A Sudden Bout of Conservatism
It may seem unreasonable for a baby to get the golden ticket of American citizenship like a goal in football; you know, get that baby born over the border line and – TOUCHDOWN!
But you know, we’ve done it this way for a long time, while America really was the final frontier for those willing to put themselves on the line for liberty and opportunity.
The Fourteenth Amendment put it this way: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
But lately this practice of birthright citizenship has become a problem. With the onslaught of illegal immigration brought about by our recalcitrant political class, it has become an “attractive nuisance,” a dangerous feature if not a bug.
In self-defense, seeking relief, We the People are reexamining the qualifying phrase “subject to the jurisdiction thereof.” And so, the parsing has begun in earnest. Can this loophole be closed?
“No,” we’re told. This tradition should and must continue, jurisdiction was defined in 1868, and its definition can never change.
Well, that’s debatable.
I understand the conservative debate. It’s an honest one. The smartest people I know disagree about the meaning of this turn of phrase. But that’s okay. Conservatism as a rule is more concerned about getting things like this right.
It’s the liberals’ contentions that I find amusing.
For years we’ve been subjected to the liberal concept that the Constitution is an “evolving, living document.” We’ve had to abide by its every contortion, however far from the founder’s vision of federalism we may stray. The Constitution, which began as a contract of federal constraint, is “evolving” into an instrument of federal repression.
Now here, in this one phrase, we have a generalized exception to a rule, yet we get no liberal love for any “living” interpretation of it.
The phrase in question does not specifically say, for instance, “except for children of foreign diplomats.” Instead, it creates an exception based on the concept of “jurisdiction,” the definition of which was debated, the application of which was applied as conditions warranted. Meanwhile, conditions have changed, and I believe a new application may be in order.
If this phrase really exists only to exempt children whose parents were not subject to U.S. law, e.g. “foreign diplomats and enemy soldiers – as agents of a foreign sovereign,” then why couldn’t we apply it to our modern conundrum – an invasion of illegal immigration by subjects of a foreign sovereign and citizens of another nation which subverts the very concepts of legal control over immigration and nationalization? After all, the Constitution is not a suicide pact.
So while I find myself advocating for the flexible application of a single word, liberal proponents of a living Constitution suddenly find themselves strict constructionists in defense of birthright citizenship.
Suddenly, we have to live with this anachronistic definition from 1868 or go to hell trying. Suddenly, ancient dusty books are unearthed and cracked open to prove original intent.
If only such a fervor ever leads to the rediscovery of the Federalist Papers!
Do we really need to take these words exactly as they were applied when ratified? If so, I’m game, but then how about applying this rigor to the rest of the Constitution:
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These words specifically prevent the federal government from interfering with religious liberty.
Yet people are losing their livelihoods because they refuse to sell a cake to gays, a cake which isn’t even necessary for a wedding, a wedding which isn’t even necessary to be legally “married,” a marriage now suddenly declared a Constitutional right even though the Constitution does not provide for federal jurisdiction over marriage at all.
Yet people must provide birth control, abortifacients and pay for abortions, a result of Executive rule-making, courtesy of the “Affordable Care Act” even if these are against their religious convictions.
The Second Amendment states that “the right of the people to keep and bear Arms, shall not be infringed.” These words specifically prevent the federal government from controlling weapons in the hands of citizens.
Yet there are many places in this country where a person cannot legally carry a gun, even a concealed weapon.
Yet every manner of rule and regulation is placed between a citizen and his weapons in a flagrant attempt to limit gun ownership – through forms, licensing, registration, approval processes, restrictions, and the like. Like it or not, these arms taxes are just as unconstitutional as poll taxes.
The Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” These words couldn’t be any clearer.
Yet the EPA just “makes rules” that regulate everything under the sun. It’s an out-of-control bureaucracy with unconstitutional authority.
Yet the NLRB dictates rules of employment that people must follow. It controls us as much as “protects” us. People are not free to contract with each other as they wish. Jurisdiction over conditions of employment are nowhere to be found in the Constitution.
Yet “Common Core” is in de-facto federal control of education in this country. Education is a function of the states and is without any federal jurisdiction at all according to the Constitution.
There is no end to examples of this type. Every federal agency, rule and law needs to be reexamined to determine which implement constitutional mandates and which could be returned to state and local control.
So if you’re trying to tell me that one word in the Fourteenth Amendment is immutable, while the rest of the Constitution is really a living, breathing Kraken, to be loosed at will, then please forgive me if I don’t just bend over and say, “Please, sir, may I have another.”
Otherwise, I’m open to debate, but I’m thinking that a little bit of flexibility is warranted, in this one case, and under these circumstances.
First published at SavingOurFuture.com
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