11 November 2018

America Is Diverse, Not Divided

Consider this headline on Bloomberg: "Election Shows That U.S. Divisions Are Only Growing Wider -- Social discord, partisan rancor and government sclerosis are about to get worse."

Or this headline in The New Yorker: "America’s Fever Is Still Rising"

Consider also this map of "Red" and "Blue" states based on the recent mid-term election results:

Or this map of Congressional distict results:

Where in either map is there a modern-day equivalent of the Mason Dixon Line, which set the northern border of the pre-Civil war "slave" states and then the northern border of the short-lived Confederate States of America? Where is the divide?

How many of the fifty states are wholly "Red" or wholly "Blue"? Even presumably "deep blue" California and New York have noticeable swaths of Republican Red.

Contrary to the breathless hyperbolic headlines, what these maps illustrate is not division but diversity. Both Republicans and Democrats look to Washington DC for national leadership. Both Republicans and Democrats, in seeking power within the Federal government, evince an awareness of a truly united nation. Implicit in all the electioneering, the preening, the posturing, is the premise that these United States are still as we proclaim to be in our Pledge Of Allegiance, "...One Nation...Indivisible, with Liberty and Justice for all."

Republicans and Democrats do not agree on what constitutes "justice". Conservatives and progressives do not agree on what meaning we should have for "liberty."  Yet there is still much upon which Republicans and Democrats do agree, and we see this in the mid-term elections and the aftermath:
  • Republicans and Democrats agree that elections matter.
  • Republicans and Democrats agree that all votes are important.
  • Republicans and Democrats agree that electoral outcomes set the agenda, the direction, and the tone of each administration and session of Congress. 
  • By their politicking and even by their pandering, Republicans and Democrats alike acknowledge the eternal truth of Hamilton's assessment of American democracy: "Here, Sir, the people govern."
The legacy media--deservedly and derisively termed the "Fake News Media"--are championing a false vision of the United States. Through hyperbolic headlines such as mentioned above, through such blatant propaganda, they exacerbate disagreement into division. They have transformed worthy debates into "wedge issues" and then hammered relentlessly on those issues to produce the signs of division they so hypocritically bemoan today.

There are real issues and real disagreements among Americans. There are pressing issues for which our governments must devise solutions--our immigration system needs reform, our infrastructure needs repair--and there are real concerns about foreign policy, trade relations, healthcare, just to name a few. Americans do not see eye to eye on any of these issues.

Americans have never seen eye to eye on issues. Americans have disagreed and debated since the founding of the Republic. In virtually every decade since the Constitution was drafted in 1787, there has been passionate and partisan debate over contentious issues, ranging from the role of the Federal government to slavery to Manifest Destiny to the New Deal to the Civil Rights movement of the 1960s. Americans disagreed over Operation Iraqi Freedom. Americans disagreed over TARP and the bank bailouts of 2008, giving rise to the Tea Party, and disagreed over Obamacare, resulting in the wave election of 2010.

Yet the Republic has endured. The government stands. We The People are still here.

That is something the Fake News Media and anyone else who would promote the propaganda of rampant rancor and petty partisanship would do well to remember. Despite their very best efforts, the Union is still standing.

07 November 2018

America Voted, And The Winner Was...."None Of The Above"

The results are in, and once again the American electorate has voted for gridlock.

With a number of races still to be called in the House, the Democrats thus far have an absolute minimum of seats needed to control that chamber.  The Republicans, meanwhile have added at least 3 seats to their majority in the Senate.

The legacy media is already giving their typical partisan spin on the results: Dana Milbank at the highly left-leaning Washington Post titled his assessment "America Steps Back From The Abyss". Fox News, ever the reliable establishmentarian conservative outlet, reaches the opposite conclusion with "Thanks to Trump, the Blue Wave Becomes a Ripple.".

Ultimately, both are wrong.

