14th Amendment and Birthright Citizenship. Source of Original Debate in the Senate (May 30, 1866)

 If you are interested in the primary source of the debate/discussion on birthright citizenship, below is that source. Starts in the center of the page under "Reconstruction" and goes on for several pages.

Many of the quotes you have seen, for and against the proposition.   The May 30th session of the US Senate seems to be the session that has prompted the most attention in the debate.  Context matters!

Note:  Sen Howard is the main author of Section 1 of the 14th Amendment.  

If you read the next 10 pages or so, you will get the gist of the substance of the debate

https://digital.library.unt.edu/ark:/67531/metadc30867/m1/12/

Happy Fathers Day....or is it?

On any given day, I grade myself on a sliding scale from Harry Chapin's "Cat's in the Cradle" to Dan Fogelberg's "Leader of the Band."  

I hope I am in the Fogleberg Quartile more than the Chapin, but as long as I am above the Median, I guess I am ok.  :)

14th Amendment debate Smackdown 1866 style.

Been trying to understand the original 14th Amendment Citizenship debate from a primary source (Congressional Globe).  Came across this exchange in the 39th Congresss (May of 1866) during the debate as to the extent Southern insurrectionistswould be prevented from holding office (Section 3 of the 14th Amendment).

I assume tensions are running high. Senator Trumbull (Republican from Illinois) takes Senator Doolittle (Democrat from Wisconsin) to task. Doolittle does not like it .

I sense Trumbull's retort (statement in Red, explanation highligted in Blue) to Doolittle has some resonance today.

Link to this debate HERE

What is "Treason"? No, it's not at all "I know it when I see it"...

Treason is a word that has been used too loosely lately.  

Here is what the Constitution says about it:

"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted."

This article, "On Treason and Traitors," explains the historical meaning AND intent of the concept in language even I can understand.

The following is basically the bottom line (bold/underlined emphasis is mine) from the article:

""No American charged with treason has been convicted for conduct related to anything other than direct support of an enemy at war with the United States (for example, the Confederacy in the U.S. Civil War, the Japanese Empire and Nazi Germany in World War II). Thus, if the U.S. is not in an armed conflict with another belligerent party, it is factually and legally impossible to be guilty of treason. As Larson points out in this blog post about alleged collusion between Trump and Russia in his first term, “working with foreign countries to harm the United States is not part of the definition.”

Crimes, but Not Treason

In conclusion, the following acts are often the basis for claims of treason; they might be unlawful (violations of some other statute, like espionage) but are not “treasonous,” and the perpetrators are not “traitors” no matter how disloyal they may seem to the public or to the president:

• Careless leaking of classified, top-secret, war plans onto the internet or an unsecured messaging app (this is a possible crime, but not treason);
• A lawfully initiated investigation into a political leader’s “official” actions (this does not qualify as any crime);
• Being “un-American" (this is not definable, much less a crime);
• Expressing sympathy, or donating time and money, to the victims of an ally’s war effort (this is a form of protected speech); or
• Undermining American economic interests for the sake of another nation out of incompetence (not a crime) or corruption (possibly a crime, but not treason).

14th Amendment, Section 1: "Birthright Citizenship". Duelling Senators

 I have read a lot about the controversy around "Birthright Citizenship".  Folks for and against it use quotes from the 1866 debates in Congress (House and Senate) to support their position.  Seems you can find both sides in the debate.

Below are screenshots of the actual record of the debate in the Senate just before the vote to approve the language of the 14th Amendment.  This document can be found HERE.  The debate I am interested in starts on page 2890 of the document.

If you have read anything on the issue, as you read these 3 pages, you will recognize various quotes that have been used extensively to support positions regarding birthright citizenship.

In the middle of the first page you will see "Reconstruction".  Senator Howard introduces the amendment and gives brief commentary. There you will find a famous/infamous quote I see used very often.

After Howard's comments, you will find Senator Cowan's comments.  He unabashedly takes the side of limiting the scope of birthright citizenship.  You will find several quotes from him that have made it into contemporary criticism of birthright citizenship.

After Cowan, you will find Senator Conness takes the wider view of birthright citizenship.  He unabashedly takes the view that children born "of all parentage whatever" are citizens of the United States.

BOTTOMLINE: This is the official record of the debate. Best one read from the PRIMARY source rather than cherry-picked quotes to justifiy a particular point of view.

"Ipse Dixit": My new favorite Latin term that gets to the point in two words...

I came across this Latin term while reading a Supreme Court case (I lost track of which one it was). I think it captures most conversations about politics and economics, as well as any other current event discussion, as of late.

"Ipse Dixit"

Ipse dixit is a Latin term that translates to "he himself said it." In legal contexts, it refers to an assertion or statement made by an individual based solely on their own authority , without any supporting evidence or proof. It is often used to criticize arguments or claims that rely solely on the speaker's authority, rather than objective evidence or reasoning.

"Privilges and Immunities": What are they good for?

