To support his insane interpretation of the post-Civil War amendments as granting citizenship to the kids of illegal aliens, Fox News’ Bill O’Reilly is now taking job applications for the nonexistent—but dearly hoped-for—Jeb! administration, live, during his show. (Apparently my debate with O’Reilly will be conducted in my column, Twitter feed and current bestselling book, Adios, America, against the highest-rated show on cable news.)
Republicans have been out of the White House for seven long years, and GOP lawyers are getting impatient. So now they’re popping up on Fox News’ airwaves, competing to see who can denounce Donald Trump with greater vitriol.
Last Thursday’s job applicants were longtime government lawyers John Yoo [Email him] and David Rivkin. [Email him]
In response to O’Reilly’s statement that “there is no question the Supreme Court decisions have upheld that portion of the 14th Amendment that says any person, any person born in the U.S.A. is entitled to citizenship … for 150 years”—Yoo concurred, claiming: “This has been the rule in American history since the founding of the republic.”
Yes, Americans fought at Valley Forge to ensure that any illegal alien who breaks into our country and drops a baby would have full citizenship for that child! Why, when Washington crossed the Delaware, he actually was taking Lupe, a Mexican illegal, to a birthing center in Trenton, N.J.
If one were being a stickler, one might recall the two centuries during which the children of slaves were not deemed citizens despite being born here—in fact, despite their parents, their grandparents and their great- grandparents being born here.
Wouldn’t anyone who wasn’t applying for a job in the nonexistent, never-to- exist Jeb! administration remember slavery?
Incongruously, Yoo also said, “The text of the 14th Amendment is clear” about kids born to illegals being citizens.
Wait a minute! Why did we need an amendment if that was already the law— since “the founding of the republic”!
An impartial observer might contest whether the amendment is “clear” on that. “Clear” would be: All persons born in the United States are citizens.
What the amendment actually says is: “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 framers of the 14th Amendment weren’t putting a secret trap door in the Constitution for fun. The “jurisdiction thereof” and “state wherein they reside” language means something. (Ironically, Yoo—author of the Gitmo torture memo—was demonstrating that if you torture the words of the Constitution, you can get them to say anything.)
At least Rivkin didn’t go back to “the founding of the republic.” But he, too, claimed that the “original public meaning (of the 14th Amendment] which matters for those of us who are conservatives is clear”: to grant citizenship to any kid whose illegal alien mother managed to evade Border Patrol agents.
Whomever that was the “original public meaning” for, it sure wasn’t the Supreme Court.
To the contrary, the cases in the first few decades following the adoption of the 14th Amendment leave the strong impression that it had something to do with freed slaves, and freed slaves alone:
Supreme Court opinion in the Slaughterhouse cases (1873): “(N)o one can fail to be impressed with the one pervading purpose found in (the 13th, 14th and 15th Amendments), lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”
Supreme Court opinion in Ex Parte Virginia (1879): “[The 14th Amendment was] primarily designed to give freedom to persons of the African race, prevent their future enslavement, make them citizens, prevent discriminating State legislation against their rights as freemen, and secure to them the ballot.”
Supreme Court opinion in Strauder v. West Virginia (1880): “The 14th Amendment was framed and adopted … to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States.”
Supreme Court opinion in Neal v. Delaware (1880) (majority opinion written by Justice John Marshall Harlan, who was the only dissenting vote in Plessy v. Ferguson): “The right secured to the colored man under the 14th Amendment and the civil rights laws is that he shall not be discriminated against solely on account of his race or color.”
Supreme Court opinion in Elk v. Wilkins (1884): “The main object of the opening sentence of the 14th Amendment was … to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States … The evident meaning of (the words, “and subject to the jurisdiction thereof”) is, 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. … Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterward, except by being naturalized …”
One has to leap forward 200 years from “the founding of the republic” to find the first claim that kids born to illegal immigrants are citizens: To wit, in dicta (irrelevant chitchat) by Justice William Brennan, slipped into the footnote of a 5-4 decision in 1982.
So to be precise, what Yoo means by the “founding of the republic,” and Rivkin means by “the original public meaning” of the 14th Amendment, is: “Brennan dicta from a 1982 opinion.”
Perhaps, if asked, the Supreme Court would discover a “constitutional” right for illegal aliens to sneak into the country, drop a baby, and win citizenship for the kid and welfare benefits for the whole family. (Seventy- one percent of illegal immigrant households with children are on government assistance.)
But it is a fact that the citizenship of illegal alien kids has never been argued, briefed or ruled on by the Supreme Court.
Yoo and Rivkin aren’t stupid. It appears that the most significant part of their analysis was Yoo’s legal opinion: “I don’t think Trump is a Republican. I think actually he is ruining the Republican Party.” Please hire me, Jeb!! (or Rubio)!
O’Reilly could get more reliable constitutional analyses from Columba Bush than political lawyers dying to get back into government.