One of the enduring myths of government in the modern era is the notion that Americans want government to do much. Historically, Americans take a dim view of activist government. Since World War II, there have been only 14 out of 37 sessions of Congress (including the upcoming session) where the same party controlled the Senate, the House, and the Presidency:


During that same period, America has had 20 sessions of Congress with a Republican President and only 17 sessions with a Democrat President. Republicans have controlled the Senate for 13 sessions and the House for 11 Sessions. Only once has America voted to give a President a unified Congress, and that was in 2002, when President George W. Bush was handed a Republican Senate to go with a Republican House. In 2010 and now again in 2018 the voters have responded to unified government by giving control of the House to the opposition party.

What America rejects is not so much Democrat and Republican politicians, but rather unified and effective government under either.  If there is any historical consensus among the electorate, it is for a Republican President with at least one chamber of Congress in Democratic hands. Partisanship is not the expressed will of We The People, not over the long term.


America's notion of good government, then, is not government that is either Democrat Blue or Republican Red. Good government in this Republic is Democrats and Republicans together addressing the nation's issues and attending to the nation's business.  Divided government produced the 1986 tax reforms under Ronald Reagan, and the 1996 welfare reforms under Bill Clinton.


In contrast, the unified Democratic administration of Lyndon Johnson ended in the social upheaval and chaos of 1968. The unified Democratic administration of Jimmy Carter resulted in "stagflation" which ushered in the Reagan era. The unified Republican administration of George W. Bush authorized Operation Iraqi Freedom. The unified Democratic administration of  Barack Obama resulted in Obamacare.


America's experience of unified government does not encourage us to indulge in it often.


If there is an election mandate arising from the 2018 midterm election results it is this: Democrats and Republicans must work together, and the Congress must work with the President to conduct this nation's business. If there is an electoral rebuke to be derived from these results it is to the notion that either party is much trusted by the American electorate with untrammeled power.  America prefers government that does what is necessary but no more than that--Americans prefer government to do too little than too much.


When given the choice between Democrats in power and Republicans in power, the choice of We The People has been once again "none of the above."


Hopefully, our elected officials in Washington will understand this and will behave accordingly.

04 November 2018

Still "We The People"

On November 6, 2018, just two days from now, America will have an election.

In just two more days, America heads to the polls, in what is undoubtedly the most closely watched mid-term election at least since World War Two, if not in the history of the United States.

In just two more days, the entire House of Representatives will be (re)elected, and one third of the Senate will be (re)elected.

In just two more days, the political composition of our nation's government will be decided, and we will know how many Democrats and how many Republicans will sit in either house within the Congress.

There has been prognostication, punditry, and arrogant analysis on both sides ad nauseum. As of this writing, both sides are alternately acting as if they are on the cusp of electoral greatness and teetering on the brink of electoral disaster.  

As regards to which party might take control of either the House of Representatives or the Senate, my sentiment is best expressed by Clark Gable at the end of Gone With The Wind--"Frankly, my dear, I don't give a damn."

The Democrats may take control of the House. It is unlikely they will take control of the Senate. In no likely scenario do they have enough votes to impeach President Trump and throw him out of office.  

Regardless of the electoral outcome, Democrats and Republicans and President Trump will still have to work together to advance American interests and cultivate American prosperity.  In this regard the election of 2018 is exactly like every other mid-term and Presidential election we have had since the founding of the Republic.  On November 7, just like on every day after an election, the government will still have to govern, and the rest of us will still have to get up, go to work, and work to move our individual lives forward in whatever direction we have chosen.

Regardless of the electoral outcome, I hope the public discourse will shift away from politics and  towards policy.  Instead of discussing the merits and demerits of this or that political figure, the fitness or unfitness of Donald Trump for the Oval Office, let us instead discuss the merits and demerits of this or that policy. Let us sound off on whether more tax cuts are needed, on whether President Trump's border wall should be funded, on whether the government should continue to use tariffs as a weapon in internecine trade warfare with the world. Let us voice our opinions on immigration reform and on birthright citizenship. Let us turn our energies away from perfecting politics and towards perfecting policy.

Regardless of the electoral outcome, let us realize that we are defined by things other than how we cast our ballots. We are defined by our jobs, by our communities, by our families, and we are defined by our country. 