In the coming days, we all will get a lesson on the meaning of the 14th Amendment, Section 1.  This will be entirely because of the Trump Administration's appeal to the Supreme Court regarding the injunctions put on his Executive Order on "Brithright Citizenship".

AMENDMENT XIV

Section 1.

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first sentence (in BOLD) is the sum of the clause in question in the Executive Order.  

What I am interested in with this short post is the 2nd sentence, clause 1 (highlighted in YELLOW)

What the heck are "privileges and immunities"?  I mean, what are they, EXACTLY?  If you do a Google search, you will find articles and academic papers on the subject, but no exhaustive list of them and lots of seemingly "fuzzy" examples and/or definitions.  Seems like a catch-all provision.  

In several things I have read, it is suggested that an excerpt from a Supreme Court case, Corfield vs Coryell in 1823, gives the best overall explanation. It appears to be the "gold standard" explanation used in many articles/reasearch papers:

""The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain notions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. . . .

Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. . .

Is this concept important? I would say so. So important that the origin of the 3 words is a part of the US Constitution; (see HERE)  HOWEVER, it has a different overall meaning in its intent and execution.

""Chesterton Fence: Don’t Destroy What You Don’t Understand!"".

This seems appropriate given the "when you are a hammer, everything is a nail" mindset of The Dept of Govt Efficiency (DOGE).

Regardless of how one feels about what is going on with DOGE, this short video on the "Chesterton Fence" gives structure to one perspective for decision-making and the intended/unintended consequences of those decisions.

A good lesson for students as a cautionary tale of making hasty decisions, whether personal or those that affect a wider audience.  

Here is an excellent explanation of the "Chesterton Fence".  

US Economy by State vs the EU by Country: Fair Comparison?

The US economy is 33% larger than the EU economy.  The population of the US is approx 345 million. The EU's population is approximately 450 million----23% larger than the US. 

Calculate GDP per person for each geographic area

Calculate your US State GSP (Gross State Product) and Individual EU Country GDP, on a per-person basis

Make comparisons.

Questions: What do these calculations say about the distribution of that "product"?  Does it matter?

Link to US Economy. Link to EU Economy

"Birthright Citizenship"---7 words vs 6 words. Why this change in construction?

 Below are two clauses that contain words within a phrase that will be beaten to death in the coming months as the nation mulls the meaning of "Birthright Citizenship".  Highlights are mine. 

BOTH of these documents were proposed and discussed months apart in the SAME Congressional session by the SAME people in 1866.  The 14th Amendment was proposed and passed but not ratified until 2 years later.

Why use certain words to form a phrase in one document and not the other? Why not just "copy and paste" the first phrase, that was cussed and discussed, into the second one (the 14th Amendment)?

Why the change in the construction of the phrase? There has to be a reason, right?  Guessing we will hear lots of opinions in the coming days.  

Civil Rights Act of 1866

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;"

Fourteenth Amendment (passed congress in 1866 and adopted in 1868)

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. 

 

"Herein Granted": Two words in the US Constitution make all the difference in the Power of the Executive

Gotta admit I never really paid attention to the significance of the two words "herein granted" in Article 1 (Legislative Branch) but conspicuously absent in Articles 2 and 3 (Executive and Jusdicial Branches, respectively).

Source: Constitution Center

Turns out there were competing views on the extent of power the Constitution gives to a President.  Alexander Hamiltion and James Madison had dueling views on the matter of interpreting Sections 1 of Articles 1 and 2.

These excerpts are from HERE.  Up first Hamilton:

"""Hamilton and Madison.—Hamilton’s defense of President Washington’s issuance of a neutrality proclamation upon the outbreak ofwar between France and Great Britain contains not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II. Hamilton wrote: “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the Executive Power shall be vested in a President of the United States of America.’ The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.” “The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used.

The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ In that which grants the executive power, the expressions are, ‘The executive power shall be vested in a President of the United States.’

The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”"""

Madison's response, which as I understand it, suggests that Hamilton's reading would bestow way more power on the Executive than intended:

"""Madison’s reply to Hamilton, in five closely reasoned articles, was almost exclusively directed to Hamilton’s development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison’s principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation’s neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. “Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”  The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III."""

An interesting court decision by Chief Justice Howard Taft put the distinctions in context and gave Hamilton's view a the benefit of the doubt.

The Myers Case.—However much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States 22 to have carried a majority of the Court with him in establishing the Hamiltonian conception as official doctrine. That case confirmed one reading of the “Decision of 1789” in holding the removal power to be constitutionally vested in the President.23 But its importance here lies in its interpretation of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal power, as vesting all executive power in the President, the subsequent language** was read as merely particularizing some of this power, and consequently the powers vested in Congress were read as exceptions which must be strictly construed in favor of powers retained by the President. Myers remains the fountainhead of the latitudinarian constructionists of presidential power

 **By "subsequent language" it means the Sections in Article 2 that follow Section 1 enumerating some powers to be the province of the Executive Branch.

The above excerpts are from HERE.  I edited the excerpts in a variety of ways...

"Trump vs US" Supreme Court Case on Executive Immunity. Maybe a helpful visual?

