at and t cellular

View in browser

I mentioned yesterday that last Thursday I forgot to send the email I'd written to you. Here it is -- better late than never.

Well, ol' Ketanji Brown Jackson, the Supreme Court justice surely chosen for her legal qualifications alone, is up to it again.

As you probably know, the Court is discussing birthright citizenship right now, and whether the Fourteenth Amendment requires it.

The contested phrase is "subject to the jurisdiction thereof": "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."

The phrase would appear to exclude birthright citizenship for illegal aliens, since the child's parents are subject to a foreign jurisdiction.

Well, Jackson tried to make this argument: "If I steal a wallet in Japan, I am subject to Japanese laws…. In a sense, it's allegiance."

Her point is this: if a tourist commits a crime in another country, that tourist is subject to that country's legal system. Jackson is trying to say that this makes the tourist (and by extension, an illegal immigrant, who is also subject to local police if he commits a crime) "subject to the jurisdiction thereof."

You will not be surprised to learn that Jackson has mistaken the meaning of the clause.

The meaning of the clause, which we can ascertain from the statements of its drafters, as well as from the Civil Rights Act of 1866, is that a person must be subject to the complete jurisdiction of the U.S. in order to be a U.S. citizen.

Now it's true that if a tourist comes to the United States from Iceland, that person does have to obey our laws, and that if he violates these laws, he will find himself up against U.S. law enforcement. But because he is not fully subject to U.S. jurisdiction, he cannot be punished for treason and he can't be drafted into the U.S. military. So such people are not under the complete jurisdiction of the United States and thus the clause does not apply to them.

Thomas Cooley, in his 1880 treatise The Great Principles of Constitutional Law in the United States of America, says that "subject to the jurisdiction" of the United States "meant that full and complete jurisdiction to which citizens generally are subject and not any qualified or partial jurisdiction, such as may consist with allegiance to some other government."

Likewise, in the 1884 case of Elk vs. Wilkins, the Supreme Court said that "subject to the jurisdiction thereof" required that someone be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."

We also read in that decision, "Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indian tribes, an alien, though dependent power, although in a geographical sense born in the United States, are no more born in the United States and subject to the jurisdiction thereof within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations." [Emphasis added.]

Did you catch that in noting that Indians were excluded from automatic citizenship, the Court said they were no more citizens than were the children of subjects of any foreign government born within the domain of that government? In other words, it was obvious to the Court that of course the children of people who were subjects of foreign governments weren't U.S. citizens.

The first time the Supreme Court mentioned the citizenship clause of the Fourteenth Amendment, though, was 12 years earlier, in the 1872 Slaughter-house Cases, just four years after the amendment was ratified. So just four years after the Amendment's ratification, the Court said that "the 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." [Emphasis added.]

But in the 1898 case Wong Kim Ark, decided some 30 years after the ratification of the Fourteenth Amendment, Justice Gray in a 5-to-4 decision suddenly adopted the opposite view, and by mere assertion. This is the case that birthright citizenship supporters point to, rather than the cases that were chronologically closer to the actual passage of the Fourteenth Amendment. But this isn't the first time, and it won't be the last, that the Court has been wrong.

As if to underscore the uselessness (I am being preposterously generous with that word) of official conservatism, the house conservative at the New York Times, David French, just unbosomed this gem:

He's got that right: if something is wrecking society, official conservatism will find a way to conserve that.

Well, as it happens, I know someone who was born in the United States not all that long ago, and to two citizen parents: a certain Henry Woods, born December 19, 2025.

Come meet the little fellow at

(1) my murder mystery dinner party in Philadelphia, which I will be declaring sold out by the end of this week; and/or

(2) the Tom Woods Cruise, the best time you will have all year by far, and the last such cruise I'm hosting for a long time.

The links:

https://www.WoodsMystery.com

https://www.TomWoodsCruise.com

Tom Woods