and elsewhere are morons.

            3. But you’re just making this situation up in your head.

              The dream police, they are inside of my head!

        2. Political idiocy is like sexual intercourse.

          It tends to lose its luster the more you are exposed to it.

          1. Only if you do it wrong.

    2. as the next president from the right will build upon the tyrannical excesses of this administration.

      You mean Obama?

      1. No, I don’t, but if aliens intervene and get him reelected, the answer would be yes.

    3. Why wait for the next president from the right? Obama seems to have doubled down on all the worst aspects of the Bush administration.

  8. They could try that whole “plain language”/”original intent” argument against conservatives who want to ignore the 4th, 5th, and 6th Amendments in their pursuit of bad guys, foreign, domestic, and imagined.

    1. Team Blue hasn’t done jack shit to stem the “pursuit of bad guys, foreign, domestic, and otherwise”…

      1. No, but we talk a good game and that’s all that matters.

        1. 99% of everything bad, is the fault of Republican Christ-fucker capitalists.

      2. What makes you think Team Blue and Team Red are fundamentally different?

        Brand names, that’s all they are.

        1. They aren’t, save for tiny differences.

          Their overall goals are, however, frighteningly similar.

        2. They are ALL Progressive’s and they all eat out of the same dish.

  9. It has always been my impression that statists (i refuse to call them progressives) have advanced the notion of a living constitution simply because nothing lives forever, and at some point, must die.

    1. PROGRESSiVES!

  10. I’m a “living legislationist.” This means that if I don’t like, or understand, what a piece of legislation says, I can change it to agree with my current outlook, because after all, those legislators obviously didn’t take my current situation into consideration when they wrote the legislation.

    Gee, that sounds dumb as can be, doesn’t it?

    Just like the “living constitution” argument does.

    The authors of the constitution produced the document to authorize the government to do some things; to forbid it from doing others; to ensure the people were afforded certain considerations, many of them clearly intended to be inalienable.

    Now, if the government doesn’t LIKE some portion of that, there is provision for amendment. It’s not like the constitution cannot be changed.

    What the actual agenda of the “living constitutionalists” is, is to change the constitution withOUT having to ask anyone if that’s what the people want.

    It’s a violation of the solemn oath they take, deception of the highest degree, and legislators should be dismissed from their positions for ever advocating it.

    1. I’m a “living legislationist.” This means that if I don’t like, or understand, what a piece of legislation says, I can change it to agree with my current outlook, because after all, those legislators obviously didn’t take my current situation into consideration when they wrote the legislation.

      Gee, that sounds dumb as can be, doesn’t it?

      In other words, current environmental law.

    2. legislators should be dismissed from their positions for ever advocating it.

      What ever happened to executing traitors?

      1. “What ever happened to executing traitors?”

        Sheep have short memories

    3. those legislators obviously didn’t take my current situation into consideration

      Not to mention so much of that legislation is so OLD…at least 10 years. It’s no longer relevant to *this* decade.

  11. I wonder how the average liberal would feel about a “living mortgage agreement” that lets BoA increase what was a fixed interest rate or unilaterally increase the size of the loan, because it is too big to fail, the nation needs it, etc.

  12. Tangental to Dracula…

    When I was a kid, the scarriest movie i ever saw was Brides of Dracula. We had a black and white TV, so I just figured it wasn’t filmed in color.

    I saw that it was on a few months back and decided to watch it. Turns out it’s in color, actually very colorful. It made it seem more like Seven Bride for Seven Brothers. Not really scarry

    Does anyone know if they make digital TV’s that can be set to black and white?

    1. Drop the color intensity setting to zero. There’s a menu or a dial that lets you adjust colors on pretty much every color TV ever made.

      1. Makes sense. I’ll try that. Thank you.

    2. THAT”S RACIS…….

  13. “To his credit, Kendall also admitted that his brand of originalism won’t always produce progressive results”

    Yeah – seeing as how the left’s precious welfare state programs of Social Security, Medicare, Medicaid, food stampts, etc. is unconstitutional.

    Ditto for all the laws predicated on the unconstitutional notion that the Commerce Clause allows regulation of thing “that have an effect” on interstate commerce rather than just direct interstate commerce transactions.

