Full Transcript for Birthright Citizenship: Where SCOTUS Went Wrong | John Eastman

first in the 1866 Civil Rights Act, and then in the 14th Amendment, the primary role of the Citizenship Clause was to reverse Dred Scott. 00:05:08.319 --> 00:05:18.639 So let's look at the 1866 Civil Rights Act first, because the language there is a little less ambiguous than the 14th Amendment's language is to our modern ears. 00:05:18.720 --> 00:05:21.360 And so I think it's important to see the precursor language. 00:05:21.600 --> 00:05:33.600 It says, uh, all persons born in the United States and not subject to any foreign power, excluding excluding Indians not taxed, are citizens of the United States. 00:05:33.839 --> 00:05:43.279 Um of course that would directly re reverse the Dred Scott, the infamous Dred Scott decision, not owing allegiance to any foreign power. 00:05:44.240 --> 00:05:56.800 And uh and just a few months later, after that's passed, and you know, by the way, we're gonna now do this in the 14th Amendment because the authority for the Civil Rights Act was the Thirteenth Amendment, the prohibition on slavery. 00:05:57.040 --> 00:06:04.240 And there was, I think rightly, a very serious question of whether the Civil Rights Act was authorized by the Thirteenth Amendment. 00:06:04.399 --> 00:06:06.000 That would make it unconstitutional. 00:06:06.160 --> 00:06:12.560 So they wanted the 14th Amendment to solidify the constitutional foundation for the Civil Rights Act. 00:06:12.720 --> 00:06:18.879 But they also wanted to constitutionalize it so that it could not be changed by a future Congress. 00:06:19.120 --> 00:06:24.160 So locking it in was constitutional language would affect both of those things. 00:06:24.399 --> 00:06:27.600 Now, the language of the 14th Amendment is concededly different. 00:06:27.759 --> 00:06:29.920 It doesn't say not subject to any foreign power. 00:06:30.079 --> 00:06:40.560 It says all persons born or naturalizing the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. 00:06:40.720 --> 00:06:50.639 And put that last phrase to the side for a moment, I'll come back to it, because I think that helps uh elaborate on one of the key disputes that was at issue in Barbara. 00:06:50.959 --> 00:06:52.079 I'll get to that in a minute. 00:06:52.319 --> 00:07:01.279 So it's quite possible that they changed that language to more broadly confer citizenship on anybody that was born here, anybody that was just subject to our laws. 00:07:01.360 --> 00:07:17.199 And so that would exclude territory occupied by an invading army, and it would exclude the children of diplomats, the two exemptions under the old English birth on the soil, law of the soil rule that uh Chief Justice Roberts seems to think we had adopted. 00:07:17.360 --> 00:07:18.560 They could have meant that. 00:07:18.800 --> 00:07:23.439 But the drafters of the language were asked specifically if that's what they meant. 00:07:23.519 --> 00:07:27.920 And they said no, it means exactly the

same thing as the 1866 Act. 00:07:28.160 --> 00:07:31.600 We changed the language to make it clearer on what was going on at the time. 00:07:31.759 --> 00:07:43.600 Well, the Indian exclusion, the Native American exclusion to bring it to modern language, um, those were domestic foreign powers, domestic powers, domestic dependent powers, to be sure. 00:07:43.680 --> 00:07:44.560 They weren't foreign powers. 00:07:44.639 --> 00:07:50.639 So there was question: what if uh somebody born into a tribe but not on the reservation, so clearly on U.S. 00:07:50.800 --> 00:07:57.600 soil, uh was he a citizen, even though he owed his primary allegiance to the tribe? 00:07:57.680 --> 00:08:03.759 And it's not covered by the exclusion, not subject to any foreign power, because it's a it's a tribal domestic power. 00:08:03.839 --> 00:08:07.680 And so there was some litigation developing and some confusion. 00:08:07.839 --> 00:08:12.639 They said, well, we're gonna change that, not subject to any foreign power to subject to the jurisdiction. 00:08:12.800 --> 00:08:14.879 But we mean the same thing by that. 00:08:15.120 --> 00:08:24.160 The subject to the jurisdiction is just a better formulation, according to the chiefs, one of the chief sponsors, Trumbull, to achieve the same object. 00:08:24.319 --> 00:08:27.600 Um, it meant not owing allegiance to anybody else. 00:08:27.759 --> 00:08:29.920 That's what it means, is what he said. 00:08:30.079 --> 00:08:34.159 Um it's uh because it's not subject to the complete jurisdiction. 00:08:34.320 --> 00:08:40.559 And it therefore, and he specifically said it distinguishes mere amenability to the laws. 00:08:40.799 --> 00:08:47.759 Uh subject to the jurisdiction meant complete jurisdiction, not partial or what they call territorial jurisdiction. 00:08:48.000 --> 00:08:51.759 Um and I I think that's uh uh extremely important. 00:08:51.919 --> 00:08:56.320 You know, the the author of the language says the same thing, the full and complete jurisdiction. 00:08:56.559 --> 00:09:02.480 The same jurisdiction as applies to every citizen now, that is under the 66 Civil Rights Act. 00:09:02.799 --> 00:09:05.120 Senator uh Riverti Johnson, same thing. 00:09:05.279 --> 00:09:08.399 It clearly intends not subject to some foreign power. 00:09:08.720 --> 00:09:23.200 Now, there's a very interesting exchange in the debate that my uh more famous uh debate opponents on this issue over the over the last few decades have tried to focus on as proof that they meant to give citizenship to everybody. 00:09:23.519 --> 00:09:45.039 Senator uh Cohen from Pennsylvania, who was an opponent of the bill, trying to uh get people not to vote for it, says, what about and he asked Senator Konas from California, um, and you know, this is the 1860s, and already in California, a huge opposition to the Chinese cooleie labor trade. 00:09:45.120 --> 00:09:53.679 Um and so he asked Senator Konis, what about the Chinese, and then he throws in gypsies because he's

from Pennsylvania, what about the Chinese and gypsies? 00:09:54.080 --> 00:09:59.279 And Konas answers, and this cost him his Senate seat at the next legislative election. 00:09:59.360 --> 00:10:02.799 Um, he said, yes, they're gonna have citizenship as well. 00:10:02.879 --> 00:10:06.159 Um and that's often taken as proof that they meant everybody. 00:10:06.399 --> 00:10:10.159 But the last part of Cohen's question, I think, is extremely important. 00:10:10.320 --> 00:10:17.600 He says, are they to have more rights than sojourners, than temporary visitors? 00:10:17.840 --> 00:10:19.120 Now, why would he ask that? 00:10:19.279 --> 00:10:33.279 And so the but that means that the assumption behind the question is that temporary sojourners were not going to have the right to automatic citizenship because they were just here temporarily, either passing through or what have you. 00:10:33.360 --> 00:10:44.559 Uh and so when Konis answers the question, yes, the Chinese and gypsies, it has to be Chinese and gypsies who are something more than mere sojourners, temporary visitors. 00:10:44.720 --> 00:10:55.279 Those that were lawfully and permanently domiciled here to use uh, or green card holders, if you will, to you know, bring it all the way forward to the modern language. 00:10:55.440 --> 00:10:56.879 That's what they are talking about. 00:10:57.039 --> 00:11:06.240 The underlying assumption is we're talking about adding people to the political community that have some allegiance rather than just passing through temporarily. 00:11:06.480 --> 00:11:11.120 Um, I I was asked to give input on the president's executive order. 00:11:11.360 --> 00:11:16.720 And at the at the initial drafts, it only had uh limitation for illegal immigrants. 00:11:16.879 --> 00:11:30.480 And I said, there's no discussion whatsoever about illegal immigration in the 1866 debates and the ratification debates because we didn't have any restrictions on immigration, we didn't have anything called the illegal immigration. 00:11:30.559 --> 00:11:38.320 Um, but I said temporary visitors, there is a debate about that, and they reject the notion that temporary visitors are going to be covered. 