Feathered Bastard

Russell Pearce's "Anchor Baby" Bills, John Eastman's Homophobia, Adam Driggs' Political Courage

As you likely know by now, state Senate President Russell Pearce's unconstitutional, un-American, immoral, and illegal effort to undermine the birthright citizenship provision of the 14th Amendment to the U.S. Constitution ran into a double buzz-saw Monday in the state Senate judiciary committee, chaired by Republican Ron Gould.

Senator Gould is the primary sponsor of two "anchor baby" bills in the Senate: SB 1308, which would give the governor the power to make compacts with other states recognizing a two-tiered system of birth certificates, one for those the bill deems U.S. citizens, one for the children of "illegals"; and SB 1309, which would create a fantasy "Arizona citizenship," which conveys no rights or privileges, but would likewise be denied to the kids of the undocumented.

Wingnut Republican state Representative John Kavanagh has corresponding bills in the House, and though this issue has long been Pearce's pet cause, Kavanagh and Gould are carrying water for Pearce because Pearce, as Senate President, is supposed to be engaged in more important things, though Mexican-bashing remains his primary focus.

Sadly, as I was on deadline Monday, I couldn't attend the hearing on the Senate bills in the judiciary committee, but I watched all of it via streaming video on the Arizona Legislature's Web site, and I found it riveting for several reasons. 

First was the dual opposition to the bills that came from Democratic state Senator Kyrsten Sinema and Republican state Senator Adam Driggs. Both did stellar work in reducing Gould's star witness, conservanut "legal scholar" John Eastman to mincemeat. 

Gould probably figured he was bringing in a ringer to defend his wacky bills, the purpose of which, Gould admitted in committee, was to engender a constitutional challenge to the 14th Amendment that the U.S. Supreme Court would hopefully take up.

But Eastman failed on several fronts, and both Driggs and Sinema peppered Eastman with questions about the bills that he couldn't answer: like the status of children born to women with U-Visas (i.e., immigrant women who have been victims of crimes), and how those with dual citizenship would be affected by the new laws.

By the end of Eastman's testimony, other Republicans had jumped into the fray, one asking if it was guaranteed that the U.S. Supreme Court would grant certiorari. Eastman was forced to admit there were no such guarantees. In fact, it's more likely that the court would simply indicate that the states have no say in such matters.

Which, of course, they don't. States don't get to decide who are U.S. citizens. The Civil War put that issue to rest. Perhaps some nutbars in this Legislature and elsewhere would like to re-fight the Civil War, Russell Pearce among them. But most people are not so mentally deficient.

In the end, Gould held the bills because his own Republican-dominated committee was not going to grant them a do-pass recommendation. So now the bills will be heard yet again, this time in the appropriations committee, on Tuesday, February 15 at 2 p.m.

Keep in mind the judiciary committee's hearing on undermining the 14th Amendment took close to three hours. Maybe we'll get another three-hour show. Both Gould and Sinema are on appropriations, so a rematch is on.

Will Eastman again fly in from Claremont, California, where he's director of the ultra-conservative Center for Constitutional Jurisprudence? If so, I wonder if anyone will bring up Eastman's bigoted, homophobic remarks, as reported by the Sacramento Bee, and by New Times' sister paper OC Weekly.

In 2010, the Bee reported that Eastman, who was then running in the GOP primary for California Attorney General, didn't much like gays. Bee editor Dan Morain wrote the following:

Eastman wields a sharp pen of his own. In June 2000, he wrote that just as slavery and polygamy were "twin relics of barbarism" in the 19th century, "two new indicia of barbarism arose during the 20th century: abortion and homosexuality."

"Abortion is barbaric because it deprives some human beings of a right even more precious than liberty, the right to life itself. And homosexuality, like polygamy, has for centuries been thought to undermine the institution of marriage and the civil society that rests on it."

Eastman sides with Boy Scouts of America, defending the organization's exclusion of gay troop leaders, and saying that Boy Scouts teach "the long-established view that extramarital sexual relations and homosexual conduct are immoral."

Also in 2010, OC Weekly's R. Scott Moxley commented on Eastman's moonhowlin' address to a group of California Republicans who think the Republican party ain't conservanut enough:

If gays and lesbians are ever allowed to marry in California, Eastman said citizens have a right to react to "insufferable" government policies by "rising up and abolishing those governments!"

Delegates--the majority were white and over 55--gave thundering applause.

"That's what this campaign is about!" he said.

Before the committee, Eastman took the radical and decidedly minority view that the 14th Amendment's birthright clause doesn't say what it actually says and that we should look to the original intent of the framers of the 14th Amendment to understand what it actually means.

Here's the sentence in question from 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."

Despite this plain language, Eastman would have us believe that "subject to the jurisdiction thereof" is actually referring to allegiance owed to a sovereign nation, and that this was the intent of the framers. Fourteenth Amendment scholar Garrett Epps refers to this as "phony originalism."

It's phony because if you read the 1866 debate on the floor of the U.S. Senate over this language, it's clear that both proponents and opponents agreed on the same thing: That all children born on U.S. soil -- save for those of diplomats, Indians or enemy combatants -- would be U.S. citizens under the amendment.

You can read that debate for yourself, here

As Michigan Senator Jacob Howard said at the time when introducing the language,

"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."

So, according to the original intent of the framers, "every other class of persons" other than "foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States" are citizens by birth on American soil. 

When opponents of the birthright language exclaimed that this would make the children of Gypsies and Chinese nationals citizens by birth, Senator John Conness of California agreed, but argued that this was a positive.

Conness stated:

"The proposition before us, I will say, Mr. President, 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 Eastman is wrong about the 14th Amendment, and he attempts to twist the 1898 Supreme Court ruling United States v. Wong Kim Ark, which upheld birthright citizenshipas being far more narrow than its obvious scope. Read the entire decision, here, and you will see that the majority opinion expounds upon the common law tradition of jus soli, the right of the soil, which was in practice in the U.S. years before the 14th Amendment was ratified.

Senator Sinema obviously did her homework, and she spent a lot of time going over the history of jus soli during the committee hearing. She's to be applauded for this and her questioning of Eastman, who was clearly put on the defensive and was at times red-faced as he answered.

But, to me, Senator Driggs, who also happens to be an immigration attorney, was the true hero of the day. Because for a Democrat to oppose 1038 and 1039 is not a risky proposition. For a Republican to do so, under the threat of the ethnic McCarthyism that presently commands the Arizona Republican Party, is a heroic act.

"I'm a conservative Republican," Driggs stated at the beginning of the hearing. "And I'm a little confused because I take very seriously the oath that I raised my hand to when I took office to uphold the Constitution. And I will not take any challenges to the U.S. Constitution lightly."

Such statements, and the fierce grilling Driggs gave Eastman on the specifics of how such measures as 1038 and 1039 would be enforced, meant more because Driggs is a Republican. And unlike other Republicans, who agree with him but stay silent, he spoke up and defied the nativist strain in his own party.

As Arizona is currently a one-party state, a change in the extreme anti-immigrant climate here must come from within the state GOP. 

Dems have a role, don't get me wrong. They must push and stand in the way of the nativist tide. But when GOPers like Driggs make that same moral choice, they give this state real hope that one day it will wipe away the stain of hatred and bigotry that the likes of Pearce and his allies want to be an indelible mark.