Tag Archives: Scott v Sanford

State vs. National Citizenship—the Fourteenth Amendment, Section 1 must be Repealed—Time to Bite the Bullet, Folks!

Donald Trump has won a lot of national support for his position that “anchor babies” are not U.S. Citizens.  https://www.yahoo.com/politics/birthright-citizenship-where-the-2016-127093585661.html

Despite their appetite for socialism and socialist engineering of U.S. Demography, I think it is fair to say that few if any the Radical Republican Framers of the Fourteenth Amendment ever dreamt of or envisioned a situation where millions of “huddled masses” and “wretched refuse ” types of people would come to America just to have babies to enroll in schools and obtain other welfare entitlements. 

No, the purpose of the Fourteenth Amendment was to create a national standard for citizenship and civil rights, and to abolish the notion that the States of the United States were equivalent to the “States” who obtain membership in the United Nations.  

State citizenship was the weakest point of Cousin Abraham’s Northern policy during the War:  while many Radical Republicans wanted to call Robert E. Lee and Jefferson Davis, and every other Confederate Officer and Politician, a “traitor”, these charges simply would not stick for one single reason.  From 1776-1868, the individual states were the ones which established and determined citizenship, and so Lee was right to think of himself as a Virginian (about a 10th or 12th generation Virginian, in fact) by both the doctrines of ius solis and ius sanguinis.  Jefferson Davis might have been born in Kentucky, but he was a “naturalized” Mississippian.  Pierre Gustave Toutant-Beauregard was a 6th or 7th generation Louisianian, like Lee, either by ius solis or ius sanguinis

So Lee and Beauregard were unquestionably citizens of their own home states, and NOT of the United States.  They might have been employed in the armies of the United States, or, like Davis, also officers of the United States Government in its legislative (Senate) and Executive Branches (where Davis was Secretary of War).

But by every pre-War understanding, the Confederate leaders were not CAPABLE of betraying a Country WHICH NEVER EXISTED.  Like the States they belonged to, the Confederate Leaders could resign from the service of the Union, but in no legal or moral sense could they be called “traitors” to it, because (at least before 1868) the UNION WAS NOT A SINGLE SOVEREIGNTY.  Yes, indeed, quite simply, there WAS no such thing as “United States citizenship” prior to the Fourteenth Amendment—just a very generalized “American” citizenship which dependent on the collaboration and contribution of the ratifying states.  And that is why “Birth of a Nation” (by D.W. Griffith) was so correctly named: a collection of closely cooperating and allied free nation-states (small Jeffersonian Democracies) went to war with each other in 1861, and they were, afterwards, at gunpoint, forced into one single new country.

This was the debate that framed Barack Hussein Obama’s Presidency—so long as he could convince (fool?) a majority of the people into believing he was born in Hawaii, he was eligible, under the ius solis doctrine of the 14th Amendment, to be President.  But if a ius sanguinis standard should be applied, Obama’s rather famous Kenyan father stood as an absolute obstacle to his eligibility.  So as Dinesh D’Souza had shown in his brilliant movie Obama 2016, Obama’s goal as President was absolutely to abolish both the identity and nature of American society and culture.  Now the 44th President effects this transformation largely through emotionally manipulative lies and psychological manipulation, rather than democratic process or law.

But, indeed, the language of the Fourteenth Amendment’s “citizenship” clause is clear enough in making “soil” more important than “blood,” and has been consistently applied by the Supreme Court for over a hundred years to mean that literally anyone born in the United States, for any reason, automatically is an American Citizen.  This is obviously a disaster for the Country and many have written about it, including the mad Texan elf of Clearwater, Florida, Robert M. Hurt, Jr.:

Trump Is Right: Anchor Babies Do Not Rightfully Become US Citizens

http://bobhurt.blogspot.com/2015/08/trump-is-right-anchor-babies-do-not.html

What Hurt proposes is essentially changing the law by reinterpreting the law, and this often does not work so well—and could in fact be described as the source of much of modern America’s woes—allowing the Supreme Court to say that night is day and day is night is getting old, 62 years after Earl Warren became Chief Justice, 113 after Oliver Wendell Holmes brought Massachusetts “progressivism” to the Court, paving the way for the New Deal for whose eventual triumph (through popularity over constitutional rigor) Holmes might be considered a kind of Prophet….

