CITIZENSHIP CLAWS

“The Citizenship Clause was meant to apply to former slaves, not just anyone whose parents happened to be in the United States when they were born,” I heard a male voice yell on the other side of the book stack.

I was in the library, looking for a self-help home repair manual, when my ears were assaulted by this disturbance of the enforceable quietude of my location. I then heard a much quieter voice that I recognized, saying, “Settle down, Dean, we’re in the library.”

Giving way to curiosity, I peaked around the bookcase to see Socrates standing in front of a dark haired man whose face bore the expression of some agitation. I greeted Socrates, who turned around and returned the greeting. The man, whom Socrates had called “Dean,” didn’t take his eyes off of Socrates. He spoke again in the same disruptive volume. “This leftist crap is going to be the ruination of our country. We can’t have people sneaking across the border, dropping babies, and calling them citizens. It’s that simple.”

At that, a librarian appeared who said in what I interpreted as the most polite tone she could manage, “Excuse me, gentlemen, if you need to have this discussion, I would appreciate it if you could use one of the conference rooms.”

“Yes, of course,” Socrates replied. “I apologize for the disturbance.” With that, he began to walk toward the nearest empty conference room.

Dean didn’t budge at first, and I got the impression that he didn’t really want to have a discussion about his position, but simply wanted to state his opinion. I asked him if he was going to follow Socrates, and he replied, “I guess so, but I don’t really see what there is to discuss.”

He began walking in the direction of the conference room, and I followed. When we were half way to the destination he turned and asked, “Why are you following me?”

“I like to watch people argue with Socrates,” I replied.

Dean seemed annoyed, but he didn’t say anything. When we entered the conference room, I closed the door, and Dean said to Socrates, “Your friend wants to watch our discussion. I guess he doesn’t have anything important to do at the moment.”

Socrates laughed. “Jacob never has anything important to do.”

Dean apparently caught the humor of the remark, but only smiled faintly. He looked at me as though he wanted to say ‘I believe it.’

“So, what makes you so certain that the Citizenship Clause of the 14^th Amendment [1] was meant to apply only to former slaves?”

Dean scowled. “Isn’t it obvious? It was adopted right after the Civil War. The slaves had been permanently freed by the 13^th Amendment [2], and the purpose of the Citizenship Clause was to make it clear that they were now citizens.”   

“But isn’t it true that the source of the Citizenship Clause was actually English Common Law?”

“What do you mean?”

“Yes, Socrates,” I interjected, “what do you mean by ‘English Common Law’? I don’t understand the term.”

Dean laughed derisively. “Socrates, you’ve been hanging out with some stupid people these days.”

“There’s nothing stupid about admitting you don’t know something,” Socrates replied, “especially when you ask to be educated.” Then, turning his attention to me, he said, “The common law was the system of law they had in England, mostly based on court precedent. Every state except Louisiana has adopted it as their law, I guess you could say their law in default, except to the extent it has been changed by American or state law. It’s also the reason our courts rely on precedent, because that was characteristic of the common law system.”

”Thanks, Socrates,” I said. “And thanks for explaining that I’m not stupid.”

Socrates grinned. “I didn’t say that you’re not stupid. I simply said that you aren’t stupid because you asked a question.”

“After this conversation is over, we need to talk about you getting a job,” I retorted.

Socrates turned to Dean and asked, “Now what was your question?”

“I asked what you meant by saying that ‘that the source of the Citizenship Clause was actually English Common Law.’”

“I take it you don’t recall that in the case of United States v. Wong Kim Ark [3], the United States Supreme Court said that the Citizenship Clause, since it doesn’t define its pertinent terms, must be interpreted in light of the common law?”

“Okay, so what? That was an 1897 case.”

“Has it been overruled?”

“No.”

“So, are you saying that Supreme Court cases have some kind of expiration date?”

“No, but maybe today the Court would look at the same facts and reach a different conclusion.”

“Well, let’s see,” Socrates said. “Do you recall that the case involved a man of Chinese ancestry who had been born in San Francisco?”

“That’s right. And his parents were Chinese citizens.”

“And you also know that the Court ultimately ruled that the man was an American citizen because he was born in the United States.”

“True.”