    1. Yeah, but it says “to Promote the General Welfare” in the Preamble, so it must mean Congress can do whatever it wants!

      Of course that the general welfare was already being promoted by the creation of the first truly limited government in the history of Western civilization is a bit inconvienent for statists.

    2. The Constitution has not meant anything since Wickard v Filburn.

    3. Wouldn’t be unconstitutional if done at the State level. A progressive originalist could logically just advocate to transition those over.

  14. What the left doesn’t seem to want to accept is that if they twist the law enough, enough people may lose any respect for it and stop obeying it. You can’t argue “consent of the governed” if I have no idea what I consented to because you can unilaterally change it any time you want.

    The word they need to look up is “legitimacy”. If the non liberal majority of the country thinks they’ve lost that, they can pass all the tax increases they want and it won’t matter.

    1. What the left doesn’t seem to want to accept is that if they twist the law enough, enough people may lose any respect for it and stop obeying it.

      That’s where the militarized police, flush with federal dollars and toys, comes in.

      You WILL respect their authoritah.

    1. This.

    2. Where?

  15. The US constitution is like the Queen of England, supposedly the ultimate authority of the land, most respect it/her, but everyone knows that it/she has no real power and is only there for traditions sake.

    1. Anus to you, too. In fact, anus all around!

  16. Don’t know why libertarians would support an ‘originalist’ view seeing as how the constitution is far from a libertarian document. Turns out ‘originalism’ is just self-awarded brownie points for one’s specific political views–a claim that the constitution supports them and nothing else.

    1. Re: Tony,

      Don’t know why libertarians would support an ‘originalist’ view seeing as how the constitution is far from a libertarian document.

      That’s what I told my landlord, who insists on being a leasing contract ‘originalist.’

      I mean, that is so pass?!

    2. Have you ever read the Soviet constitution ? You will love it. It is full of all kinds of rights promised to its citizens: equality, free health, housing, education, did I mention equality, communal spirit, a scientific government, prosperity and oh yes equality.

      Check it out.

      1. I don’t worship pieces of paper, so I’m only interested in whether those things are achieved in practice.

        1. I agree, we should have a system which has the kindest politician running things. Pieces of papers are relics of a bygone age, we just need good leaders, they will know how to fix problems.

        2. Re: Tony,

          I don’t worship pieces of paper[…]

          That’s what I told my landlord!

          But the damned bastard insists on eviction. I mean, I am only interested on what works!

          1. If your lease has unacceptable terms, you are not required to stick with it. If the constitution doesn’t allow for a decent society, what use is it? (Thankfully it does.)

            1. Yes, what we need is a decent society, get rid of those gambler, drinkers and homos, then decency will not require some silly constitution.

            2. Re: Tony,

              If your lease has unacceptable terms, you are not required to stick with it.

              Obviously!!!! Uh, of course, I would have known they were unacceptable BEFORE I signed, right?

              But I can change my mind whenever expediency dictates, can’t I??? Why bother with mere details!

              If the constitution doesn’t allow for a decent society, what use is it?

              Aaaaand, if it allows for a decent society, then it is good! Right?

              Around and around we go
              around in the merry-go-round!

              1. By the way, wouldn’t an INdecent society be more fun? Who want’s a decent society?

                The Amish?

                1. What the hell is a decent society ? You can ask 100 people and probably find diametrically opposed viewpoints on what constitutes decent ?

                  1. Re: NotSure,

                    What the hell is a decent society?

                    Knowing Tony, it would be one where people would cut their hair according to the Socialist way.

                    [I always get a kick out of that.]

                    1. Broadly, a decent society, especially one with lots of wealth, provides for national and resource security, healthcare, education, and a safety net for its people. An indecent one sacrifices all these things so 10 billionaires can each buy an extra house.

                    2. Re: Tony,

                      Broadly, a decent society, especially one with lots of wealth, provides for national and resource security, healthcare, education, and a safety net for its people. An indecent one sacrifices all these things so 10 billionaires can each buy an extra house.

                      Interestingly enough, a Constitution that would provide for those things ends up not providing anything at all – see the Soviet Union’s Constitution.