Among Holmes’ most famous pronouncements is that, “an experiment, as all life is an experiment” (Abrams v. United States, 250 U.S. 616, 630 (1919)).  Allowing, or even encouraging, population replacement—the “Browning of America”—is among the left’s favorite long-term social goals and experiments, and (admittedly) all of us who oppose the Browning of America are classified by Salon.com, the Huffington Post, and the New York Times, among others, as vile racist reactionaries. 

But I can live with that.  As far as the way out, though, as far as how White America can preserve itself, I don’t think that verbal games such as Robert M. Hurt, Jr., Donald John Trump, and many others will work.  

No, I always prefer dealing with issues directly and in taking a “full-frontal” approach.  The Fourteenth Amendment resulted from a massive war of Centralization of Power.  The only politician in MY LIFETIME who ever addressed the problem directly was San Diego Mayor and later California Governor and Senator Pete Wilson: who directly advocated repeal of the citizenship clause of the 14th Amendment during the 1980s.  He is almost totally forgotten now, but when I was in Law School, I remember thinking his approach was sound.  Repeal of the Citizenship Clause would be clear statement that unlimited immigration and population replacement via “anchor babies” is and ought to be intolerable.

People don’t realize it, but prior to the War of 1861-65 between the North and the South, MANY NORTHERN STATES if not most of them, DENIED CITIZENSHIP of any kind to blacks.  (the last state to have such a law was Oregon, which literally made it simply illegal to “be a negro” in the State of Oregon— to enter the state at all, under any pretext, was cause for imprisonment, fine, and immediate removal to the state lines upon release.

While “the Underground Railroad” was very famous, you might ask yourself, “if Abolitionist sentiment was so strong in the North, (a) why was the underground railroad “underground” and (b) why did it end up in Canada?  The answer is that since Northern States had enacted “no black citizenship” laws, being “free” in most places meant nothing. 

The way history is taught and discussed in modern America, it’s not always quite clear, but Chief Justice Roger Taney, in Scott v. Sanford was actually adopting a MERGER of both the Northern and Southern positions in his (plurality against Freedom for Slaves by Crossing State Lines) decision in 1857 (every Justice on the Court rendered a Separate opinion in that case). 

Justice Taney said that no negro could ever be a citizen of the United States.  So he was ALREADY (by usurpation) establishing a Federal rather than a state standard of citizenship—THAT IS WHY THE FOURTEENTH AMENDMENT WAS ENACTED—the whole War Between the States and 13th, 14th, and 15th Amendments to the Constitution can be considered an effort to Overrule the “Dred Scott” ruling— but what many people forget is that Taney had already taken the critical first step by attempting to impose NORTHERN standards of Citizenship NATIONWIDE— ironically, this ruling (if it had been allowed to stand) might well, would almost certainly, have had the bizarre effect of “outlawing” or depriving tens of thousands of free (and many slaveholding) blacks in Louisiana of their citizenship, professional licenses, and right to vote. 

So the real problem was Taney’s (1857, pre-War) judicial “stealth” transition from allowing STATES to determine Citizenship to his rather clumsy attempt to impose a NATIONWIDE standard for citizenship.  The Fourteenth Amendment was the “Radical Republican” answer to this. 

Ironic, isn’t it?, that when properly understood, the Fourteenth Amendment was just as oppressive to the Northern States as to the Southern States.  Northern States could no longer ban black people. (Although the remarkable State of Oregon did not repeal it’s African-exclusionary laws until 1926, and only ratified the Fifteenth Amendment until the centennial of that State’s admission to the Union in 1959)(Oregon’s 1844, pre-state, pre-war position on slavery was that all blacks, free or slave, should be whipped and lashed twice a year until they left the territory).

Former California Governor Pete Wilson, by contrast with both Roger Taney and Donald Trump, understood that and would have returned to the individual states the power to determine citizenship by repeal of the “birth clause” of the Fourteenth Amendment.  One can easily imagine, almost too easily, how permitting the states to determine citizenship would be nearly equivalent to allowing secession—because Hawaii, for example, could pass a law decreeing that no “Howlees” (i.e. Anglo-Saxon or other European Whites) could ever be citizens of Hawaii—and so effectively dissolve the ties between that improperly annexed Island State and the rest of “the Union.”  (Hawaii currently has the most radical and politically “real” and active secessionist movement in the USA).

