Birthright citizenship and the 13th Amendment

This is not a typo. Of course it is the 14^th Amendment that contains the citizenship clause and so is front and center in every speech, press release, sound bite, newspaper editorial, law review article, and tweet about the birthright question. In a not very close second place in the citation of legal sources on the issue is the jus soli (“right of the soil” or “law of the soil”) birthright citizenship of the British common law, its incorporation into the American common law, and its infamous and unprincipled treatment in antebellum courts.

 

Much farther behind are citations to the 13^th Amendment. In fact, a little internet research, admittedly very little, turned up no references to the bearing of the language of the 13^th Amendment on citizenship. Yet that amendment, which preceded the 14^th by only a few months through the early stages of the amendment process, includes the clause “subject to their jurisdiction.” That is, subject to the jurisdiction of “the United States.” The phrase in the 14^th Amendment on which the birthright legal revisionists base their claims is “subject to the jurisdiction thereof [the United States].” It usually makes good sense to suspect that two very similar legislated phrases may well be related in meaning where the time period is the same, the social and political circumstances the same, the drafters the same, and the voters the same. This is surely not less so when the two pieces of legislation were closely related part of a single political program – here, reconstruction.

"high Crimes and Misdemeanors" as a Term of Art

In the interpretation of enacted law terms of art, for example, “third degree of consanguinity,” have a special place.  Just how special is debated: the degree of the specialness, the ways in which are special, and the special methods for unpacking their meaning. 

The term of art status of “high Crimes and Misdemeanors” may become salient.

Electoral College Democracy

Some failing arguments in defense of the Electoral College, and a look at two possible steps forward without constitutional amendment. Possible, but not likely.

The 2nd Amendment Right to the Open Carry of Swords and Shoulder Launched Missiles

As everyone knows the Second Amendment is not about guns. The objects of the right it constitutionalizes are “Arms.” Swords, bayonets, and hatchets, as well as muskets, were the arms of the Revolutionary War. Current arms of individual use include body armor, hand grenades and shoulder rockets.

The fact that shoulder rockets are a tad dangerous and of little socially approved private use surely has some bearing on their constitutional status. A frank recognition of this fact will show the supporter of the open carry of large clip semi-automatics that his mode of constitutional interpretation is not so different from those who contend that the carry of said semiautomatic, and perhaps also of a Saturday night special, is outside constitutional protection.

Normative Words in the Constitution: Capital Punishment and Due Process

Some constitutional interpreters, including some who regularly put on robes, argue that capital punishment must be constitutional under the Eighth Amendment because nearly all the drafters, and the great majority of the ratifiers, would not have thought it "cruel and unusual." This reasoning is exactly as sound as that producing the conclusion that there would be no Fifth Amendment "due process of law" objection to restricting the jury to white males in trying a criminal action against a female African American.