“Now isn’t it true that the Court reached its conclusion based on English Common Law?”

“Right again.”

“And isn’t it also true that the same case pointed out that, according to English Common Law, that a fundamental principle of the common law with regard to nationality was birth within the allegiance of the king, that is, born in England or anyplace subject to the king’s jurisdiction?”

Dean laughed. “We don’t have kings anymore.”

“We didn’t have a king at the time of the Wong Kim Ark case either, but the Court apparently didn’t see that as a relevant consideration, and upheld the common law rule of birthright citizenship.”

“Aha! But the question is whether Wong Kim Ark was subject to the jurisdiction of the United States, and that is something the Court will have to consider in any future case.”

“You don’t recall that the Court did consider that, and said that Wong Kim Ark would not be subject to the jurisdiction of the United States only if he was a child of foreign ambassadors or a child born to foreigners during a hostile occupation?”

“Well, I think today the Court should rule that anyone born of illegal immigrants isn’t subject to the jurisdiction of the United States.”

“How would that work? If someone born of illegal immigrants commits a crime, don’t our courts have jurisdiction to try him?”

“Okay, I suppose.”

“So, it seems that in order to get the ruling you want, the Court will have to ignore precedent, the common law, and the plain meaning of the constitutional text. What am I missing?”

“I don’t know, common sense maybe?”

“The Constitution says 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 wherein they reside.’ What about common sense tells you that the Constitution doesn’t mean what it says?”

Dean thought for a moment, then said, “Okay, well maybe it’s time to change the law.”

“How?”

“Amend the Constitution so that those born in the United States aren’t citizens if their parents are in the country illegally.”

“I suppose that means that hospitals would be required to check the immigration status of the parents of babies born in their facilities.”

“Sure, why not?”

“So, it would be a good idea for expecting parents to have their birth certificates handy.”

“Sounds good to me.”

“And if they can’t produce them, what should the hospital do? Hold on to the newborn until the parents produce proof of citizenship?”

“No, the parents can take their baby. The baby just won’t be considered a citizen until the parents can produce their birth certificates.”

“And what will we have accomplished under this new regime?”

“We’ll stop this scam of illegal immigrants having babies in our country and making them citizens.”

“And what will that do for us?”

“It will discourage illegal immigrants from doing that.”

“And why is it a bad thing if they do that?”

“Because they’re creating citizens who shouldn’t be citizens.”

“And why shouldn’t they be citizens?” 

“Because their parents are in the country illegally.”

“Don’t you see that you’re arguing in circles? Your argument is that babies born to illegal immigrants shouldn’t be citizens because they’re born to illegal immigrants.”

Dean smiled. “You know what I’m saying, Socrates.”

“What are you saying?”

Dean stood up. “You know what the problem is, and I shouldn’t have to explain it to someone as intelligent as you.” And with that he left the room.

When Dean closed the door behind him, I said to Socrates, “I think he means that children born to illegal immigrants will increase the percentage of citizens without European ancestry.”

“What’s so great about European ancestry?” Socrates asked. “Didn’t both world wars take place in Europe?”

 

—Jack Quirk

YOU HAVE THE BODY

I walked into a coffee shop to find Socrates and Steve engaged in an intense debate; intense, I say, because Steve was turning red with rage, a typical reaction to Socrates. I wasn’t sure I wanted to join them inasmuch as Steve looked as though he was prepared to resort to fisticuffs. But the question was promptly removed from my discretion when Socrates spotted me at the counter making my order. “Jacob,” he said. “You’ve come at good time. Join us when you get your coffee.”

Noticing that Steve’s face was still red, and that he didn’t look up to greet me, I asked, “Is it safe? It looks like you’ve driven Steve to the edge of sanity.”

Socrates laughed. “He hasn’t attacked me yet.”

“Yeah, well I’m getting close,” was Steve’s response.

“Hold up there, Steve,” I said. “Maybe I can give you a hand after I get my coffee.”

Steve snorted, giving indication that he doubted that I would be much help. He was right, of course, as far as helping him in an argument with Socrates. But I hoped I could defuse the situation so that Steve wouldn’t pop a blood vessel.

My order was simple, having ordered a coffee with cream, so I was able to join them at the table quickly. “Okay, Socrates,” I said as I sat down. “How are you disturbing the peace today?”