00:11:38.399 --> 00:11:50.720 So you should probably add that corregory as well, because it you've there's more actual historical support for that than the just negative omission of any discussion about people who are here illegally. 00:11:50.960 --> 00:11:52.799 And so that gets added as well. 00:11:52.960 --> 00:11:57.840 And it's this disc this exchange between Cohen and Connis that I think supports that. 00:11:58.080 --> 00:12:00.799 More rights uh than temporary visitors. 00:12:01.039 --> 00:12:19.519 And by the way, uh years later, Joseph Story uh will pick up in his famous treatise uh in the eighth-screen, not years later, years earlier, uh uh Joseph Storey actually has a discussion about this, and I'm trying, I've lost my pages, I dropped them on the way in, so um, well, I can summarize. 00:12:19.679 --> 00:12:20.559 Oh, here it is. 00:12:20.799 --> 00:12:29.679 Um he says in his 1830s treatise, this is before the 14th Amendment, so he's obviously not writing about the language, but he's talking about the underlying theory. 00:12:30.399 --> 00:12:37.200 Persons who are born in a country are generally deemed citizens and subjects of that country. 00:12:37.440 --> 00:12:54.720 But a reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were itinerary, that is, traveling in the country, or who were abiding there for temporary purposes, as for health or curiosity or occasional business. 00:12:54.960 --> 00:13:06.159 In other words, long before we even get to the debates of the 14th Amendment, story is drawing exactly the same distinction that the authors of the Fourteenth Amendment uh expressed repeatedly. 00:13:06.480 --> 00:13:15.759 Now, um I say the authors of the Fourteenth Amendment, and uh we've got Federal Society and we got Calsa people, I bet there's a one or two originalists in here. 00:13:16.240 --> 00:13:16.639 All right. 00:13:16.879 --> 00:13:26.399 What's more important, what James Madison said in the Federal Convention, or what they said in the ratifying convention, because the ratifying conventions are what gave that thing the authority. 00:13:26.639 --> 00:13:37.840 So you could say, well, Professor Eastman, that's all well and good what they said in Congress, but is there any evidence in the ratifying conventions, the ratifying state legislatures, about what they intended to mean? 00:13:38.080 --> 00:13:51.679 And we don't have a lot because they did not keep the copious notes in their state legislatures where they adopted the 14th Amendment that we had, say, over the Bill of Rights and the ratification of the Bill of Rights. 00:13:51.840 --> 00:14:01.120 But what we do know is that everybody in those ratifying bodies uh thought that they were codifying the 1866 Civil Rights Act. 00:14:01.279 --> 00:14:10.080 Um a good perhaps law review article might be uh to take up how what you know what in particular was said. 00:14:10.240 --> 00:14:23.840 Very little was said in the legislative debates themselves because the debates that this was done by not a separate ratifying convention, but by the state legislatures, one of the two routes that that wing of the amendment process allows in the Constitution. 00:14:24.000 --> 00:14:34.320 And there wasn't really debate in the legislature, it occurred in the election campaigns leading up to the election of who was going to be in the legislature when the amendment ratification came before us. 00:14:34.480 --> 00:14:45.759 And so it'd be very interesting, law review inquiry, I would think, to dig into the newspaper articles and the ads and the campaign material that was done leading up to that election to see what said. 00:14:46.000 --> 00:14:52.000 But what I've been able to find is that it's just we all knew we're

ratifying the 1866 Civil Rights Act. 00:14:52.080 --> 00:15:01.600 And that make draws a much tighter connection uh uh with the language of the 14th Amendment beyond just what the speakers uh in the floor of the Senate said. 00:15:01.919 --> 00:15:12.000 Now, when it gets to the Supreme Court, the 14th Amendment's first case is one you probably know uh that takes out the Privileged Immunities Clause called Slaughterhouse. 00:15:12.080 --> 00:15:19.039 I know Professor Barnett has been very keen on, as I am, on saying that was wrongly decided and needs to be overruled. 00:15:20.000 --> 00:15:23.360 But they did address the citizenship clause. 00:15:23.440 --> 00:15:33.840 It's dicta, it wasn't necessary to the holding, but they said the meaning of that clause is quite obviously to exclude children of ministers, councils. 00:15:34.080 --> 00:15:41.919 On that everybody agrees, and then it goes on to say, and citizens or subjects of foreign states born within the United States. 00:15:42.240 --> 00:15:52.159 In other words, the subject to the jurisdiction limitation on the grant of mandatory or automatic citizenship is not limited to the children of diplomats. 00:15:52.399 --> 00:16:05.759 Any children of citizens or subject of foreign states who are born within the United States are excluded as well because they continue to owe allegiance through their parents to the home country and not to the United States. 00:16:05.840 --> 00:16:09.919 They're lacking the key reason that clause is there. 00:16:10.320 --> 00:16:16.720 Um that dicta becomes holding of the Supreme Court in 1884 in a case called Elk versus Wilkins. 00:16:16.879 --> 00:16:22.559 That one dealt with a child that would have been born into a tribal relationship. 00:16:22.799 --> 00:16:29.440 Uh he later left the tribe and said that he was a citizen because he'd been born in the United States. 00:16:29.600 --> 00:16:35.360 Now there's some historical dispute on whether he'd been born on a reservation or off of a reservation. 00:16:35.600 --> 00:16:37.519 The case doesn't turn on that. 00:16:37.759 --> 00:16:53.440 The case turns on the fact that he was a member of the tribe and therefore owed allegiance, his primary allegiance to that separate sovereign, even though that tribe was itself dependent and subject to the authority of the United States. 00:16:53.519 --> 00:16:56.320 It was a dependent domestic sovereign. 00:16:57.039 --> 00:17:10.240 They denied him the citizenship claim because it said the citizenship clause, subject to the jurisdiction, requires being completely subject to their political jurisdiction and owing them direct and immediate allegiance. 00:17:10.400 --> 00:17:17.359 And he didn't meet that test because he owed his direct and immediate allegiance to that separate sovereign, that tribe. 00:17:17.599 --> 00:17:36.480 And if it's true for somebody born into a tribal relationship that in turn was subject to the United States, how much more true must it necessarily be to somebody whose direct and immediate allegiance is to a foreign nation that doesn't owe any allegiance or have any dependency on the United States at all? 00:17:37.039 --> 00:17:49.920 So I think the exclusion for Native Americans recognized by the Supreme Court in Alf versus Wilkins necessarily settles the question, both of illegal immigrants and temporary visitors. 00:17:50.240 --> 00:17:59.920 The leading treatise writer of the day was Thomas Cooley, and here's what he says in his treatise, The General Principles of Constitutional Law in the United States. 00:18:00.160 --> 00:18:15.519 Subject jurisdiction means 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. 00:18:15.759 --> 00:18:20.720 In other words, Cooley in his treatise in the 1870s is saying exactly the same thing. 00:18:21.039 --> 00:18:30.960 Difference between complete jurisdiction and this temporary or partial jurisdiction that you subject yourselves to just by being physically present here. 00:18:31.920 --> 00:18:39.519 And by the way, this plays out in the language, uh the difference in language between the Citizenship Clause and the Equal Protection Clause. 00:18:39.920 --> 00:18:43.119 Citizenship Clause says subject to the jurisdiction. 00:18:43.279 --> 00:18:50.079 The Equal Protection Clause guarantees the equal protection of laws to all persons within the jurisdiction. 