The Federalist Blog

James Ho in a Wall Street Journal op-ed repeats common misunderstandings over what “subject to the jurisdiction thereof” under the Fourteenth Amendment was declared to mean by its primary framers, the United States Attorney General and the Supreme Court and concludes any effort by States to refuse citizenship to children born to undocumented aliens to be unconstitutional.

Ho never addresses what the primary framers declared the words to mean but instead singles out a minor discussion between Senators Cowan and Conness over concerns of whether “race” of the parents would play a role in citizenship before the primary authors, Senators Trumbull and Howard discussed the legal effect of the words. By ignoring the legal effect of the words “subject to the jurisdiction thereof” Ho had no difficulty in asserting a “foreign national living in the United States is ‘subject to the jurisdiction thereof’ because he is legally required to obey U.S. law.” In other words, Ho like many argue “subject to the jurisdiction thereof” requires only obedience to U.S. laws by merely setting foot within some State of the union.
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I’m often asked if the United States as a nation was founded upon Christianity and the answer is clearly no because religion was not an object of concern delegated to national government by the member States who formed it. National government was formed with very few and limited objects such as war, uniform bankruptcy laws, foreign commerce, etc. All other imaginable concerns dealing with everyday domestic affairs of the people remained with the people themselves within their individual and independent States.

A more accurate view would be current national government was formed by very Christian member States whose governments openly and freely observed Christian teachings and continued to do so afterwards.

I’m afraid overbearing domestic airport security is really not about serious domestic threats to airline safety but more about modern liberal political correctness that says profiling is wrong. Because profiling would be considered a greater tragedy then what occurred on 9/11 by Civil and Human Rights Activists, everyone is left to equally endure the humiliation of full-body screening and painful boarding delays.

President Obama has stated the government’s case as:

At this point, the Transportation Security Administration, in consultation with our counter-terrorism experts, have indicated to me that the procedures that they’ve been putting in place are the only ones right now that they consider to be effective against the kind of threat that we saw in the Christmas Day bombing.

What Obama didn’t say was the Christmas day bomber, Umar Farouk Abdulmutallab, aka the “Underwear bomber,” was a Muslim Nigerian citizen whose flight did not originate domestically but from overseas.
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Not intending to revisit what has already been written following the Coons/O’Donnell Senate debate over church and state under the First Amendment, I do though want correct an erroneous assertion that Jefferson’s use of the phrase “wall of separation between Church & State” is somehow improper or erroneous. The fact is there is nothing wrong with Jefferson referring to the Establishment Clause as a wall between church and state in his famous Danbury Baptists letter. Jefferson was simply describing in a colorful way disestablishment, which in simple words means religion can no longer be an auxiliary of government control.

The problem isn’t Jefferson’s choice of words in referring to disestablishment for which was the purpose of the religious clause, but how the court misconstrues the word “establishment” for the word “endorsement” thereby implying the people through their governments can’t acknowledge religion, period. The Establishment Clause has been judicially transformed to such an extreme extent that it now means any religious symbol on public property can be judicially declared a violation because it might be seen as some official government endorsement of religion.

The Supreme Court does just what the First Amendment set out to prohibit, federal control over religious matters of the people. The Fourteenth Amendments principal framer, Rep. John A. Bingham, stressed how Christianity and morality was an important principle for State legislatures to recognize after its adoption.

More insulting is the fact the court had to invent the fiction of substantive due process in order to rewrite “Congress shall make no law” to “No State shall make no law” in order to apply to the States, something that never was successful through seven attempts to amend the Constitution post Fourteenth Amendment to make the Establishment Clause in some form or another applicable against the States.

The words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” means in simple words that no power was invested in Congress to established a national church and to compel by law worship of its tenets, which in return disallows the “free exercise” of religion. This is the “wall” the First Amendment erects Jefferson was referring to. Two days after Jefferson wrote his “wall of separation” metaphor he attended church services held in the House of Representatives where the Speaker’s podium was used as the pulpit.

This wasn’t no isolated event either as he continuously attended church services held on government property during his two terms as President. President Madison also attended church services in the House on Sundays. Even the Treasury building was used as a church on Sundays where John Quincy Adams was known to attend.

Jefferson wrote in his Second Inaugural Address that the Constitution left religious matters “under the direction and discipline of State or Church authorities acknowledged by the several religious societies.” James Madison describes what disestablishment accomplishes under the First Amendment:

Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform.

The First Amendment does not disable Congress from recognizing or participating in religious practices but only prohibits Congress from creating by law a religious establishment and compel its worship and thus, “prohibiting the free exercise” of other religions. Churches established by law were well known to the colonists since nine of the thirteen colonies prior to the revolution had state established churches by law. At the time of the adoption of the First Amendment, half still maintained official religious establishments.