                      Oh, and those Politburo guys could buy that extra house as well. Justice is served.

                    3. Our constitution does provide for these things. It’s right there in the preamble. A living constitution allows us to interpret that mandate in the context of the modern age. Thank goodness, otherwise we’d have to scrap it.

                    4. Exactly what the USSR provided, so why you so anti it ?

            3. So… the more government we have, and the more money it spends… the decenter society becomes.

              Got it.

              1. Hahahahahahahahahahahahahahahaha!

        3. “I don’t worship pieces of paper”… unless the words “marriage license” are on them.

          FIFYd.

          1. I’m opposed to marriage. On a completely different matter, I’m in favor of equal rights under law.

            1. Law? You mean those things written down on the paper you don’t worship?

              1. For someone opposed to marriage, you sure pitch a hissy every time we discuss the marriage issue.

                1. That’s because people who claim to believe in freedom seem to always manage to find exceptions when it offends their provincial worldview.

                  1. “Provincial”

                    Bullshit.

        4. I don’t worship pieces of paper, so I’m only interested in whether those things are achieved in practice.

          Tony; now on the record of being against the rule of law.

          1. I’m not against having a constitution as the basis for law, I’m just not for worshiping it as anything more than the tool it is.

            1. We tools stick together

    3. I support an “originalist” view even when it isn’t libertarian because I’m more concerned with the process being legitimate, not the results being what I want.

      1. As we all should be, but too often people claim the process is illegitimate because it doesn’t give them what they want.

        1. Like giving able-bodied, sound-minded people welfare, Tony?

          1. I don’t think people on welfare would say a state that doesn’t provide welfare is illegitimate. There are plenty such states in the world. All fabulous places to live I’m sure.

            1. Ignoring the logic of the question, as usual.

        2. Who is this and what did you do with the real Tony?

    4. the constitution is far from a libertarian document.

      The existence of a document that tells the government and its citizens what is legal and what is illegal and what rights and powers they have is by definition libertarian.

      It is how we are ruled by laws not men and it does not surprise me in the least that you oppose that.

    5. Rule of law?

  17. Amazing at the ignorance of the government of this great nation. Living or not, that particular amendment was enacted for a specific purpose, to protect the former slaves and their children. And since that time, the same government has enacted immigration laws, do not go contrary to the constitution, which gives them the power to regulate immigration. One cannot have a child born here be a automatic citizen unless, and here is the key to it, unless they are under the jursidiction of the United States. being here illegally negates any possiblity of that as then they would turn themselves in to be deported. They cannot have it both ways.

    1. being here illegally negates any possiblity of [being under the jurisdiction of the U.S.]

      So illegal immigrants don’t go to jail if they commit crimes?

      1. You are using “jurisdiction” in a way that is contrary to the understanding of the people who wrote the 14th Amendment. They explicitly said that the intended meaning of that word was “owing allegiance to” an authority — namely, the U.S.

        Do “illegal” aliens owe their allegiances to the U.S.? If not, then to whom or to which authority? And whether or not they owe allegiances to the U.S. or any other authorities, what about their children? How do children declare or renounce “allegiance” in any legally binding way?

        Traditionally, all over the world, children have tended to be ascribed the allegiances of their parents until they become “emancipated” through legal action or by “coming of age.”

        The 14th Amendment does not impose allegiance on anyone. It does, however, say that anyone who owes allegiance to the U.S., and who was born here, is automatically a citizen.

        1. The only people in US territory not subject to its jurisdiction, as the authors understood it, are foreign diplomats and visitors and Indians on reservations. Immigrants owe “allegiance” to the country they live in. Who else would they owe it to? The 14th was written to solidify in law the citizenship principle of the Civil Rights Act of 1866, which more explicitly conferred citizenship on birth. Yes, it was to give freed slaves all the same rights as whites. I don’t see why we should have anything but the same equal rights in the present day.

    2. If they are “illegal” doesn’t that sort of imply that they are under the jurisdiction of the government defining their illegality?

