I wish that when CNN news anchors have on a practiced prevaricator like state Senate President-elect Russell Pearce to discuss something as specific as the 14th Amendment's guarantee of birthright citizenship, they would at least read up on the subject. Or failing that, have a Constitutional expert or historian on hand to bat this tee ball out of the park.
But during a recent appearance on CNN, Pearce rolled over his interlocutor Jessica Yellin with half-truths, historical inaccuracies, and outright falsehoods, many of them Pearce and other nativist ne'er-do-wells have repeated ad nauseam. All of these myths, canards, and racist fantasies have been thoroughly debunked at length. The evidence is not difficult to find online.
Dealing with Pearce is like dealing with a Holocaust denier, a "birther," or a 9/11 "truther." You have to be familiar to some degree with the specious mendacities such looney tunes will spit, so that you can better cram their skulls into a verbal head press and squeeze till their eyeballs pop.
Alas, Pearce's interviewer was clearly unprepared. You could tell that she knew he was wrong, but she did not know enough to counter his bull.
As I've dealt with much of this nonsense in my blog post, "Russell Pearce, Enemy of the U.S. Constitution," and in other blog posts and Bird columns, I won't go over all the same ground again here. But I will touch on some of Pearce's more blatant whoppers, and maybe someone at CNN will catch a clue next time they decide to give this neo-Nazi-hugging racist the time of day.
On the "original intent" of the birthright citizenship provision, Pearce had this to say:
"They made it very clear," Pearce said of the 14th Amendment's framers, "on the debate, on the floor, Senator Howard, who wrote the 14th Amendment said this amendment does not apply to aliens or foreigners."
Pearce is speaking of Senator Jacob Howard of Michigan, one of proponents of the 14th Amendment, who introduced language that would become this part of 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.
This is what Howard said about that language back in 1866:
"This amendment, which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
Constitutional scholar Garrett Epps, whose book Democracy Reborn tells the history of the amendment's drafting, has addressed the twisting of Howard's words in The Atlantic online, though it was Ann Coulter doing the twisting at the time, not Pearce.
"In order to inject unclarity into the debate," he wrote, "opponents of birthright citizenship resort to a favorite technique: partial and distorted quotation from legislative debates."
"The larger problem, though, is that the quote doesn't say what Coulter claims it says. It says something that is true as a matter of law today: children of accredited foreign diplomatic personnel, even if born on U.S. soil, are not birthright citizens. Why not? Well, because of diplomatic immunity, these children are not `subject to the jurisdiction' of the United States. Like their parents, children of diplomats are not subject to arrest or civil suit, even if they commit crimes or torts on U.S. soil. That was the law in 1866 and it's the law today, and that's what Howard is talking about."
On to another laughable Pearce line:
"I'm amazed at these folks who think they've read the constitution," Pearce tells Yellin at one point. "Apparently they've not read the debate..."
Pearce means the debate over the birthright citizenship language from 1866, which you can peruse, here. But if Pearce had read the debate as he claims to have done, he would know that the Senators did in fact discuss the effect of the amendment on such communities as the Chinese and Gypsies.
Pennsylvania Senator Edgar Cowan complained that the fallout of the language would be that children of such groups would be citizens by birth on American soil. California Senator John Conness agreed, and asserted this would be a good thing.
"The proposition before us, I will say, Mr. President," stated Conness,"relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States."
So much for what Epps likes to call the nativists' "phony originalism." The original intent of the 14th Amendment citizenship clause was that all those born on U.S. soil, unless they were enemy combatants, foreign diplomats, or Indians living on their reservations, would be American citizens.
(I should note that all Native Americans were granted citizenship by Congress in 1924, a side issue nativists grasp on to, but does nothing to advance their cause. Ho, cited below, addresses the issue in the position paper I've linked to, and you can read more there.)
Rather than the U.S. Supreme Court's 1898 Wong Kim Ark decision, upholding the birthright citizenship provision, Pearce likes to cite previous Supreme Court decisions. the Slaughter-House cases, and Elk v. Wilkins, each of which touch tangentially on the issue at hand.
James C. Ho, a lawyer who clerked under Supreme Court Justice Clarence Thomas and served as chief counsel of the U.S. Senate Judiciary Subcommittees on the Constitution and Immigration under the chairmanship of Senator John Cornyn (R-TX), deftly dealt with this argument in a 2006 position paper. He wrote:
Repeal proponents seek refuge in earlier judicial precedents. As detailed by the two dissenting justices in Wong Kim Ark, the Court did suggest a contrary view in the Slaughter-House Cases (1872), as well as in Elk v. Wilkins (1884).
First, repeal proponents cite a single sentence in Slaughter-House, stating that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." But that case did not actually implicate the Citizenship Clause, so this passage is pure dicta. Moreover, the Court immediately backed away from this assertion just two years later in Minor v. Happersett. That same year, Justice Field (a Slaughter-House dissenter) adopted jus soli In re Look Tin Sing, wholly disregarding the Slaughter-House dicta. And the Court itself, in Wong Kim Ark, disparaged the Slaughter-House statement as "wholly aside from the question in judgment, and from the course of reasoning bearing upon that question," and "unsupported by any argument, or by any reference to authorities."
Elk v. Wilkins fares no better. Elk involved Indians, not aliens, and it merely confirmed what we already knew from the 1866 Senate debate: that Indians are not constitutionally entitled to birthright citizenship. Repeal proponents hasten to point out that references to "allegiance" can be found in Elk, just as they can be found in the Senate debate. But again, these stray comments do not detract from the analysis. To the contrary, Elk specifically endorsed the view, later adopted in Wong Kim Ark, that foreign diplomats are uniquely excluded from the Citizenship Clause. That is unsurprising, for both Elk and Wong Kim Arkwere authored by the same justice: Horace Gray. Repeal proponents thus find themselves in the awkward position of endorsing Justice Gray's majority views in Elk but distancing themselves from Justice Gray's majority views in Wong Kim Ark. Such tension can be avoided simply by taking Elk at face value - and by accepting Wong Kim Ark as the law of the land.
Finally, there's Pearce's empty-handed assertion that "a majority of Americans support a correcting of the amendment."
Um, not really. An August CNN poll found the country split down the middle on the matter, with 49 percent favoring a Constitutional amendment preventing "children born here from becoming U.S. citizens unless their parents are also U.S. citizens."
Most people have never given any thought to the matter, and know very little about the history of the amendment. So such numbers do not surprise me, though they are hardly the mandate to which Pearce lays claim. Not that I would want such things as the Bill of Rights, habeas corpus, or the 14th Amendment decided by a poll, in any case.
Still, a little informed debate would go a long way in educating people. It's irresponsible of CNN to put this nativist mad dog on TV without rebuttal. Ignorance unopposed can sound convincing to the uninformed, which is why some bloggers out there actually think Pearce knows what he's talking about.
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