We The People are not merely Americans, we are America.  Whether we vote for Democrats, Republicans, Conservatives, Libertarians, Greens, or for any other political party, we are still just Americans--one people, not many hyphenated subdivisions of a people.

President Kennedy, speaking to the 1963 graduating class at American University, stated that "...our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's future. And we are all mortal." 

A quarter century later, President Reagan, in his Farewell Address at the conclusion of his Presidency, reminded us that our government begins with us, with "We The People":
"We the People" tell the Government what to do, it doesn't tell us. "We the people" are the driver - the Government is the car. And we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the Government what it is allowed to do. "We the people" are free.
Regardless of the electoral outcome, we still inhabit this one small planet. We still inhabit this one nation. We still breathe the same air. And we are all still mortal.

Regardless of the electoral outcome, we are still one people. We are still one nation. We are still the masters of our government, and never its servants. We still tell government where to go, how to get there, and how fast to go.  We are still free.

Regardless of the electoral outcome, we will never fully agree on either politics or policy. We will never, as a people, be unanimous in either support or opposition to a President, to an Administration, to a Congress, or to any act or policy they might seek to enact. We are one people, but not of one mind, and we are not meant to think and act in perfect uniformity. 

We are one people, and as a people we are meant to discuss and debate, to share ideas, to let ideas compete with ideas so that the best thoughts will prevail. Our more perfect Union was formed by debate, and it grows by debate. The true American Revolution came not on the battlefields of Lexington, Concord, Trenton, or Yorktown, but in the meeting hall in Philadelphia where Americans joined together to create a constitution and thereby recreate a government. 1787 was the first time in history men redefined their government without a shot fired in anger--a true political revolution unlike any before or since.

Let us remember that, let us be mindful of that, and let us always strive to live up to that. Let us be, now and always, "We The People".

02 November 2018

"Subject To The Jurisdiction" -- What Do The Words Mean?


President Trump, in his peculiarly Trumpian fashion, ignited a firestorm of debate and controversy when he speculated in an interview with Axios that he would end so-called "birthright citizenship" with an executive order. In the world according to Trump, he can end that practice with a single stroke of his pen.

Trump's speculation is controversial not because, as many commentators have suggested, the law surrounding birthright citizenship is settled and beyond contestation, but because in fact there are large swaths of gray surrounding the policy.  As I pointed out in my last posting, the existing case law is far narrower in its language and scope than many want to believe.

The one point of agreement on all sides is this: the nub of this question is the meaning of a particular phrase in Section 1 of the Fourteenth Amendment--"and subject to the jurisdiction thereof".  For clarity, here is the full first sentence of that section:
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. 
In order to fully apprehend the legal principles established by this sentence, we must first understand its grammar.  The subject of the sentence is "persons", the verb is "are"--present tense of the infinitive "to be"--and the modifiers of "persons" are "All", "born or naturalized in the United States", and "subject to the jurisdiction thereof." The complement to the verb is "citizens of the United States and of the State wherein they reside."

With this structure, "subject" is an adjective (because it modifies the noun "persons").  Here we must now ask the question: how does this adjective modify persons?  We can ascertain that by inspecting the other adjective and participle that also modify "persons", "born" and "naturalized".  An equivalent construction for each would be "All persons who are born..." and "All persons who are naturalized...." Given the parallel grammatical structure employed, we may apply this same alternate construction to "subject"--All persons who are subject to...."

That "subject" is an adjective is of crucial importance, because it governs what we can make of the prepositional phrase "to the jurisdiction thereof".  If "subject" were a verb, we would have to apply a transitive verb meaning, of which Merriam-Webster offers up three:
1a : to bring under control or dominion : SUBJUGATE
b : to make (someone, such as oneself) amenable to the discipline and control of a superior
2 : to make liable : PREDISPOSE
3 : to cause or force to undergo or endure (something unpleasant, inconvenient, or trying)
However, as an adjective "subject" has these meanings:
1 : owing obedience or allegiance to the power or dominion of another
2a : suffering a particular liability or exposure
b : having a tendency or inclination : PRONE
3 : contingent on or under the influence of some later action
Which of these meanings do we apply to the first sentence of the Fourteenth Amendment?  The general principle is that dictionary definitions are arranged chronologically--that is, the oldest (and therefore the original) definition appears first, and subsequent definitions appear thereafter. Absent any clear contextual reference to infer otherwise, we should generally apply that first, or denotative, definition. Thus, in the Fourteenth Amendment, "subject to the jurisdiction thereof" means "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."