00:18:50.319 --> 00:18:57.519 That difference that within the jurisdiction is clearly geographic in scope, uh, whereas subject to the jurisdiction is different. 00:18:57.759 --> 00:19:07.200 Now we'll go back to that other phrase in the subject to the jurisdiction clause itself, are citizens of the United States and of the states in which they reside. 00:19:07.519 --> 00:19:07.839 Right? 00:19:08.000 --> 00:19:24.400 There's built into the presumption the presumption that they are residing in some state and residing not just passing through or here temporarily, but actually having take up a permanent and lawful residence, being domiciled is the way the legal phrase would use. 00:19:25.519 --> 00:19:29.839 One last piece from this kind of historical original period. 00:19:30.880 --> 00:19:41.680 In the 1880s, we had a couple of very important cases, not court cases, but uh adjudicative administrative cases before the Secretary of State. 00:19:41.839 --> 00:19:47.440 Um, a child born of uh Scottish parents and another of German parents. 00:19:47.680 --> 00:19:52.480 Um been born in the United States when they were here temporarily visiting. 00:19:52.799 --> 00:19:55.920 And they applied for passports. 00:19:56.160 --> 00:20:07.680 And the Secretary of State in both cases denied the passports because their parents were only here temporarily when they were visiting, and that did not make them citizens, sh citizens under the 14th Amendment. 00:20:07.759 --> 00:20:10.960 Um so

that's the kind of historical historical period. 00:20:11.039 --> 00:20:20.160 I'll come way back around to it later when I when I uh explore the underlying theory on why I think that's right as a matter of our political theory as well. 00:20:20.400 --> 00:20:24.079 But let me now um look at the key case on the other side. 00:20:24.319 --> 00:20:28.960 Comes about 30 years after the passage of the 14th Amendment, and it's Wang Kim Ark. 00:20:29.279 --> 00:20:36.240 Wang Kim Ark uh was born in the United States to Chinese parents who were not citizens. 00:20:36.400 --> 00:20:47.200 But 28 times in the opinion, including in the questions presented, they focus on the fact that the parents were lawfully and permanently domiciled in the United States. 00:20:47.680 --> 00:20:54.079 Now there's much broader language in Wang Kim Ark uh than focus merely on the domicile. 00:20:54.160 --> 00:21:07.039 But the question presented, and therefore the only question answered as a matter of holding rather than dicta, is is the child born to parents who are lawfully and permanently domiciled in the United States a citizen? 00:21:07.279 --> 00:21:09.119 And the court held that he was. 00:21:09.599 --> 00:21:15.759 Um but it then in its dicta, I think gives some reasoning that I think was flawed. 00:21:15.839 --> 00:21:33.200 And that reasoning was we've adopted the English common law rule of use solely, law of the soil, and that the Fourteenth Amendment was intended to codify that so that everybody born on the soil are subjects of the United States government and have citizenship as a result of the 14th Amendment. 00:21:33.359 --> 00:21:46.000 Now, if that were true, if Wong Kim Arc settled this question by adopting the English common law rule, there are several things that happened after Wang Kim Ark that just don't make any sense. 00:21:46.480 --> 00:21:52.960 First is in 1924, Congress passes the Indian Citizenship Act to offer citizenship. 00:21:53.119 --> 00:21:58.960 By the way, I say offer, they granted citizenship, but there are several tribes that declined to accept it. 00:21:59.119 --> 00:22:03.279 There's a tribe In North Dakota to this day issues its own passports. 00:22:03.839 --> 00:22:09.039 The Indian Citizenship Act of 1924, conferring citizenship on all Native Americans. 00:22:09.279 --> 00:22:12.160 If Won Kim Arkett said anybody born on U.S. 00:22:12.240 --> 00:22:16.240 soil is a citizen, why do Congress need to pass the Indian Citizenship Act? 00:22:16.400 --> 00:22:20.160 The Fourteenth Amendment, as interpreted by the Supreme Court, had already settled the question. 00:22:20.400 --> 00:22:21.279 End of story, right? 00:22:21.440 --> 00:22:23.119 Well, Congress didn't think so. 00:22:24.079 --> 00:22:35.359 After the depressing hits, during the 1920s, the roaring 1920s, there was a booming economy, lots of imported workers, particularly in agriculture, from Mexico. 00:22:35.839 --> 00:22:41.599 And after the Great Depression hits, many of them are forcibly repatriated. 00:22:41.759 --> 00:22:50.000 It was an ugly chapter in our history because that many were loaded on cattle cars and just sit back to Mexico under horrendous conditions. 00:22:50.240 --> 00:23:08.799 But as California has recently had a resolution passed by the state legislature, apparently about 1.2 million children born to those foreign workers during the 1920s were also repatriated as part of the repatriation movement. 00:23:09.119 --> 00:23:18.640 Not a single example of any case, of any challenge, of even anybody raising the issue that those children couldn't be sent to Mexico because they were U.S. 00:23:18.720 --> 00:23:19.119 citizens. 00:23:19.279 --> 00:23:20.160 Not a single one. 00:23:20.400 --> 00:23:26.880 That seems odd to me if Jon Kim Arc had settled the question the other direction, as many claim now. 00:23:27.519 --> 00:23:31.440 Same thing happened in the end of the 1950s at the end of the Briseros program. 00:23:32.160 --> 00:23:41.359 And also in our passport forms, all the way up until 1966, you had to be a citizen in order to get a passport. 00:23:41.599 --> 00:23:49.039 And that meant the Department of State and the Office of Passports had to have a form, bureaucratic form, to figure out, you know, how do you prove. 00:23:49.119 --> 00:23:50.960 And there were two different forms. 00:23:51.359 --> 00:24:00.079 One, if you were born overseas, you had to demonstrate that your parents were citizens, that they'd met the longevity requirements of living in the United States. 00:24:00.240 --> 00:24:09.440 This is what was at issue if Barack Obama had been born in Kenya and his mother lived in the United States long enough after coming of age to be able to confer citizenship. 00:24:09.599 --> 00:24:14.640 I'm not getting into whether he was born in Kenya or Hawaii, but that was the underlying issue. 00:24:15.039 --> 00:24:16.240 That's the one form. 00:24:16.480 --> 00:24:25.839 The other form, if you were born in the United States, you had to show question number three what state were you born in, right? 00:24:26.000 --> 00:24:27.279 And you had to have some proof. 00:24:27.599 --> 00:24:35.279 Birth certificate would be ideal, a baptismal certificate, if not, because a lot of places were a little lax in birth certificates. 00:24:35.440 --> 00:24:39.839 But then there were several questions about the status of your parents. 00:24:40.079 --> 00:24:45.920 Questions which were irrelevant if Wong Kim Arc had settled the question that just birth on the soil was all you needed. 00:24:46.160 --> 00:24:52.160 Why did I, other than questions about diplomatic status of the parents, that's not what these questions were about. 00:24:52.799 --> 00:24:54.319 Had they become naturalized? 00:24:54.480 --> 00:24:55.680 Were they here temporarily? 00:24:55.839 --> 00:24:57.119 These kind of questions. 00:24:57.359 --> 00:25:00.240 And those questions remained on the born in the U.S. 00:25:00.640 --> 00:25:05.839