An establishment meant government control and indoctrination of religious tenets through governmental authority. Establishment could be either coercive or intolerant as Baptist found in Virginia before Jefferson penned the Bill for Establishing Religious Freedom in 1786.

Arguments made against establishment were that government tended to corrupt religion, was contrary to freedom of conscience and disestablishment would have the effect of revitalizing Christianity. As Madison put it, “morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.”

The first question under any establishment controversy will be whether there has been a law enacted that establishes a government controlled church or a law compelling all persons to worship a certain religious sect. Questions over whether religious symbols on public property are a First Amendment violation is pure rubbish. The First Amendment will historically always be a check against government establishing a religion and declaring by law that it is the only religion that can be worshiped (restraining the free exercise of worshiping other religions) and not anything to do with acknowledging religion and its teachings.

Related: Thomas is right, Establishment Clause Jurisprudence ‘in Shambles’

The New Jersey Committee to Recall Robert Menendez v. Nina Wells addressed the question whether it is proper to recall a siting U.S. Senator by holding:

The matter is ripe for adjudication and the text and history of the Federal Constitution, as well as the principles of the democratic system it created, do not allow the states the power to recall U.S. Senators. Those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional.

Personally I can’t find any constitutional objections since a recall simply creates a “vacancy” to be filled per State law and the Seventeenth Amendment does not prohibit recalls or expulsions. The argument a Senator is elected for a six-year term, and thus, must serve it completely isn’t very persuasive since a term length only defines the duration of the term and not a unconditional personal entitlement for a Senator to serve an entire six-year term uninterrupted regardless of resignation or bad acts.

The Seventeenth Amendment does not say anything about “resignations” but who will doubt a Senator is free to resign before his term expires? Hamilton in his speech on his ideas for a new government listed three events that could create a Senate vacancy; death, resignation and removal from office.

I think a Tenth Amendment argument for the validity of a recall carries more weight in supporting a recall then arguments of it being unconstitutional.

Summary: The Second Amendment served as an important declaration that said armed citizen militias were preferred over standing armies during times of peace.

I wanted to take the opportunity today to add some late commentary over the recent court holding in McDonald v. Chicago that extended the protection of an “individual right to possess a firearm unconnected with service in a militia” against state infringement which had been an open question since the earlier gun case of District of Columbia v. Heller. Specifically, I want to address the obvious errors of fact used to support an “individual right to possess a firearm unconnected with service in a militia” under the Second Amendment in these decisions.
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Yesterday the Third Circuit ruled against the City of Hazleton’s Illegal Immigration Relief Act Ordinance, which set out to fine landlords who rented to undocumented immigrants and would have penalized companies that employed them. Additionally, tenants would have had to show proof they were citizens or lawful residents, register with the city and pay for a rental permit in order to receive an occupancy permit.

Chief Judge Theodore McKee of the appeals court wrote in a 188-page decision:

Deciding which aliens may live in the United States has always been the prerogative of the federal government…To be meaningful, the federal government’s exclusive control over residence in this country must extend to any political subdivision. Again, it is not only Hazleton’s ordinance that we must consider. If Hazleton can regulate as it has here, then so could every other state or locality.

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Need proof the 39th Congress who debated and adopted the Fourteenth Amendment did not consider State laws of marriage to come under the amendment?

Former rebel States under Reconstruction were required to frame new constitutions and have State statutes that conformed to the provisions of the Fourteenth Amendment. Constitutions and questionable laws had to first receive approval of the House and Senate before any of the former rebel States could be restored. This included lengthy floor debates over each States new Constitution and any questionable statutes found.

Section 1707 of the Georgia Code provided, that “the marriage relation between white persons and persons of African descent is forever prohibited, and such marriages shall be null and void.” Neither Congress nor the US District commander found any objections to this code and it remained on the books after Georgia’s Constitution and laws was found to conform with the Fourteenth and Fifteenth Amendments by those who framed them.

The court came to same conclusion in Ex rel. Hobbs & Johnson, § 13, 14.

As I have mentioned before, there is mass confusion today over equal protection and equal rights. The courts would be well advised to learn the difference between these two distinct principles.

Yesterday in the case of Perry v. Schwarzenegger, U.S. District Judge Vaughn Walker enjoined California’s Proposition 8 from being enforced on the grounds California has a “constitutional obligation to provide marriages on an equal basis.” Judge Walker finds California’s anti-SSM law violates both the Due Process and the Equal Protection clauses under the Fourteenth Amendment. Here are some of my quick preliminary thoughts on the ruling.

One difficulty with the Due Process route is that it requires treating marriage as a fundamental right is that proceedings before some court of law has never been a requirement for entering into marriage. Walker writes, “[t]o determine whether a right is fundamental under the Due Process Clause, the court inquiries into whether the right is rooted ‘in our Nation’s history, legal traditions, and practices.'”