Moreover, we have positive proofs this is the correct definition.  One of the Fourteenth Amendment's primary authors, Senator Jacob Howard of Michigan, made this declaration regarding the phrasing:
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Senator Lyman Turnbull, another of the principle framers of the Fourteenth Amendment, and the actual author of the "subject to the jurisdiction thereof" phrase, amplified Senator Howard's commentary thus:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
From these proofs that "subject" is to be understood as "owing obedience or allegiance", we may also conclude the proper meaning of "jursidiction" in this regard is the second "the authority of a sovereign power to govern or legislate". The original definition of jurisdiction is focused on the operation of courts and judicial bodies, which is simply too narrow a definition to be coherently applied in this sentence.  

These definitions also comport with the notions of "subjectship" that formed the bulk of the reasoning in the pivotal Supreme Court Case United States v Wong Kim Ark (169 US 649 (1898)). Much of the reasoning in English common law in this realm dealt not with citizenship per se, but with subjectship--i.e., under what circumstances was a person deemed a subject of the British Crown?  

Interestingly, a number of legal commentators disregard both the grammatical construction of that first sentence in the Fourteenth Amendment and the substantive ramifications thereof.  Attorney and legal scholar James Ho, writing in the Los Angeles Times, offered this assessment:
When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.
The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.
There are two problems with this view.  First there is the obvious contradiction when considering the particular case of the illegal alien: The dictate of the law--and therefore of the orders of any court--is that said illegal alien not be in within the borders of the United States at all; if the requirement is obedience, and the person refuses to obey this most basic of instructions, the clear implication is they are placing themselves beyond the obedience necessary for conferring birthright citizenship.

Further, this view ignores the implicit social contract in subjectship as defined by Sir William Blackstone and referenced in Wong Kim Ark (emphasis added):
Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto
In other words, obedience and allegiance arise from the premise that the duty of the sovereign authority is to protect the inhabitants of the realm.  Yet the illegal alien is not protected by any sovereign authority--quite the contrary, if placed within the grasp of the sovereign authority he is presented with detention and deportation. If a person, at his birth, does not derive protection from the sovereign authority, how can there be a consequential owing of either obedience or allegiance, and thus a basis for bestowing citizenship?

Akhil Amar similarly ignores both the documented legislative background of the Fourteenth Amendment and the legal implications of the grammatical construction, even as he relies on the same formulation to (mis)state his case:
 ...the Fourteenth Amendment’s text is more capacious—speaking not just of African Americans, but of “[a]ll persons.” This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.
Amar is relying on a specious inference that "subject to" relies on the secondary connotative meaning "suffering a particular liability or exposure." Even if we did not have the commentaries of the Fourteenth Amendment's authors declaiming this very posture, the grammatical construction of this first sentence within the Amendment simply does not allow for the expansive interpretation Amar desires. Again we are confronted with the paradox: if the test is obedience to the law, the illegal alien daily fails that test, for his presence is by definition a defiance of the law. If the test is allegiance, the illegal alien fails that test as well, by that same defiance. As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.

As I have stated before, "...immigration is almost exclusively a matter of law, of what the law is, and what the law should be." Citizenship, birthright and otherwise, is likewise a matter of law--of specific law, of statutes, and precise language within the Constitution. All law is first and foremost an exercise in language--an assemblage of words whose meanings combine to elucidate the principles by which a society is to be governed.  As laws are devised in a specific place and time, forever fixed to that place and that time, so too is the language of the law fixed to that place and that time. It is quite proper to debate what the language of the law (and the law itself) should be, but that debate is fatally flawed if we conflate what the language is and what we desire the language to be.

If one wishes to discuss or debate a law, one must first understand the language of that law.  A law says whatever the words mean. This has always been the order of things; this shall always be the order of things.