version of this passport application form all the way up until 1966. 00:25:06.240 --> 00:25:10.000 Now, I don't know why those questions were all of a sudden deleted. 00:25:10.400 --> 00:25:23.440 My knowledge of bureaucracies suggests that when there were some new requirements added in the 65 Immigration Act, that kicked the form over to two pages, and some bureaucrat was said, figure out how to get it down to one page. 00:25:23.519 --> 00:25:27.680 And he looked at those questions and didn't understand why we're there, and they were gone all of a sudden. 00:25:27.839 --> 00:25:39.440 But it wasn't until 1966 that we're not asking about the status of parents for people who are born in the United States on whether you're going to be deemed a citizen in order to get a passport. 00:25:39.759 --> 00:25:44.319 Now, um that brings me up to President Trump's. 00:25:45.039 --> 00:25:48.480 He made this a part of his campaign in 2015. 00:25:49.519 --> 00:25:53.359 He was a bit laughed at by the press and said, you can't change this. 00:25:53.440 --> 00:25:55.519 This is constitutionally required. 00:25:55.920 --> 00:26:00.640 He held a press conference shortly after coming down the escalator, waving a law review article. 00:26:00.799 --> 00:26:03.839 I was the only one with a law review article at the time, so I think it was mine. 00:26:04.000 --> 00:26:05.039 It was pretty cool. 00:26:06.799 --> 00:26:09.279 But nothing ever happened in the first administration. 00:26:09.359 --> 00:26:15.599 And then in the second administration, this is day one, one of the many executive orders that he issues. 00:26:15.839 --> 00:26:18.960 And of course, it's immediately challenged all over the country. 00:26:19.119 --> 00:26:22.480 The first court case deals with it up in Seattle. 00:26:22.640 --> 00:26:35.200 And the judge actually threatened the Trump administration lawyers who were defending the executive order with a potential referral for sanctions and disbarment for taking on such a frivolous position. 00:26:35.680 --> 00:26:36.799 Now, it gets to the U.S. 00:26:36.880 --> 00:26:42.240 Supreme Court, and of course it gets four votes that the 14th Amendment doesn't mandate this. 00:26:42.640 --> 00:26:54.000 Often the press say it was a 6-3 decision, but of the six, Justice Kavanaugh's concurring opinion agreed with the dissenters on the constitutional mandate. 00:26:54.160 --> 00:26:57.839 He just thought it had to be settled by Congress rather than executive order. 00:26:58.240 --> 00:26:59.519 I think he's wrong about that. 00:26:59.680 --> 00:27:19.519 If the Constitution sets the floor here, the President has an obligation, say, for example, when deciding what policy on issuing passports is going to be to determine who's a citizen under the Constitution, and he has an equal obligation to faithfully take care that that law be faithfully executed. 00:27:21.759 --> 00:27:23.119 So we get up to the court. 00:27:23.279 --> 00:27:30.640 The notion that it was frivolous is now gone because the fact that four Supreme Court justices agree with it means it's anything but frivolous. 00:27:30.799 --> 00:27:34.079 What's been most surprising to me, two things. 00:27:34.319 --> 00:27:37.119 One, the academic literature on this. 00:27:37.599 --> 00:27:53.359 Up until 2015, when Trump started raising the issue in a serious political way, almost all legal scholars agreed with me that the Wong Kim Ark case did not settle the question for illegal immigrants or temporary visitors. 00:27:53.599 --> 00:27:58.400 They all started changing their views after Trump came down that escalator in 2015. 00:27:58.559 --> 00:28:00.640 Oh, this has been settled for over a century. 00:28:00.799 --> 00:28:02.640 You have no authority to do it. 00:28:03.039 --> 00:28:09.839 That kind of transformation in the scholarly honesty, quite frankly, was rather stunning to me. 00:28:10.079 --> 00:28:18.720 But the other thing that was stunning to me is how quickly more scholars started writing at greater depth. 00:28:18.880 --> 00:28:40.480 Richard Epstein and Leno Gralia and Elon Warman and Rob Nadelson and Kurt Lash and a number of other people that have started really delving into the historical debates and coming to the view that in fact the drafters of that made exactly this distinction that I've been talking about. 00:28:40.799 --> 00:28:54.720 So much so, so much so that the criticism of the court majority opinion is such that they are so far out of line with what the original meeting was that it's clearly wrong and needs to be reversed. 00:28:55.519 --> 00:29:03.039 Which is rather stunning when you look back just 10 or 15 years and how uniformly everybody thought, well, the Constitution mandates this. 00:29:03.200 --> 00:29:11.759 That may be dumb, it may be crazy given the expansion and explosion of birth tourism problems, but it is what the Constitution says it is. 00:29:11.839 --> 00:29:19.759 And how how quickly people have kind of rethought what those original debates were and therefore what it meant. 00:29:20.480 --> 00:29:28.799 Now let me let me turn to the what I think is the is the most serious theoretical error by the majority opinion. 00:29:29.039 --> 00:29:32.400 I published an article in uh The American Mind. 00:29:32.720 --> 00:29:35.839 Um the day, the day, uh, when did it come down? 00:29:36.000 --> 00:29:39.519 The third I think the day of the opinion or the next day. 00:29:39.680 --> 00:29:44.079 Um not 1608, what the court got wrong. 00:29:44.400 --> 00:29:58.480 So Chief Justice Roberts, um uh I think does a very scholarly analysis of the historical development of the English common law rule of use solely, the law of the soil. 00:29:58.720 --> 00:30:16.000 Um and under the law of the soil, uh it's clear to me and to him that if you're born in the United States, if you're born in the territory, unless you're a child of diplomat or an invading army in occupied territory, you're automatically a citizen.

00:30:16.240 --> 00:30:19.519 Um that's clearly what the law of use solely says. 00:30:20.160 --> 00:30:28.400 Chief Justice Roberts says at one point in the opinion the English common law rule of use solely crossed the Atlantic unchanged. 00:30:28.640 --> 00:30:37.279 And it's that phrase that kind of is the critical theoretical error that all the rest of the analysis flows from. 00:30:37.440 --> 00:30:39.759 Uh it was radically changed. 00:30:39.839 --> 00:30:45.359 The English common law rule of use solely was that if you were born on the king's, it's a feudal doctrine. 00:30:45.599 --> 00:30:58.160 If you were born on the king's soil, the king, your liege lord, the ultimate liege lord, you owed a perpetual allegiance to the king and could never unilaterally renounce it. 00:30:58.400 --> 00:31:11.839 In other words, it's the feudal doctrine of subjectship in the era of kings, rather than the doctrine of republicanism that our Declaration of Independence sent out, which is based on the consent of the governed. 00:31:12.559 --> 00:31:22.880 Now, if the connection between consent of the governed and rejection of use solely is not clear, look at the last paragraph of the Declaration of Independence. 00:31:23.200 --> 00:31:31.200 It declares that these United colonies are and of right ought to be free and independent states. 00:31:31.680 --> 00:31:36.319 And we hereby absolve all allegiance to the British Crown. 00:31:36.559 --> 00:31:42.319 I mean, it is one of the most eloquent repudiations of the English law of use solely ever written. 00:31:42.960 --> 00:32:00.079 Now, we fought the Revolutionary War over that issue, in part, and then we fought the War of 1812 over this issue almost exclusively, because the king continued to refuse to recognize that people could expatriate, could renounce their allegiance to the king unilaterally without his permission. 00:32:00.319 --> 00:32:09.279 And he thought otherwise, and so he would grab our sailors off of merchant ships and put them to work on his warships if they were captured in the North Atlantic. 00:32:09.359 --> 00:32:11.359 And that's what led to the War of 1812. 00:32:11.519 --> 00:32:14.400 So not just one war, but two wars over this. 00:32:14.640 --> 00:32:28.480 But what really was going on is a radical transformation of the understanding of political authority, that it didn't derive from the divine right of kings, that it derived from the consent to the governed. 00:32:40.480 --> 00:32:46.079 It's because we're equal that nobody has right to or title to rule others without their consent. 00:32:46.319 --> 00:32:56.480 Or as Jefferson so famously put it, it's not that some people are, oh, I'm gonna butcher this phrase, um, saddled and spurred to ride others, right? 00:32:56.559 --> 00:33:00.000 Uh we we that's not the system of government we developed. 00:33:00.319 --> 00:33:09.440 This gets me to, I think, one of the other errors uh in the majority and concurring opinions in the Barbara case.