“Steve, here, thinks that the President can suspend the writ of habeas corpus,” Socrates replied.

“Pardon my ignorance,” I said, “but remind me what the writ of habeas corpus is.”

Steve laughed with disdain. Socrates only smiled, and said, “It’s a court order directing that a person in custody be brought before the court to determine the lawfulness of his detention. It’s a process we inherited from England.” [1]

“And I’m saying that the Constitution provides that the writ can be suspended in certain emergencies,” Steve said.

“And I’ll ask you again,” Socrates replied, “Doesn’t the Constitution specify what those emergencies are?”

“Yes it does,” Steve said. “It says that the writ may be suspended ‘when in Cases of Rebellion or Invasion the public Safety may require it.’” [2]  

“Well, are we experiencing a rebellion or invasion?”

“We’re certainly experiencing an invasion. There are any number of illegal immigrants in our country.”

“Do you think that’s what the Framers of the Constitution meant by an invasion?”

“It must be one of the things they meant.”

“Just so we’re clear,” Socrates said, “you’re saying that an influx of illegal aliens are included in what the Framers meant by an invasion.”

“Absolutely!” 

“But how could that be if there was no such thing as an illegal alien at the time that provision of the Constitution was enacted?”

“Come again?”

“There wasn’t such a thing as an illegal alien when the Constitution was first adopted, was there?”

At that, Steve took on a smug expression. “Oh really? What about the Alien and Sedition Acts?”

“What about them?”

“You said that there was no such thing as an illegal alien when the Constitution was adopted. But the Alien and Sedition Acts were enacted during the Adams administration in 1798, and John Adams was the second president. They must have had an idea of illegal aliens to pass the Alien and Sedition Acts.”

“Well, you do know that the Alien and Sedition Acts consisted of four statutes?”

“That’s right.”

“And one of the statutes was the Naturalization Act of 1798?” [3] 

“That’s right.”

“But that act extended the residency requirement for naturalization from five to fourteen years, am I right?”

“That’s true.”

“So, that act had nothing to do with immigration, but naturalization.”

“Okay, so what?”

“So, if aliens had a residency requirement to become a citizen, they had to be present in the United States for the required period of time. And there was nothing in the statute that mentioned entering the United States illegally.”

“True, but there were three other statutes that were enacted under the Alien and Sedition Acts.”

“Okay, let’s look at the Sedition Act. [4] Do you recall what that was about?” 

“Of course. The Sedition Act criminalized the defaming of the federal government, the president, or Congress. That should still be the law today.”

“You’ve lost my vote,” said Socrates. “But the point is that the Sedition Act had nothing to do with immigration, illegal or otherwise.” 

“That’s right. But with the other two statutes I think you’re going to have a harder time making your case.” 

“How so?” 

“Well, there was the Alien Friends Act, which authorized the president to order any alien out of the country when he deemed it necessary for the public safety.” [5] 

“True. But in order for them to be removed out of the country didn’t they have to be in the country to begin with?” 

“Naturally.” 

“And was there any indication in the statute that the people to be removed were illegally in the country to begin with?” 

“No, the statute didn’t deal with that.” 

“But isn’t our discussion about illegal immigrants? Isn’t an illegal immigrant someone who enters the country illegally?” 

“Yes.” 

“So, the Alien Friends Act is irrelevant. And isn’t the remaining statute, the Alien Enemies Act, which is still effective law unlike the others, equally irrelevant?” [6] 

“Why do you say that?”

“Doesn’t the Alien Enemies Act deal with citizens of countries that the United States is at war with?”

“Not just at war, Socrates, but also when there is an ‘invasion or predatory incursion.’ We are certainly being invaded by illegal immigrants.”

“Well, now you’re begging the question,” Socrates said. “But in point of fact, doesn’t the statute require that the ‘invasion or predatory incursion’ be ‘perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government….’”

“Okay, what’s your point?” 

“Are we being invaded by another nation or government?”

“We’re certainly being invaded by citizens of other countries.” 

“That’s not the requirement. The requirement is that the invasion be by a foreign nation or government. It must be an act by a foreign country, not just some of its citizens.” 

At this point Steve was beginning to turn purple. “The statute still authorizes removal of those citizens.” 