      1. I’d have to agree with that. It’s hard to be illegal vis a vis the U.S. unless you are under its jurisdiction.

    3. Living or not, that particular amendment was enacted for a specific purpose, to protect the former slaves and their children.

      Odd, then, that they didn’t specifically mention “slaves and their children.” They meant to write that, I’m sure, but somehow … nope. Just too difficult, I suppose. Well, we’ll just enforce the law we’re sure they meant to pass, then.

    4. Re: Brenda,

      “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

      That means: Subject to the laws of the US. People who are not subject to the laws of the US are not citizens, which include: foreign diplomats, Native Americans born inside the Indian Territories, and Superman.

      1. Why isn’t Superman subject to US law? Is it because no jury would convict him?

        1. Re: pmains,

          Why isn’t Superman subject to US law?

          Who would arrest him? You?

          1. Superman would turn himself in out of a dedication to truth, justice and the American way.

            1. Re: pmains,

              Superman would turn himself in out of a dedication to truth, justice and the American way.

              No, he knocks a few heads out of a dedication to truth, justice and the American way.

              Oh, and he ducks when handguns are thrown at him.

        2. Superman was the adopted son of Jonathan and Marsha Kent, two natural-borne Kansans, so he’d be considered a citizen. Whether he could run for Prez would be a question for the courts; one we’re likely to see one day soon considering all the adoptions from China and other places in the late 80’s and 90’s

          1. Superman wouldn’t be the first President born in a jurisdiction whose name starts with “K.”

            Only joking!

      2. No, it does not mean only “people subject to the law of the U.S.” It means something deeper: “people owing allegiance to the U.S.” This is the understanding of the people who wrote and ratified the 14th Amendment. You can look it up in their own words, starting with Senator Howard.

        There are people who are not subject to the laws of the U.S., and who have sworn no allegiance to the U.S. — for instance, diplomats — who have immunity to our laws and are definitely NOT under our jurisdiction at all. There are also people who have sworn no allegiance to the U.S., but who have no immunity and are subject to our laws WHILE THEY ARE ON OUR SOIL. Tourists, students on temporary visas, and “illegal aliens” come to mind. None of these people are “subject to the jurisdiction” of the U.S. in the sense of owing any allegiance to it. Neither class would qualify for birthright citizenship under the 14th Amendment, but would their offspring?

        Given that the Amendment does make the distinction of people being “subject to the jurisdiction” of the U.S., we have to ask whether a newborn can be said to have any “allegiance,” or at what point the new person can express or declare his or her allegiances. The 14th Amendment doesn’t cover that aspect of citizenship, and it has so far been left to congress and the courts to address (or dodge) the issue. As far as I can tell, we get “birthright citizenship” from case law, misinterpreting the 14th Amendment.

        It makes the most sense to me, to say that a minor child acquires the allegiance(s) of the parents. When allegiances are split, dual citizenship is theoretically possible, but we used to want naturalized citizens to renounce citizenship elsewhere and swear allegiance only to the U.S., so permanent dual citizenship doesn’t seem consistent with the way with American concepts of citizenship. At some point, then, the child must positively choose, or a default must kick in. At what point can this choice be legally binding? Should the default be to confer “birthright citizenship” at the “age of election” or not? I don’t think the 14th Amendment gives us any help in resolving such questions. It seems to me as if the resolution must lie in explicit legislation, up to and including a clarifying constitutional amendment. To the extent that the resolution had been found in the courts, it seems to me as if the courts have erred.

        1. How do immigrants retain their “allegiance” to their home country when moving out of it? How do you quantify allegiance?

          The 14th confers citizenship upon birth. It may not be 100% clear in the language but that was its intention and that’s what case law has found. The “allegiance” language has always applied only to the exceptional cases mentioned.

          1. “How do immigrants retain their “allegiance” to their home country when moving out of it?”

            By not renouncing their citizenship. Some countries have no provisions for dual-citizenship, so if they apply for citizenship in their new country they cannot retain their allegiance with their home country.

            “How do you quantify allegiance?”

            By observing actions. A person owing allegiance to a country will willingly obey the laws of that country…including the laws that regulate their legal status. It’s possible to maintain allegiance to two countries as long as you obey the laws of both and are able to retain citizenship in both.