00:33:09.519 --> 00:33:13.680 And this was the one by Justice uh Brown Jackson. 00:33:14.240 --> 00:33:22.880 She actually argues in her concurring opinion that our Declaration of Independence guarantees universal human equality. 00:33:23.599 --> 00:33:26.400 Opening lines of the second paragraph clearly does. 00:33:26.559 --> 00:33:34.079 Every human being is born or created equal, and they have certain rights because of their equal humanity. 00:33:35.200 --> 00:33:39.920 But she says that requires universal citizenship, right? 00:33:40.160 --> 00:33:41.279 And it doesn't. 00:33:41.519 --> 00:33:53.279 The fact that everybody has a universal right to government by consent doesn't mean they have a universal right to participate in any particular political community that gives effect to those rights. 00:33:53.519 --> 00:33:59.200 In other words, the first paragraph of the Declaration of Independence rebuts her misinterpretation of the second. 00:33:59.440 --> 00:34:16.480 It says when in the course of human events one people decide it's necessary to separate themselves from another, the whole thing is built on the idea of political communities deciding for themselves how to govern themselves, how to determine how best to secure the inalienable God-given rights that they have. 00:34:30.800 --> 00:34:32.719 Those two things are not incompatible. 00:34:32.960 --> 00:34:39.840 The one is the implementation of the other, and it has to occur in a particular political community. 00:34:40.000 --> 00:34:45.039 So the definition of who constitutes that political community is critically important. 00:34:45.280 --> 00:35:00.800 It's why under Article 1, Section 8 of the Constitution, Congress is given the power to make the intensely political judgment about who to include and to welcome into the political community, the power of naturalization to define that. 00:35:01.440 --> 00:35:14.239 How much, from where, how extensive at any given time can we absorb people with different cultures into our society without radically changing the political community that's here? 00:35:15.039 --> 00:35:24.320 This is the essence of sovereignty and the essence of the political judgment that the Constitution assigns to the most political branch, the Congress. 00:35:24.559 --> 00:35:39.679 All of that goes out the window if the 14th Amendment created a floor that is so high that anybody can unilaterally claim citizenship by simply coming here, whether legally, temporarily, or illegally, without our consent. 00:35:39.840 --> 00:35:52.960 And it really does completely undermine the very notion of consent of the government when when that claim of citizenship is a unilateral claim rather than a bilateral consent. 00:35:53.440 --> 00:35:59.599 The example I like to give, the Indian case, the Citizenship Act of 1924, I mentioned earlier. 00:35:59.760 --> 00:36:15.360 But suppose Congress tomorrow, looking at our exploding national debt crisis and the fact that Social Security is about to go bankrupt in less than a decade, why don't we make all 10 million people in Mexico City U.S. 00:36:15.440 --> 00:36:17.920 citizens and have them start paying into it as well? 00:36:18.239 --> 00:36:25.599 All right, well, the folks in Mexico City might say, you know, thanks very much for that offer of citizenship, but we've declined to accept it. 00:36:25.679 --> 00:36:27.760 Uh bilateral consent. 00:36:27.920 --> 00:36:30.159 Well, the other side is equally true. 00:36:30.400 --> 00:36:42.480 Somebody that comes here without our consent, in fact, in direct violation of our consent, of our laws, can't unilaterally lay claim to that consent of the governed and the emoluments thereof. 00:36:43.199 --> 00:36:48.960 And this is, I think, much bigger than the particular question about President Trump's executive order. 00:36:49.199 --> 00:37:08.000 But it is now a global fight about the very notion of ideas of sovereignty and political communities and nation states being able to define their own political communities rather than kind of some borderless international global government. 00:37:08.159 --> 00:37:09.760 And it seems to me those are at stake. 00:37:09.920 --> 00:37:16.400 I just got back late last night from Serbia where I was an official election observer, international observer of their elections. 00:37:16.559 --> 00:37:19.920 And they understand the importance of sovereignty very well. 00:37:20.079 --> 00:37:25.039 I mean, you know, the fight between them and the Kosovoans right next door who've claimed independence. 00:37:25.920 --> 00:37:28.480 They understand that uh extremely well. 00:37:28.639 --> 00:37:32.159 By the way, their elections were so much more secure than ours have been of late. 00:37:32.239 --> 00:37:34.639 It's really stunning, but that's a different topic. 00:37:34.800 --> 00:37:45.920 Um, this, I think, goes to the fundamental transformation that occurred in July of 1776 that has had profound impact the world over. 00:37:46.079 --> 00:37:54.320 And that is the transformation of a feudal society where some are given title to rule perpetually over others. 00:37:54.559 --> 00:38:05.840 And a society that is Republican, small R in form, where it is the ability, the legitimacy of government itself is derived from the consent of the governed. 00:38:06.079 --> 00:38:10.159 And it's why is it necessary that it be derived from the consent of the governed? 00:38:10.400 --> 00:38:17.920 Because none of us are so superior to any other that we have a right to title, uh, a title to rule them without their consent. 00:38:18.239 --> 00:38:27.360 This is this is the most dramatic change in modern times in human history that occurred in that day in 1776. 00:38:27.519 --> 00:38:33.760 And my criticism of the majority's opinion seem is that it seems to have missed the significance of that. 00:38:34.000 --> 00:38:35.199 Now let me close with this. 00:38:35.360 --> 00:38:36.239 What can be done about it? 00:38:36.400 -->

00:38:38.239 The Supreme Court has spoken, right? 00:38:38.559 --> 00:38:39.920 End of story. 00:38:40.639 --> 00:38:42.880 Um they've defined the Constitution for us. 00:38:43.039 --> 00:38:49.199 There's a famous, a famous line by then governor, later Supreme Court Chief Justice Charles Evan Hughes. 00:38:49.360 --> 00:38:54.639 The Constitution is the supreme law of the land, but it is what the judges say it is, right? 00:38:54.880 --> 00:39:01.519 You see how that changes from judicial review to uphold the Constitution, Barryber versus Madison, right? 00:39:01.679 --> 00:39:03.920 Many people think that's judicial supremacy. 00:39:04.079 --> 00:39:06.480 If you go back and look at that opinion, it's not, right? 00:39:06.719 --> 00:39:13.679 If I'm faced with a statute and the Constitution, we all have to give supremacy to the Constitution itself. 00:39:13.760 --> 00:39:16.000 Uh that means the judges as well. 00:39:16.159 --> 00:39:28.320 Um and and so you you you get but you see this transformation from judicial review assessing uh things is compatible with the Constitution or not, to the judicial supremacy. 00:39:28.400 --> 00:39:31.119 We have decided what it means, and that's the end of the story. 00:39:31.360 --> 00:39:36.639 Jefferson, Lincoln, a number of other presidents uh had great cause to dispute that. 00:39:36.719 --> 00:39:38.400 But the most famous one was Lincoln. 