Helps me to put a picture of what I see as the result of the Executive Immunity case recently decided by the Supreme Court (case decision HERE).

Here is the succinct summary of what the Supreme Court held:

Below are a couple of images I created to give students (or others interested in the issue) a nominal starting point to understand the result. I make no claims it is a perfect representation.  I think, for the most part, the logic of what is "held" written above is shown in the two images below.

The first one describes Executive authority BEFORE the case cited above.  Presidential authority is defined in Article 2 of the Constitution. The "fuzzy perimeters" of that power have been molded by historical events but have been expansionary in history and dictated by events (civil war, WW 1 and 2, 9/11, to name a few).

The second image below represents what I think happens with Executive Authority going forward.  It HAS to happen, right?

Executive power increases (White area).  The fuzzy "outer perimeter" (Roberts words) of what is acceptable within the Executive branch increases (Brownish area) and the level of criminality that an Executive can be held responsible for decreases (Red area).

It is this brownish area I think Chief Justice Roberts addresses with "And he is entitled to at least presumptive immunity from prosecution for all his official acts.".  Not defined before in any Supreme Court case and the contours of it remain "fuzzy" BUT no question is an enlargement of Executive Branch permissible acts or actions.

ACT Reading Test Stratgies. My nominal suggestions.

I do a little ACT tutoring.  I have watched just about every YouTube video on every ACT subject tested.  Everyone has their own take on how to approach each test, which leads to a wide variety of opinions.  

The Reading Test (and Science test), as opposed to the English and Math tests, seems to have fewer moving parts overall.  The English test has a million grammar and sentence structure rules and Math, well, you know...

Professional tutors (ain't me!) are split on how to approach the reading test.  Some say go to questions first, and some say read the passage first. Some say read and annotate in the margins first, some say that takes too much time.  What to do?

I honestly don't know of a specific "go-to" strategy.  Below I will post my suggestions. I think they are useful if one is not the greatest/fastest reader in the world.  I think these provide some structure on how to approach the reading passages.  

Use at your own risk!

Additional Tips:

Read the source information at the very beginning of the passage. Depending on the topic, there can be useful information about the passage overall. It is good to know where it is going to take you before you start skimming the questions.

Don't read in any detail the answer choices that are wordy overall.  A question that has just one or two-word answer choices is worth a skim just to get the overall feel for the question.

Yes, this prep work takes valuable time. I think the time you save in having the questions mapped out will be more than worth the upfront investment of time.  Plus, it may reduce some of the reading you have to do overall.  

ACT does not care about how you arrive at an answer, nor do they care if you liked the passage or not!

"The History of the Chevron Doctrine"--things you may not have known...

Two cases regarding the so-called "Chevron Doctrine", Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were argued this week at the Supreme Court. 

This very short article helps explain the issues in the original case that established the doctrine.

In short, when a statute's (law) verbiage comes into question, a court uses a "2-step" process to decide the case:

The "two-step" refers to the two stages of the review process:

1. Determine whether Congress expressed clear intent on the specific issue at hand in the statute. If it did, the court simply applies that meaning. If it’s not clear, go on to Step 2.
2. If the statute is ambiguous, then the court defers to the agency's interpretation if it is "based on a permissible construction of the statute." This is the "Chevron deference" stage.

 Source: FindLaw

One side says the doctrine is necessary so government agencies, that employ professionals with expertise Congress does not have, can use existing statutory language to respond to challenges that are not explicit (but implied or through precedent) in the statute. 

The other side says it gives government agencies too much power to interpret statutes beyond what is in the text of those statutes. The meanings of statutes should be interpreted by the judicial branch, not "unelected bureaucrats" or the Executive branch.

14th Amendment Section 3: Does anyone know what it really means?

 I divided up Section 3 by each subject referred to and used clause #5, "who, having previously taken an oath", as the mid-point where the dependent clauses that follow refer back to the prior clauses. 

There is a high level of parallelism/symmetry with the clause(s) but not a perfect correlation.  For example, "elector of the President and Vice President" is explicit in the first half but not mentioned in the second. Perhaps because Electors used to come from the State Legislatures, therefore subject to #8? 

This amendment poses more questions than answers.  If someone tells you they know for sure what it means and how to interpret it, they are not being completely honest.  My opinion: I dunno.

Here are some questions I have seen asked about this clause that apparently have no definitive answers.

Is this clause “Self-Executing”? Does it require a finding by the Legislature/Congress (House and Senate)/Court (Supreme or other)?  Is the President entitled to “Due Process” under this Section?

          Are the President and VP subject to the terms of Section 3?

Is the President considered an “Officer” even though he occupies an “Office”? Here are a YES and a NO perspective on the issue. HERE is another view on the Legislative history.

Is including “electors of the President and VP” (for Electoral purposes) a check on the President and VP and naming them explicitly not necessary?

What were the debates around wording at the time of the writing of this section?  Why was the President and VP not mentioned EXPLICITLY?

The wording is different in each oath. WHY? Note word "support" is not in the Presidential Oath. Some say this is significant.

Many questions, few solid answers...