Even if the States COULD determine citizenship, the balance of the 14th Amendment still protected everyone “subject to the jurisdiction” of the United States with regard to Civil Rights…. so even if there were no “national standard for citizenship” there could still be a “national standard for civil rights.”
 

Chinese Teenager Sells Kidney For iPhone (an essay on rights to Life, Liberty, Property, and the Pursuit of Happiness)

I personally know at least one American who did this—sold his kidney, that is, albeit, as an adult; I consider that particular individual mostly normal, only slightly deranged, and in some ways quite exceptional, as I have written elsewhere.  The questions raised by the sale of kidneys regarding ownership and use of one’s own body, and the relationship to such things as abortion, child-labor laws, euthanasia, prostitution, stem-cell research, slavery, and the 13th Amendment, are very interesting: “We hold these truths to be self-evident: that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.”  If I-Phones, I-Pods, and I-Pads bring or confer either “true” Happiness or that nearly indistinguishable phenomenon known as “the illusion of Happiness,” are individuals, including minors, permitted to exchange body parts for “wealth?”  In what can only be called a case at the heart of the “substantive due process” debate in American Civil Rights/World Human Rights law, I ask this question and try to address it as follows:

http://uk.news.yahoo.com/chinese-teenager-sells-kidney-iphone-212819458.html

A Chinese teenager has sold his kidney to buy an iPad and iPhone.

:: Commentary on this video is in Mandarin

Xiao Zheng, from the country’s south-eastern Anhui province, is believed to have met a broker on the internet who said he could help him sell his kidney for £1,825 (Yuan 20,000).

He is said to have left a message for the middleman saying: “I want to buy an iPad 2.”

Zheng then travelled to Chenzhou in central Hunan province, where he had his right kidney removed in a hospital.

His mother told reporters she was devastated by the news.

She said: “When my son came home he had a laptop computer and an Apple phone.

“Where did all that money come from? Only when he could bear it no longer did he tell us.

“He said, Mum, I sold my kidney.

“When I heard it I felt like the sky was crashing down on our family.”

The boy’s mother alerted police after she found out but they were unable to locate the broker as his phone was switched off.

The hospital was not authorised to perform organ transplants, and claimed they had no idea about the surgery because the department had been contracted to a businessman from a neighbouring province, reports said.

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CEL NOTES:  Does anyone else think that this is among the most interesting and challenging news items recently?  A poor Chinese boy exercised his free will and made an interesting business deal which resulted in a slightly diminished life expectancy to him.  How does the (forbidden) sale of body parts among the living relate or compare to the (much encouraged) willing of body parts for premature death (encouraged on state drivers’ licenses all over the United States, for example)?  How does the sale of body parts relate to prostitution?  To abortion?  To the use of aborted fetus tissue in stem-cell research?  How do all of these things relate to Slavery and the Thirteenth Amendment?

An old political riddle in the mother country runs like this: (1) We all agree that the Power of Parliament is absolute, correct?  (2) We all agree that Parliament can delegate some of its power by statute, correct?  (3) Historically speaking, Parliament derived its power on the one hand from the King and on the other hand from the people, correct? (4)  So now that we know that the Power of Parliament is Absolute, that Parliament can delegate some of its power by statute, and that Parliament historically derived its power from the King on the one hand and the people on the other, can Parliament now by statute give away or delegate all its power, to the King, for example?  Or to a “President”?  Or to the “European Parliament?” would be a more likely modern problem.

Likewise the individual human being: we posit that he is free (albeit that teenage “minors” such as the Chinese teenager in this story are supposedly under their parents and/or the State’s special protection in loco parentis or parens patriae).  We posit that every individual can give away some significant portion of their freedom by contract (i.e. a contract of employment, or of marriage, or of service in the military, or in the clergy, etc.).  We would doubtless concede that models can and do often lose weight as part of their employment, or have plastic surgery or “implants” or collagen shots or “whatever” to enhance their careers and “marketability.”  We would recognize that, whether as a matter of conscious choice or not, athletes, sports stars, and manual laborers and body builders can and do alter their bodies gain wait and build muscle mass as part of their employment, either by healthy eating or vitamins, or training programs.   So we clearly recognize that “freedom of choice” includes control over one’s own body.