00:39:38.880 --> 00:39:52.320 Um of course, uh Lincoln in his first inaugural address, um talking about the Dred Scott decision, says the court has made its decision and it is binding on the parties to the case. 00:39:53.599 --> 00:40:09.920 But if we are to treat a resolution of a particular case involving two private parties as selling as settling a disputed issue that remains hotly disputed, then we will uh uh we will have ceased to be our own rulers. 00:40:10.239 --> 00:40:15.039 And what did Lincoln do in the Congress after Dred Scott, after after Lincoln's election? 00:40:15.840 --> 00:40:21.840 Dred Scott said Congress has no constitutional authority to prohibit slavery in the territories. 00:40:22.159 --> 00:40:27.760 Congress passed the statute, yet again prohibiting territory in the slaveries, and Lincoln signed it. 00:40:28.000 --> 00:40:33.920 Um the Dred Scott decision had said blacks could never be citizens. 00:40:34.480 --> 00:40:46.960 Uh, and under Buchanan's administration, Frederick Douglass was denied a passport because of the Supreme Court's decision, saying he couldn't be a citizen and you had to be a citizen to Lincoln gave him a passport. 00:40:47.199 --> 00:40:54.400 So pushing back against the decision is what he thought was necessary. 00:40:54.639 --> 00:41:12.159 And if you think about it, if it really is a system of three co-equal branches of government, each of which takes the same oath to uphold the Constitution, if the court gets it wrong in the considered judgment of the other branches, are they just to accept the wrong error or are they to try and do something about it? 00:41:12.400 --> 00:41:24.079 We had more recently an example of this, Justice Scalia, one of my favorite justices, I disagreed with him only a couple of times, but one of them was of the Employment Division versus Smith case, right? 00:41:24.320 --> 00:41:28.960 Where he watered down the First Amendment's protection on religious liberty claims. 00:41:29.280 --> 00:41:40.880 And Congress immediately said, you got it wrong, we're going to revive strict scrutiny for religious liberty claims, the religious freedom, the rifra, the religious freedom restoration act. 00:41:41.679 --> 00:41:46.480 And it was a direct challenge to the Employment Division versus Smith ruling. 00:41:46.719 --> 00:41:50.320 Now, at that point, you had two paths available to the court. 00:41:50.480 --> 00:41:56.400 They could say, as it ultimately did, we spoke about that, you have nothing more to say about it. 00:41:56.559 --> 00:41:58.320 We've decided this question. 00:41:58.559 --> 00:42:04.480 Or the other path was one that Justice O'Connor suggested in her dissenting opinion in City of Bernie. 00:42:04.960 --> 00:42:14.719 A co-equal branch of government has it passed a statute that disagrees with our constitutional interpretation here. 00:42:15.119 --> 00:42:23.599 At the very least, we owe it to that co-equal branch of government to give consideration to their considered views about this. 00:42:23.760 --> 00:42:32.800 Now, maybe we'll, after doing that, uh we'll stick with our original opinion, but we owe it to that co-equal branch of government to give it more than the back of the hand. 00:42:33.360 --> 00:42:37.280 The majority gave it the back of the hand, but I think Justice O'Connor was right there. 00:42:37.519 --> 00:42:50.559 Kind of a constitutional deliberation back and forth about the meaning of the Constitution by three co-equal branches that each have an obligation to try and get the Constitution right. 00:42:51.360 --> 00:43:02.559 The other path, it seems to me, is one where both the political branches just kick the can down the road to the court so they don't have to decide tough constitutional questions. 00:43:02.639 --> 00:43:19.039 And the most prominent recent example of this is the Campaign Finance Reform Act of the early 2000s, the McCain-Feingold Act, it's often referred to as both McCain and Feingold on the floor of the Senate conceded that parts of the Act were unconstitutional. 00:43:19.280 --> 00:43:22.960 But then they said it's not our job to sort that out, let the court do it. 00:43:23.199 --> 00:43:33.920 And then it gets over to President Bush, who in his signing statement, he says, Yeah, there are clearly some parts of this that are unconstitutional, but I'm going to sign it anyway and we'll let the court decide. 00:43:34.079 --> 00:43:41.920 And then it gets over the court, and the court says, Who are we to second-guess the considered views of our co-equal branches about the constitutionally

this statute? 00:43:42.000 --> 00:43:43.760 And then they pass and they uphold it. 00:43:44.159 --> 00:43:46.880 It gets finally overturned several years later. 00:43:47.440 --> 00:43:53.519 But nobody was engaging in the serious constitutional analysis that their oaths required them to do. 00:43:53.679 --> 00:44:08.719 And I fear that if we accept this role of the court as the not only Last word, but the exclusive word on constitutional interpretation, we will find ourselves not looking at constitutional questions at all. 00:44:08.960 --> 00:44:17.119 And the constitution will cease to have any meaning reflected by the views of the people, and it will just become a document that is whatever the judges say it is. 00:44:17.360 --> 00:44:24.000 That I think is the deeper lesson to be uh concerned about in Trump versus Barbara. 00:44:24.159 --> 00:44:25.280 But I'll close with this. 00:44:25.440 --> 00:44:36.400 Uh in the wake of that case, there have been about a dozen bills that have been introduced in Congress, some of them directly confronting the Supreme Court's decision, others kind of tweaking at the edges. 00:44:36.559 --> 00:44:40.880 Well, what about what about children born uh in in U.S. 00:44:41.039 --> 00:44:42.719 territories, not in the States? 00:44:42.880 --> 00:44:52.400 You know, kind of it's not directly covered by that, trying to force them uh around it, or redefining subject to the jurisdiction to exclude temporary visitors. 00:44:52.559 --> 00:44:55.119 Uh so we we see those kind of things going on. 00:44:55.360 --> 00:45:06.639 But um uh and I think that's all well and good, because I think it's gonna force the court to kind of give some due consideration to whether it got it right in the first place. 00:45:06.800 --> 00:45:10.960 Um I think that's a good healthy thing for our constitutional system of government. 00:45:11.199 --> 00:45:13.679 I'll end there, and if you have questions, I'll be happy to take them. 00:45:13.840 --> 00:45:14.400 Thank you. 00:45:22.719 --> 00:45:23.760 There you go. 00:45:25.440 --> 00:45:25.679 Yes. 00:45:26.079 --> 00:45:27.039 Uh thank you for being here. 00:45:27.199 --> 00:45:34.880 I'm wondering, do you think the case against birthright citizenship was argued sufficiently well in front of the Supreme Court if there's anything else that could have been done? 00:45:35.360 --> 00:45:40.960 Yeah, so uh I think John Sauer did a very good job, a a great job. 00:45:41.119 --> 00:45:45.840 Um and in fact, I think the Department of Justice from the very beginning. 00:45:46.000 --> 00:45:57.119 Um remember those cases, those first rounds were fought within 48 hours of the Trump executive order issuing, and none of the new appointees heading the Department of Justice were even there yet. 00:45:57.280 --> 00:46:04.800 So I was watching like a hawk to make sure kind of the line DOJ officials weren't going to try and tank the case from the get-go. 00:46:05.199 --> 00:46:11.199 And and you know, I've been