            Allegiance means – in personal terms – “I will obey the law.” If you START your relationship with one by breaking its laws (like those regulating travel from foreign countries) you are by default rejecting allegiance to it.

            “The 14th confers citizenship upon birth. It may not be 100% clear in the language but that was its intention and that’s what case law has found.”

            Wrong on all counts. The phrase “subject to the jurisdiction thereof” was intended to reject automatic citizenship to those whose allegiance was not complete. The country from which illegal aliens come from have a “claim of allegiance” on their children regardless of where they were born; this makes the childrens allegiance incomplete. The following Supreme Court decisions (Elk v.Wilkins; Wong Kim Ark case; Slaughter-House cases) all reject birthright citizenship to the children of illegal aliens.

            P. Mercury

  18. This presumes the existence of a group of people known as progressives, who actually have a desire to positively affect the citizenry, instead of just another group out to exert power over others and to extract cash for their own use.

  19. “The Framers and ratifiers of that clause _understood_ it to provide citizenship to all children born on American soil, regardless of the immigration status of their parents, with the exception of those born to foreign diplomats or to others with similar immunity from U.S. law.”

    Mr. Root, did you go back through the lengthy comment thread attached to the link you gave us at the word, “understood,” in the quote from your article, above? I just did, and saw nowhere a strong refutation (much less a definitive one) to the historically supported assertion that the drafters and ratifiers of the 14th Amendment understood the phrase “subject to the jurisdiction thereof” to mean people who owed allegiance to the US. That category cannot possibly include temporary visitors to the US, much less “illegal” aliens, and most likely cannot include their minor children, either.

    Just because you interpreted the 14th Amendment’s authors’ “understanding” in a Reason article a year or so ago, doesn’t mean your interpretation was correct, or that this point of controversy has been settled. To ignore substantiated objections to your opinion and proceed as if they had never been raised, is not what I would expect of intellectually honest discussion or reporting.

    1. Sorry Mr. Merritt, the Constitution either means exactly what it literally says, or the whole exercise of having a written constitution is pointless.

      1. Don we now our gay apparel.

  20. Is it a living document…? Or does it have a fixed meaning…?

    That’s easy. The Constitution is a living document when it does not comport with progressive ideology. It is fixed when it does.

    1. By Jove, I think you’ve got it!

  21. I think Progressives would be wise to embrace a fixed, if not originalist, interpretation of the Constitution. The War on Terror shows how interpreting the Constitution to adapt with the changing times does not always fall in their favor. (Or, given their continued support of Obama in spite of his continuation of Bush WOT policies, maybe it does? I may have to rethink that one.)

  22. Randy Barnett gets is right in “Restoring the Lost Constitution”. Basically his arguement against a “living” (i.e. whatever the heck you want it to mean) constitution is this: “Why bother writing anything down if the exact words don’t mean something specific?” He’s a bit verbose, but in the end his argument for reading the text according to the grammar and vocabulary of the day is perfect.

    1. Why bother writing anything down if the exact words don’t mean something specific?

      While that may be a good question, the fact is constitutional language is vague at times. That means it has to be interpreted. A strong case can be made that this was intentional for the purpose of flexibility with time–a hallmark of a good constitution if you ask me.

      1. Some parts of the constitution are vague, I will grant you that, and do allow for interpretation. Other parts are not vague, such as IIA and the commerce clause. Yet we have the living constitution types “interpreting” those clear, concise phrases to mean that you have no right to own a weapon in Washington, DC or New York or New Jersey. The living constitution types twist the commerce clause to mean that the federal government can regulate and control every aspect of citizen’s lives.

        I prefer the textualists. If enough Americans don’t like the wording of the constitution, then it can be amended. To paraphrase the venerable Bill Clinton, amend it, don’t end it.

        1. For the parts that aren’t vague I was thinking more of terms of office and such. The 2nd is hardly clear, and to claim otherwise is to engage in exactly the kind of brownie points awarding I was talking about. How do you know it applies to weapons that weren’t invented at the time of its writing? How does the context of a well-regulated militia apply? No, not a good example at all. Same with the commerce clause. In fact you’ve chosen two of the most hotly contested passages in the whole document! The mere fact of controversy refutes the claim that these clauses can be understood by simply reading them. Many people have read them and disagreed.