“Freedom of Choice….Control over one’s own body”—can we be far from the discussion of abortion?  The Latin legal doctrine ius in re aliena now comes to mind: “right in the affairs [or property] of another.”  Is an individual’s body an aspect of his or her life, liberty, or property?  When does another person have rights in your life, liberty, or property?  A father clearly has interest in a wanted child: he is the father, and has every right to protect his child, even from a (post-natally) abusive mother (although—based on personal experience—“good luck!” if the abuse is anything less than actual murder).   But some seem to think that either the father or society at large has certain rights to decide when a child is “wanted” or “unwanted” prenatally.   The monstrosity of internal contradictions and inconsistent, incoherent doctrine which is U.S. Federal abortion law, starting with Roe v. Wade is just a nightmare if you’re trying to make sense out of why a two-to-three month old unwanted fetus has either less or more “rights” than a six-seven month old unwanted fetus.  No Supreme Court decision in the history of the United States, except possibly Scott v. Sanford or Brown v. Board of Education were ever more clearly judicial usurpations of power to fill the gap where the “overtly” political branches had either abdicated or abrogated their own power.

The debate over abortion and what to do with “fetal tissue” has become more intense and aggravated by the apparent extreme utility of fetal tissue and body parts in stem-cell research, but the conundrum that “from death proceeds life” is as ancient and iconic as “the Tree of Jesse” that grows from either the loin of the dead ancestor of the House of David or, as a blood dripping Cross, from the hill called “Golgotha” (Calvary: the Hill of the Skull).

So how can we deal with Xiao Zheng’s sacrifice of his long-term marginal well-being for his perception of his own salvation?   AND YES, Yes, there are blasphemers who, before its release even, referred to the I-Phone as “the Jesus Phone”—right above the now seemingly ubiquitous adds for “Travel Girls” the on-line Urban Dictionary has these entries: “The iPhone, one of the most hyped products ever and occasionally called the “Jesus phone” like it was the Second Coming” and “The iphone by apple. A phone that makes you feel like Jesus. In fact Jesus probably has one himself.”    http://www.urbandictionary.com/define.php?term=Jesus%20Phone

Abortion is of course one directly analogous “freedom” to mutilate and maim body parts (whether we like it or not, that’s what it is) which decreases “life expectancy” at the margins… at the very least, and yet through stem-cell research it could lead to longer life and greater health, cures for Alzheimers among those who are unambiguously still alive—there being so much debate in the abortion arena about “when life begins.”

Abortion, relating to human sexuality, raises the questions of prostitution and white slavery more easily than the sale of a kidney.  Most states permit minors, at least under certain circumstances, to get abortions without parental consent.  So why should minors not sell their kidneys?  Or even their eyes?  (Fantine’s repeated sale of her beautiful good healthy teeth was one of the stories in Victor Hugo’s Les Miserables  (the grim 19th century novel, not the Andrew Lloyd Webber Musical) which has, frankly, given me nightmares my whole life—that along with stories of people being buried alive in ordinary cemeteries are about on the same level).

To what degree can we say that, without the reproductive overtones of abortion and prostitution, the sale of a kidney is more like “ordinary employment”—like the work of models, body builders, athletes, sports stars, or even manual laborers—who make physical sacrifices and adjustments in their bodies for purposes of making a living?

So if we were to permit Xiao Zheng to sell his kidney and thus reduce his life-expectancy, let us then ask whether he can sell his entire body and life?  Under the 13th Amendment, he cannot literally sell himself into slavery—involuntary servitude for life—but could he contract for a lifetime job?  Now, obviously, some people (rarely these days, but a few, like the Queen of England for instance, and some Justices of the U.S. Supreme Court) keep the same job from appointment or accession until death—but I suppose we assume that this is completely voluntary because abdication or resignation are permitted.   Could one sign a contract for life employment without possibility of quitting?  It has been established by precedent that no Court would ever “specifically” enforce such a contract, by compelling performance, at least not in the U.S. after and in light of the 13th Amendment.

But how about the choice for euthanasia or suicide then?  That is analogous to Parliament giving away all its power, and it is most disfavored.  But we allow abortion—in fact, our courts for going on 40 years have vigorously protected it as a fundamental right.  Minors can have abortions.  So should minors be allowed to make money by selling body parts?  Minors can be body builders, models, and athletes, even sports stars, and engage in body-altering manual labor.  Some people die as a result of diets, or excessive labor, or voluntary body-alteration.  Can society intervene to prevent one kind of behavior but not the other?