doing the scholarship on this stuff for 25 years, and they came up with stuff that I wasn't aware of. 00:46:11.360 --> 00:46:13.920 They did a very good job all the way through. 00:46:14.079 --> 00:46:17.519 And and I thought uh John Sauer did a spectacular job. 00:46:17.679 --> 00:46:30.480 I just I I just don't think I think uh two of the members of the majority were so locked into what had become the perceived understanding of the 14th Amendment that they didn't want to take take it up. 00:46:30.639 --> 00:46:38.800 And they weren't really willing to confront the issues that both uh Justice Alito and Justice Thomas pressed in their dissenting opinions. 00:46:39.039 --> 00:46:47.840 I think they were probably surprised at the backlash to that decision because they thought they were just taking the safe route, and everybody agrees with this. 00:46:48.079 --> 00:46:50.480 You know, we're not gonna be making any new rules here. 00:46:50.559 --> 00:46:57.519 I think they were surprised at how how the debate had so transformed the understanding of the American people. 00:46:57.760 --> 00:47:01.840 But I also think Cecilia Wong, she was a co-clerk at the Supreme Court when I was there. 00:47:02.000 --> 00:47:04.639 She was with Justice, who was she with? 00:47:05.039 --> 00:47:06.719 Uh Justice Stevens? 00:47:06.880 --> 00:47:07.039 No. 00:47:07.280 --> 00:47:08.159 Justice Souter. 00:47:08.320 --> 00:47:10.000 She was with Justice, I can't remember. 00:47:10.159 --> 00:47:12.239 I think she did a very good job as well. 00:47:12.480 --> 00:47:20.480 Most importantly, in in uh not taking up arguments that almost everybody on her side had argued. 00:47:20.639 --> 00:47:23.840 And that was if we do this, it'll create chaos. 00:47:24.159 --> 00:47:27.519 Uh I mean, the e that would have just given John Sauer an easy answer. 00:47:27.679 --> 00:47:33.760 You mean we can't be expected to do what 190 other countries in the world do, and can't we can't figure this out? 00:47:33.920 --> 00:47:40.800 She deliberately avoided making the chaos argument, where she made a mistake, but but it didn't it didn't matter. 00:47:41.039 --> 00:47:47.280 Um she conceded that the 14th Amendment means exactly the same thing as the 1866 Act. 00:47:47.440 --> 00:47:55.679 But then she said the 1866 Act, when it said excluding those subject to foreign powers meant only diplomats, and it clearly did not. 00:47:55.840 --> 00:48:04.800 Uh and I thought that that might have been a concession that Chief Justice Roberts or Kavanaugh or Barrett might have picked up on, but but they didn't. 00:48:04.880 --> 00:48:06.000 There's no discussion on that. 00:48:06.239 --> 00:48:09.039 But I thought I thought uh General Sauer did a terrific job. 00:48:09.119 --> 00:48:14.480 It just um most people thought he was gonna lose nine to zero and he lost five-four. 00:48:14.639 --> 00:48:18.239 That you know, I think that's a pretty strong argument to get you there. 00:48:18.719 --> 00:48:20.960 And so close. 00:48:24.880 --> 00:48:25.840 Yes, sir. 00:48:30.079 --> 00:48:30.559 Oh yeah. 00:48:31.440 --> 00:48:37.440 Like geographically we're saying like allegiance, um, and your argument of complete allegiance. 00:48:37.519 --> 00:48:41.440 I'm curious what you think about children of people with dual citizenship. 00:48:42.000 --> 00:48:47.280 So uh what do I think about uh people uh children of people with dual citizenship? 00:48:47.760 --> 00:48:54.719 Um theoretically, dual citizenship is a contradiction in terms, right? 00:48:55.199 --> 00:48:58.719 Uh and and if you look at our naturalization statutes, you understand why. 00:48:58.880 --> 00:49:03.280 You can't owe primary allegiance to two different masters. 00:49:03.679 --> 00:49:11.119 It's why, in our naturalization statute, when you become a naturalized citizen, you are obligated to renounce all other allegiances. 00:49:11.519 --> 00:49:11.840 Right? 00:49:12.079 --> 00:49:16.159 Now, so people become naturalized citizens and they keep their Greek passport. 00:49:16.320 --> 00:49:20.320 They've already violated their oath when they renounced all that allegiance. 00:49:20.480 --> 00:49:20.719 Right? 00:49:20.800 --> 00:49:28.400 So why do we have it kind of uh originates with um diplomatic uh niceties? 00:49:28.880 --> 00:49:35.440 Um the British refused to recognize people renouncing their British subjectship. 00:49:35.599 --> 00:49:40.639 Um we fought the War of 1812 over it, but they continue to do it for another 100 years. 00:49:40.800 --> 00:49:44.480 And are we gonna fight the British every time they do that with another war? 00:49:44.639 --> 00:49:48.960 And so we start, ah, okay, you say they're your citizen, we say they're ours. 00:49:49.199 --> 00:49:51.440 We're not gonna we're not gonna fight you over that. 00:49:51.599 --> 00:50:02.079 So it kind of it kind of leads to this idea of dual citizenship, but it's more a diplomatic concession to reality rather than the underlying principle. 00:50:02.320 --> 00:50:06.719 Um, what ought to happen is like like Senator Ted Cruz, right? 00:50:06.880 --> 00:50:11.119 Senator Ted Cruz, father's Cuban, mother's American, but he's born in Canada. 00:50:11.440 --> 00:50:20.159 So he has a legal claim when he comes of age to citizenship in any one of those three. 00:50:22.239 --> 00:50:27.840 By rights, what we ought to do is when he comes of age, make him elect which one he's gonna choose. 00:50:28.079 --> 00:50:31.119 Okay, Ted, you know, that window's been open for you 18 years. 00:50:31.280 --> 00:50:33.119 You got any ideas of which you'd like? 00:50:33.280 --> 00:50:34.880 Make him sign a piece of paper. 00:50:35.199 --> 00:50:36.000 We never do that. 00:50:36.239 --> 00:50:39.119 We really don't have the administrative infrastructure to do that. 00:50:39.360 --> 00:50:48.719 But what we do is infer from your actions which of those three options you have accepted, and therefore implicitly renounced the others. 00:50:48.960 -->

00:50:58.239 And when it became an issue when he first ran for president, he explicitly renounced the others, but but implicitly he had done it by his actions when he came of age. 00:50:58.400 --> 00:51:08.960 Um and again, that therefore uh it keeps it keeps open a window of when you make that election, but it doesn't keep open the possibility of having the dual allegiances. 00:51:10.320 --> 00:51:31.199 Speaking on that topic of um implicit allegiance, one of the arguments is that a lot of these uh legal immigrants who come here have spent 20, 30, 40 years here, they've built lives here, they've got families here, um, and their original, their country of origin doesn't have any effect on their daily life and haven't had it for decades. 00:51:31.840 --> 00:51:38.639 Um is that something that we should recognize as an implicit allegiance, or is this more of a formal inquiry? 00:51:38.719 --> 00:51:55.519 Aaron Powell Well, I think it's more of a formal inquiry, because if you recognize that, then you're kind of recognizing that by your own unlawful conduct, you can alter our principles of consent to the governed just by if you can escape evade, you know, evade uh deportation or prosecution long enough. 