          1. Changes in structure of guns is merely mechanical evolution, Tony… they still fire bullets propelled by gunpowder.

            Oh, and the commerce clause can kiss my dick.

            1. I don’t recall bullets or gunpowder being mentioned in the bill of rights. I’ll check again.

          2. Both the commerce clause and the 2nd amendment are perfectly clear. It is only as a consequence of generations of people bent on actively trying to obfuscate those meanings, people with evil intent and unconstitutional agendas, that any question has arisen.

            Every question you asked has a perfectly straightforward answer found in the appropriate section. Any other question you might ask will, too.

            For instance, the 2nd applies to all weapons, because that’s what it says: arms. It doesn’t say knives, swords, guns, frigates, bombs or caltrops. It says ARMS. If the government wants to legitimately limit that, that’s what the amendment process is for. To say that the authors of the 2nd were unaware that new arms were developed all the time is to simply make a fool of one’s self. Likewise to say that only “guns” are covered is ridiculous. “Arms.” Not only that, but with the amendment process, they show that they were also aware that arms developments that they could not predict might yet require changes, and provided a method for exactly that. It’s not easy, nor, obviously, was it meant to be, but it *is* there.

            “How does the context of a well-regulated militia apply?” It means that all males of fighting age should be consistently armed; the advantages of this include sharing ammunition, being able to pick up the arms of the dead guy next to you and use them in a familiar and efficient manner, not having to haul 95 different types of ammunition along with you, making sure everyone *is* armed right out of the gate… etc. Look it up — the language is perfectly clear in the context of the day. Militia does not and did not mean “national guard”, and it is likewise not “army.”

            “Same with the commerce clause.”

            The commerce clause is plain as day. It provides for the government to regulate trade between the states; not only is that what it *says*, if you look at the overall structure designed into the country, it makes perfect sense: When states have radically differing laws, as they were intended to be allowed to develop, it makes sense that friction at the borders could easily develop, and therefore need interstate controls to prevent serious problems. The bottom line is interstate, not intrastate; the current interpretation is so wrong as to be traitorous in the extreme.

            You state that many people have read these passages and disagreed; but the thing is, not many people who are *qualified* to read them have disagreed! It takes study to understand a document that is this old; and quite aside from study, the number of times congress members have been caught out misquoting, and/or not even knowing what the constitution says are legion… yet they’re perfectly comfortable dumping ex post facto laws on us, inverting the meaning of the commerce clause, outright violation of the 1st, 2nd, 4th and other amendments.

            The whole “living constitution” argument is nonsensical and a sign of not having actually read the document and understood it. But that’s not the document’s fault; it is the reader’s.

      2. Re: Tony,

        While that may be a good question, the fact is constitutional language is vague at times. That means it has to be interpreted.

        Translation: I need a dictionary to understand this English thingy.

        The language in the Constitution ain’t vague. What is MOSTLY vague is the series of “interpretations” passed through the decades as so many campfire stories.

        A strong case can be made that this was intentional for the purpose of flexibility with time–a hallmark of a good constitution if you ask me.

        That’s what I told my landlord! That the lease contract had language with meaning that changed over time!

        He is still skeptical, though, because it has been only a couple of months…

        1. So what does “cruel and unusual” mean? You have to say without referring to any other document. It’s not vague, after all.

          1. Again, simply refer to the amendment. The entire 8th amendment is *obviously* aimed at keeping the government from abusing those accused and/or convicted of crimes. Read each sentence: there’s no other way to interpret it that makes any sense at all. Incarceration and fines are what are allowed for here, clearly shown by the acknowledgement that bail must not be excessive, and this also shows that the accused are included in the umbrella here, because the convicted don’t get bail. Fines are indicated by the limit on excessive amounts. Aside from imprisonment and fines, nothing else is mentioned, and is what should set the obvious limits.

            You see? It’s not that vague after all. But it does require you to read what is there and consider what they are telling you. There’s no implied freedom for a judge to mutilate people’s genitals, or for prisons to become defacto rape palaces. These people had enough of that kind of abuse under the English.

