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.

Libertarian Island III: Coercion and Degrees of Freedom

Where we left off shipwrecked Ann, whom I have called a “left- libertarian,” has not been able to convince shipwrecked right-libertarian Bob that it’s only his wrongheaded ideology that makes him want to paddle away from Isle One, with its easier and more abundant life, towards Isle Two.

Is a Non-Amendable Constitutional Provision Legitimate?

Is Impeachment Mandatory?

The distinguished Harvard Law professor Cass Sunstein has recently argued, in a widely published opinion piece, that if a US president has committed “Treason, Bribery, or other high Crimes and Misdemeanors” then Congress is obligated to impeach. https://news.yahoo.com/impeachment-mandatory-130024433.html.  The “support and defend the Constitution” clause of their oath of office imposes the duty on upon each and every member of the House of Representatives to vote to impeach if the constitutional predicate is satisfied. 

“Her” Computer Consciousness: Can an Artificial Intelligence Be In Love?

The 2013 movie Her, for which Spike Jonze, won an Oscar for best screenplay, raises the question whether one day soon there could be artificial, machine based, consciousness.

Mitchell's Memo on Ford and Kavenaugh

“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that…I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee.”

That may well be right that the evidence currently in the hands of the Committee would not be sufficient for a prosecutor to conclude that Kavenaugh is guilty beyond a reasonable doubt. This, however, is irrelevant.