“Indeed. But, again, to be removed don’t they have to already be in the country?” 

“Of course they do.” 

“But there’s nothing in the statute that indicates they were illegally in the country to begin with, is there?” 

“No. But I don’t see your point.” 

“So, the Alien Enemies Act is equally irrelevant. And the question at hand is whether the criteria for the suspension of habeas corpus is met in the present circumstances.” 

“And I say we’re being invaded.” 

“But how can you legitimately say that illegal immigration constitutes an invasion for purposes of the Suspension Clause when there was no such thing as illegal immigration when the Constitution was adopted?”

“Alright, fine. But it doesn’t matter. Article III courts, the ordinary federal courts, aren’t allowed to be involved in immigration cases.” [7] 

Socrates laughed. “If that were true, what would be the point of suspending habeas corpus? If the Article III courts aren’t allowed to be involved in immigration cases, and it’s immigration cases you’re worried about, wouldn’t that mean you already have what you want? Why do you need to go further?” 

“The courts don’t seem to realize the limits of their authority. They get involved with immigration cases even though Congress has specifically prohibited it.” 

“Where are you getting this from?” 

“What? That the courts are to stay away from immigration cases and let the executive branch handle it? It’s the law.”

“You’re sure that the courts don’t have any appellate function in immigration cases?” [8]

“Aren’t you familiar with Department of Homeland Security v. Thuraissigiam, a Supreme Court case?” [9] 

“Tell me about it.” 

“They laid out the applicable law in that case. If an illegal alien is caught trying to cross the border, the alien gets a hearing before an immigration judge, who, by the way, is part of the Executive Branch. The alien can even apply for asylum. And he can even appeal the decision of the immigration judge to the Board of Immigration Appeals.”

“And don’t forget,” Socrates said, “that the alien is generally entitled afterward to a review by the Court of Appeals.”

“What’s your point?” 

“You said that Congress enacted a law that says that Article III courts are to keep their hands off of immigration cases. But the Court of Appeals is an Article III court, isn’t it?”

“Yes, but the courts are specifically not authorized to review whether an alien is actually ineligible to be admitted to the country or is entitled to relief from removal.” 

“But isn’t habeas corpus designed for the purpose of challenging the applicant’s custody status?”

“Yes.”

“But didn’t the Supreme Court in the case we’re talking about point out that Thuraissigiam wasn’t challenging his custody status?” 

“That’s right.” 

“So, the writ of habeas corpus wouldn’t apply in that case anyway. So how does it help your position?”

At this point Steve started raising his voice. “See here, Socrates! No matter what you say, the president gets to decide when the privilege of the writ of habeas corpus should be suspended. So, all your blather is meaningless.”

“The president gets to decide, not Congress? Are you sure about that?”

“Yes I’m sure. Abraham Lincoln suspended the writ during the Civil War.”

“But that met with significant opposition, didn’t it? So much so that Lincoln eventually acquiesced and obtained congressional approval?”

“Nonetheless, he did it.”

“Even a great man like Abraham Lincoln can make mistakes. And had he read Justice Joseph Story’s Commentaries on the Constitution, it would have been hard for him to come away with the belief that the power to suspend the writ rested with him rather than Congress, am I right?” [10]  

“That was Joseph Story’s opinion.”

“Alright, and were you aware that Chief Justice John Marshall said in passing, in the case of Ex parte Bollman, that it is for the legislature to decide if the writ of habeas corpus should be suspended?” [11]

“If he said it in passing, then it isn’t valid precedent.”

“But John Marshall was a Founding Father. Wouldn’t you think he had a good idea what was intended by constitutional provisions?”

“He wasn’t infallible.”

“But where is the Suspension Clause in the Constitution?” 

“Article I.” [12]  

“Right you are. And does Article I vest power in Congress or the president?”

At this point Steve started shaking. He stood up and kicked his chair over, startling everyone in the coffee shop, particularly me being the closest to him. He stormed out without saying another word.

I started to laugh. “Good job, Socrates,” I said.

“That was unexpected,” Socrates said calmly.

“I take it that Article I vests power in Congress,” I ventured.

“Indeed it does,” Socrates replied. 

 

--Jack Quirk