            The term “unusual” is meant to stop “inventive” judges and the legislature from imposing punishment outside of the usual, which had already stopped including public shaming (stocks and posters and so forth.)

            The term “cruel” is *really* obvious. We might need to lock you up to keep others safe;
            this happens if you offer violence. We might need to fine you or demand restitution if you harm others property and recompense is called for. These are usual. Plucking your eye out, repeatedly drowning you (“waterboarding”), death by starvation… the cruelty and the complete lack of a need for such treatment are both obvious. IF you think about it and you aren’t a redneck idiot. Society should use the minimal tools required to manage its problems. That’s just common sense. The 8th codifies that. But you have to THINK.

  23. …..the right of the people to keep and bear arms, shall not be infringed.

    …congress shall make no law….

    ….the power to regulate commerce….

    Yep, its full of nebulous vaugaries.

    1. cruel and unusual punishment

    2. Do you guys ignore half of the 2nd amendment on purpose, or have you just never read it fully?

      1. Nothing is being ignored.

        If the intention of the authors of the 2nd Amendment were to recognize RKBA as only applying to members of the Militia, and not the People at large then it would have said as much.

        The fact is, when it talks about Rights, it unequivocally states that the Right belongs to the People and not to the Militia(or for that matter the State)

      2. Tony:

        The prefatory phrase of the 2nd amendment is a rationale; it contains no instructions, commands or limitations. It says, rather specifically, that all males of fighting age should be consistently armed. That’s *all* it says. It says it in support of the second phrase, which contains the actual instructions to the feds, and via incorporation (14th amendment), to the states: the right of the people to keep and bear arms (not simply guns, but arms) shall not be infringed.

        Learn how to read. When you’re reading a 200 year old document, study the meanings of the words as they were used at the time. This will wipe out that confusion that led your thinking that the prefatory phrase was being ignored, as well as your misunderstanding of what it means in the first place. With the 2nd amendment, it is particularly important to learn what they mean by both “militia” and “regulated.” Tip: Today’s usage is considerably different, and that’s your cue that a modern, uninformed reading will inevitably get the intent wrong.

  24. The main problem with the idea of a living constitution is that it makes the process for amending it irrelevant. Instead of going to all the trouble of passing and ratifying an amendment, just have an executive order changing the meaning of a word in all the dictionaries.

    1. But then why change the dictionaries, isnt english a living language?

      1. sorry, I meant living, breathing language

  25. OK that makes a lot of sense

    http://www.net-privacy.us.tc

  26. Uh, sorry, paragraph 6 is wrong. The fourteenth amendment doesn’t apply. Article II Section 1, say’s “natural born” not “naturalized” major difference. “Natural born” requires two citizen parents. Get it right.

  27. The US constitution is set in stone. It provides the conditions in which it can be changed, unfortunately, the idiots who swore to protect and defend it, shredded it through incompetence. Congress needs to go through every amendment, and adjust our laws accordingly. Then they need to tell Obozo he no longer represents the US government for violations of his oath.

  28. Death to the Constitution
    To really understand the Constitution one must read Monroe writings, to be there.
    To have a completely open mind on any subject is like the song says “your brains may fall out”.
    One must have a compass.

  29. The Constitution is metalaw; it contains the rules by which the laws passed by the Legislature can be evaluated as to validity.

    It is essentially the axioms of the legislative process; and as such, they don’t require justification, “just” consistent application. Treating them as a “living document” is like changing the rules in the middle of a card game. Bound to lead to some shootin’…

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  31. It seems to me there is a jump in logic that fails. Example: The Asian’s were here legally thus under jurisdiction, though not citizens. So the argument equates the race argument being defeated by the 14th ammendment into one of illegal vs legal only due to their skin color.

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  34. The US constitution is set in stone. It provides the conditions in which it can be changed, unfortunately, the idiots who swore to protect and defend it, shredded it through incompetence. Congress needs to go through every amendment, and adjust our laws accordingly

  35. The Constitution is metalaw; it contains the rules by which the laws passed by the Legislature can be evaluated as to validity.

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