00:51:55.760 --> 00:52:00.079 And that doesn't seem to be very compatible with our understanding of the rule of law. 00:52:00.320 --> 00:52:14.880 It's also not very fair to those that have tried to wait in line through the formal processes and had millions of people cut in line in front of them and slow that line down to a standstill for people that are trying to do it right. 00:52:15.119 --> 00:52:21.519 Um and then the other thing, we tried that in 86 by giving this mass amnesty with the idea that that would end it. 00:52:21.679 --> 00:52:26.400 Well, no, all it did is say, okay, we just got to wait long enough and we'll have another incentive to do this again. 00:52:26.480 --> 00:52:31.039 And it's completely disincentivized any compliance with the rule of law. 00:52:31.199 --> 00:52:34.159 And so I think on both fronts it's a it's problematic. 00:52:34.559 --> 00:52:41.760 Who knows what Congress is gonna do because there are heartbreaking stories about people that have been here a long time. 00:52:42.000 --> 00:52:54.159 Um uh but you gotta look at it, it seems to me, in the broader question about what are the incentives long-term uh about upholding the rule of law? 00:52:54.320 --> 00:53:07.440 And if you make this concession to the rule of law just because there are sob stories that, you know, tug at our hearts, you've undermined the rule of law in the long run, and that may be more much more catastrophic than even the particulars. 00:53:10.639 --> 00:53:11.199 Yes? 00:53:11.599 --> 00:53:12.239 Yes? 00:53:14.400 --> 00:53:18.159 I mean, we haven't an ostensibly conservative court right now. 00:53:18.639 --> 00:53:24.480 Realistically, how can we ever expect for this issue to come again in our favor anytime soon? 00:53:24.960 --> 00:53:28.719 So, yeah, it's it's a 3-3-3 court, we should be honest, right? 00:53:28.880 --> 00:53:35.760 Um uh and you know, or maybe two, four, three, depending on how you look at it. 00:53:36.000 --> 00:53:59.760 Um look, uh I I mentioned earlier that I I think Chief Justice Roberts and Justice Barrett have been a bit taken aback by the criticism of their of Chief Justice Roberts' majority opinion, because they thought they were taking just defending the status quo that almost everybody agreed with, except for those crazy Claremont Institute people like Eastman and Erler and others. 00:53:59.920 --> 00:54:09.599 And and the groundswell, it's not just we think you got it wrong, but we think you got it so wrong that you really need to revisit this because our very sovereignty is at stake. 00:54:09.840 --> 00:54:18.880 I think that's caught them by surprise, and which is why I think um some of the moves in Congress to press the issue to get back before them. 00:54:19.039 --> 00:54:23.519 I mean, anything Congress does at this point will immediately be challenged, of course. 00:54:23.679 --> 00:54:27.039 But there are let's see if I can find it quickly here. 00:54:27.280 --> 00:54:42.480 Um Senator Schmidt uh has a bill, the American Citizenship Act, changes the language of the statute 1401 from subject to the jurisdiction to not subject to any foreign power. 00:54:42.800 --> 00:54:46.239 This is picking up on Justice Kavanaugh's concurring opinion. 00:54:46.880 --> 00:54:52.960 If the Constitution means what Chief Justice Roberts says it means, that statute is invalid. 00:54:53.199 --> 00:55:03.920 But by picking up the language of the 66 Act and Celia Wong's concession that it means exactly the same thing in the 14th Amendment, maybe it gives them ground to reconsider. 00:55:04.159 --> 00:55:05.599 Um there are others. 00:55:05.760 --> 00:55:14.320 Uh Senator Cotton says the 14th Amendment adopted you solely, but here's what it means: it excludes illegal aliens and temporary visitors. 00:55:14.400 --> 00:55:16.320 That's clearly not what you solely mean. 00:55:16.400 --> 00:55:18.639 So I think that one's not going anywhere. 00:55:18.800 --> 00:55:28.239 Um but but you've got others that are trying to define subject to the jurisdiction more broadly than the court says the 14th Amendment does. 00:55:28.400 --> 00:55:41.360 Um if any of those passes, of course, they'll immediately be challenged, and under the strength of the Barber decision, the lower courts will immediately enjoin them, and it'll go back to the Supreme Court, and then we'll be faced with the post-RIFRA scenario. 00:55:41.599 --> 00:55:47.360 And to decide whether we're going to follow, you know, the Scalia route, we've spoken and it's over. 00:55:48.000 --> 00:55:58.800 Uh, in the face of all the criticism, or whether they'll follow the O'Connor route, say we owe it to our co-equal branch to give their views on this a considered reconsideration. 00:55:59.039 --> 00:56:01.119 And and maybe we stick with our decision. 00:56:01.199 --> 00:56:12.880 But I think, I think in relatively short order, um, depending on what happens next week, maybe longer than short order, but uh, I think we're going to get such a bill and force a reconsideration. 00:56:13.280 --> 00:56:24.800 And I I wouldn't put it past this court to, um, given the strength of the arguments that have come in, that both initially, but but now in the wake of the decision, to reconsider it. 00:56:24.960 --> 00:56:31.679 Um and, you know, maybe Trump's got some new executive orders about territories and about birth tourism. 00:56:32.000 --> 00:56:38.000 Um of the aspects of the birth tourism order, I I don't think, you know, uh vigorously enforced. 00:56:38.239 --> 00:56:44.639 If you come here and you lie on the visa application by saying you're not pregnant, when you're seven months pregnant, you're gonna have a baby. 00:56:44.800 --> 00:56:52.480 That's fraud in the visa process, and and the direction to DOJ to prosecute those frauds is perfectly legitimate. 00:56:52.719 --> 00:56:57.920 Claiming that the children wouldn't be citizens is a direct challenge to Barbara. 00:56:58.000 --> 00:57:04.079 But I think I think we're gonna see those challenges come uh fairly quickly, you know, maybe not in the next couple years. 00:57:04.239 --> 00:57:19.199 But uh, you know, and and you look at the birth tourism question and the fact that our principal enemy on the world stage has probably got 200,000 young men who had been born here of military age that have been raised in communist schools that can come back to the United States at any time they want. 00:57:19.360 --> 00:57:23.599 I mean, that's an army that we've authorized because of this misbegotten notion. 00:57:23.679 --> 00:57:33.679 And that's gotta, it's gotta have justices thinking: did we just authorize a suicide pact in our interpretation of the 14th Amendment? 00:57:33.840 --> 00:57:38.400 Um, there are lots of lots of things to play out there. 00:57:38.880 --> 00:57:49.440 By the way, uh uh I've got a new monograph on this called Citizenship in the American Regime, and we're releasing it tomorrow night over at the Cosmos Club at the Claremont Institute. 00:57:49.519 --> 00:57:53.280 So, Claremont.org, I think we'll have them available if anybody's interested. 00:57:53.360 --> 00:58:00.880 But it spends a lot more time looking at the political theory of the declaration and how the decision is completely contrary to that. 00:58:00.960 --> 00:58:03.199 And I think that's what was missing. 00:58:04.400 --> 00:58:04.719 Okay. 00:58:05.679 --> 00:58:06.000 All right. 00:58:06.159 --> 00:58:06.880 Thank you all very much.