And here lies a problem: Being able to freely choose one’s marriage partner has never been viewed as rooted in the Nation’s history or “legal traditions, and practices.” Marriage laws have long restricted who can marry who, when and under what conditions. Elena Kagan in a letter to Senator Specter in March of 2009 said she could find no constitutional right to same-sex-marriage in the Constitution:

Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Judge Walker’s Equal Protection argument didn’t make any sense in light of the historical evidence behind the meaning of the words that says it never had anything to do with gender equality in public law. If it had meant equality in such things as sex or gender in all laws then there would never have been any purpose for, say, the Nineteenth Amendment (woman suffrage).

Neither the chairman of the Reconstruction Committee, Rep. Thaddeus Stevens or Senator Jacob M. Howard introduced the Equal Protection Clause to their respective chambers as having anything to do with social equality, but everything to do with equality in laws and proceedings for security of person before tribunals of justice. Hence, why the Equal Protection of the Laws were presented to both the House and Senate as limited to “offenders” of law.

This explains why the Fourteenth Amendments chief sponsor, Rep. John Bingham, generally used the word “tribunal” and laws of Due Process when discussing the concept of Equal Protection under the Fourteenth Amendment and not general civil laws. In 1870 he made this very clear when he said no State may deny the Equal Protection “not of its laws, but of the laws,” i.e., law of the land (Due Process).

Additionally, he also explained that the Equal Protection of the laws had always been part of the Constitution under the Fifth’s “no person” and not the Magna Charta’s “freemen” shall be deprived of life, liberty or property without Due Process.

Constitutions and statutes of former rebel States were required to conform to the requirements of the Fourteenth Amendment before being readmitted into the union under reconstruction. To accomplish this, former rebel States were required to repeal their “black codes” (black codes were criminal codes that singled out blacks for special punishments), however, laws of miscegenation and segregation remained and were never objected to by framers of the Fourteenth Amendment. The reason is easy to understand in light of the fact restricting marriage to opposite gender or race has absolutely nothing to do with creating “class legislation” that unequally applies or denies laws of proceedings for security of person.

Judge Walker’s attempt to invalidate Prop 8 under Due Process and Equal Protection clauses is weak, and no amount of testimonial evidence offered will gloss over this fact. The fact is Due Process or Equal Protection has never been required for the qualifications of marriage or the issuance of a license or ever viewed as anything to with security of person before the law.

I’ll leave the final word to Justice Powell from his concurrence in Zablocki v. Redhail, 434 U.S. 374 (1978):

The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people … State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A “compelling state purpose” inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.

Related: Historical Meaning Behind ‘Equal Protection of the Laws’

One of the core arguments advanced by the Justice Department in a lawsuit against Arizona’s immigration law is that under “our constitutional system, the federal government has pre-eminent authority to regulate immigration matters.” The government further states this “authority derives from the United States Constitution …”

Here is the problem with this: There is zero evidence the States had ever surrendered their authority over internal State immigration matters to the federal government. The Constitution’s enumerated powers say nothing about immigration. What power not expressly granted means it was expressly withheld.

I know some will say the power to make uniform rules of naturalization is the power grant over immigration. This argument, however, could never pass the smell test because immigration and naturalization was always viewed as two separate and unrelated subject matters. Immigration deals with movement of people while “uniform rules of naturalization” deals solely with citizenship requirements.

Immigration has always been a primary concern and exercise of the States themselves rather than a federal concern after the adoption of the current Constitution. Additionally, States continued to maintain their own immigration bureaus and immigration commissioners within select countries.

When Congress made treaties that touched on immigrants within States it was made clear that State law dictated the rights and liberties of the immigrants and not anything national law could because such laws would never be in pursuance to anything authorized by the Constitution. State immigration matters was never viewed as anything having to do with foreign affairs but only with internal State affairs, which explains why the court avoids the immigration question all together through its “plenary power” doctrine.

The court is fully aware of the fact there is no vested concern over internal State immigration found under the US Constitution. To get around this major obstacle the court had to make a half-hearted argument that immigration was an “incident of sovereignty belonging to the government of the United States.” This can be translated to mean the power over the time and manner of setting your sprinklers is an “incident of sovereignty belonging to the government of the United States.”

In other words, there would be no limit to what the government could claim is an “incident of sovereignty belonging to the government of the United States.”

For Congress to claim “pre-eminent authority to regulate immigration matters” two conditions must be true, 1) the power be expressly delegated, or incident to an express power and, 2) the power must be expressly withheld from the States. Because neither condition is true, there is not even a question of concurrent exercise involved.

In a world of truth and honesty it is Arizona who can claim pre-eminent authority over immigration matters within Arizona and not Congress.